New York vaccine law does not violate IDEA – Update – no injunction

On June 13, 2019, a revised New York vaccine law, which removed the religious exemption to its school immunization mandate, was signed by the governor. Anti-vaccine activists filed a lawsuit against the law, claiming it violates the First Amendment – a claim that flies in the face of extensive jurisprudence.

On July 26, 2019 a second lawsuit was filed against the law claiming it violates the IDEA act by keeping children with disabilities out of school, led by attorney Kim Mack Rosenberg who was involved in arguing against California’s law (though anti-vaccine activist’s Robert F. Kennedy’s jr. organization, Children’s Health Defense, took credit for it as well). Attorney Rosenberg is clearly highly competent, though unfortunately, also very anti-vaccine, and made the best case possible for her claims.

While there is not the same extensive jurisprudence on this issue as there is on other issues, there are good grounds to reject the claims here, since, as spelled out by public health scholars Ross Silverman and Wendy Hense, the barrier to children’s access to services is parental choice not to vaccinate, not a state-created impediment that targets children with disabilities. Other claims in the lawsuit are also problematic.

The New York vaccine law case

The case involves five families, six parents, and six children, ranging in age from five to thirteen, with a range of disabilities including Down Syndrome, ASD, and speech or language delays. Much of the lawsuit is devoted to touching descriptions of the (no doubt real) difficulties the change in law imposes on the families and the children.

Especially painful to read was the day when the two five-year-old twins saw the school bus come to pick up other children, struggled to get out of their pajamas and put on their clothes, and were distressed and inconsolable on seeing the bus they associated with a program they, apparently, enjoyed leave without them. No doubt losing services is hard on the children; no doubt, as well, homeschooling is harder for a parent of a child with special needs, and the choice to homeschool imposes burdens on any family. Further, the lawsuit describes a situation in which services supposed to be given at home were denied by the district based on the change in the law.

The lawsuit, therefore, paints a painful picture of what the families face. Then it makes several legal arguments:

  1. IDEA (Individuals with Disabilities Act) prevents keeping these children home: The IDEA and its predecessor, the Education for All Handicapped Children Act, were created to address a real problem of under-serving disabled children. Free Appropriate Education Under these acts must be provided at public expense and at a level that meets the individualized educational program of the child. This means the state has to provide the services regardless of immunization status. The lawsuit points to two guidance documents in which the Department of Education made it clear that children with medical exemptions kept home for their safety during outbreaks of measles and H1N1 must be provided their IEP services at home at the same level.
  2. Due Process Guarantees in IDEA were violated: IDEA requires notice and opportunity to object to parents before stopping the provision of services to a disabled child. The change in law did not come with these.
  3. Religious exemptions are of long-standing: The lawsuit pointed out that religious exemptions existed in New York since 1963, apply to a small percentage of children in New York, and claims there was no public health emergency justifying the change because the outbreak was too small, the state did not use other measures it had (like quarantine) and there was not enough deliberation before the law was passed.

Let’s take each of these points about the suit against the updated New York vaccine law in turn.

IDEA Prevents keeping the Children at Home:

The lawsuit correctly points out that in California, an exemption was added for children with IEPs, exactly because of concerns on whether this conflicts with IDEA. In my view, there are policy considerations on both sides of whether to exempt children with IEPs in this situation.

The reasons for exempting them are that these families do face more challenges in homeschooling, and those anti-vaccine families with IEPs are probably a tiny enough minority not to undermine herd immunity – and that a potential question about IDEA might be enough to lean towards exempting them from the requirements.

They are not similarly situated to others. On the other hand, there may be more families like this than I suspect, and in some schools, with large special services programs, they could lead to creating a dangerous hot spot for outbreaks. However, whether this is good or bad policy is not the question before the court – especially when there are arguments both ways. The question before the court is whether this conflicts with IDEA.

The California legislature was concerned about it; but in a recent and powerful article, health law scholars Ross Silverman and Wendy Hensel made a powerful case that IDEA does not require exempting students with IEPs. It is worth quoting the core of their argument:

Despite IDEA’s strong emphasis on providing access to services in public schools, it is unlikely that Congress intended the FAPE (Free Appropriate Public Education) requirement to preempt categorically a state’s ability to apply its otherwise enforceable laws equally to children with disabilities. Although there is little precedent on this issue, the Office of Special Education Programs, a division of the US Department of Education, has indicated it has no authority to interpret state laws, even when they are used as the basis on which to deny services under the IDEA.14 There also is no evidence that California’s childhood vaccine law was intended to discriminate against students with disabilities, that it is more difficult for this population to comply with its provisions, or that the law will have a disparate impact on these students. Children with disabilities and those without disabilities are similarly situated and are treated equally by the state for all purposes relating to the vaccination law. In such circumstances, parental choice to forego vaccination, rather than school district refusal to comply with the IDEA, is the proximate cause of the denial of FAPE and the requirements of access.

The IDEA explicitly gives parents the right to withhold consent to services and to revoke consent once services have started. Some courts have even inferred the absence of consent based on questionable parental behavior when seeking services. Parental insistence that a state meet conditions that are not required by the IDEA16 and refusal to cooperate with a district’s process to receive services17 have both been found to be sufficient to relieve districts of the obligation to provide FAPE because of a lack of consent. Parents who insist on the waiver of otherwise enforceable vaccination laws before accepting or continuing services would seem to fall into both categories.”

I think Silverman and Hensel are completely right. The state is not refusing to educate these children – they are losing services because their parents are choosing not to vaccinate them. The parents have, under law, the right to refuse services and keep not protecting the children; but they cannot force the state to waive a legitimate, non-discriminatory requirement for receiving education services any more than parents of non-disabled children can.

In this case, Down Syndrome, ASD and speech impairments are not contraindications to vaccines; these children apparently – and rightly – do not qualify for medical exemptions, and the reason they are not vaccinated is parental choice: that choice, with a strong mandate, can be fairly interpreted as parental choice to refuse school services.

It is important to remember that part of the justification for strong school immunization mandates is that they work – they lead to most parents vaccinating. Like all other children, children with disabilities deserve not only an appropriate education but also to be protected from diseases with our safe, effective vaccines. Not applying the law even-handedly to them would give their parents less incentive to protect them – and is unfair to those whose families would protect them under a strong mandate.

What about the two guidance documents the lawsuit references? They do not, actually, change the situations. In both cases, the guidance documents addressed situations in which the state ordered children with disabilities kept home during an outbreak. In this case, the exclusion was directly ordered by the state, with no parental choice involved – and in that scenario, it is appropriate to require the state to continue to provide services. That is not the same situation as home services.

Finally, what about home services? In my view, it is completely inappropriate to refuse to provide services at home because of a law that conditions school attendance on vaccination; the law does not address home services. Districts refusing to provide such services were mistaken.

Luckily, it seems like this situation is about to be corrected, and home services provided again – as stated in a Facebook post by anti-vaccine activist John Gilmore:

Michael Smith and I attended a meeting today in Albany with Beth Berlin, Acting Commissioner of Education, Chris Suriano, Assistant Commissioner for Special Education, and Shannon Tahoe, Deputy Counsel. It was a productive meeting. It is important to remember that the NYS Education Department had nothing to do with the repeal. They have had the task of enforcing it thrust upon them, and the spirit of the repeal, kicking kids out of school, is diametrical opposed to the mission of education.

One important take away from the meeting was that Suriano stated, and we asked him to repeat the statement, that “homeschooled students with IEPS are entitled to a free and appropriate education and that that they will be provided with that education.” That statement is directly at odds with a report that has been sent to me by at least a dozen times today from Empire State Supervisors and Administrators Association (ESSAA) that recaps a meeting with soon-to-be former Commissioner MaryEllen Elia (Elia submitted her resignation at the last Regents meeting).

The report states, “The Commissioner (Elia) stated that homeschooled students who participate in any school-related activities are now required to have the mandated vaccinations. The law also applies to special education students who are homeschooled but receive certain supports such as speech therapy or physical therapy from their home district as part of their IEP requirements.” This statement is not an accurate description of the new law. Mandatory vaccines do not apply to homeschooled students receiving IEP services, and as Ms. Tahoe said, the law only applies to students who have been “admitted and enrolled” in a school, which by definition excludes homeschooled students. It is also inconsistent with the statement Mr. Suriano made in the presence of Acting Commissioner Berlin. We hope discussions with NYSED can diminish the impact of the repeal.” [emphasis added. D.R.]

New York vaccine law

Finally, it’s important to point out that even if the Judge were convinced that the law is in tension with IDEA, the judge can order the law interpreted to not apply to students with IEP, covered by IDEA; this argument does not require complete striking down on the law.

Due process concerns

Unlike the IDEA arguments, where there is no clear legal resolution to the case, and the judge will have to examine the issues in the first instance, the due process claims are misguided. The lawsuit’s due-process claim is built on the lack of provision of notice and opportunity to protest to the parents.

But the act creates such guarantees for individual parents addressing individual issues, and due process guarantees generally are not applicable to a legislative proceeding. This is actually a well-settled area of law. In 1915, the Supreme Court in Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915), ruled that notice and hearing due process guarantees do not apply to general legislative enactments which apply to more than a few people in the community.

The rationale is twofold. First, it’s impractical to give a large number of the community and individual hearing before making general policy. If it were required, no legislative changes could be made.

Second, the protections against the general policy are via the political process – not trial-like procedures. Here is a short summary of the issue as taught in administrative law course.

The long duration of religious exemptions:

Yes, New York passed its religious exemption together with its first vaccine mandate. Dr. Paul Offit summarizes the role of Christian Scientists in adopting the exemption – which was initially aimed thought to be for small groups of specific religions only (see Note 1). But our jurisprudence makes it very hard to limit religious exemptions to such groups – for good reasons, because courts do not want the government to oversee souls, but the result is still that it’s hard to prevent abuse of religious exemptions.

New York is in the midst of an abnormally large measles outbreak. The majority of the victims are unvaccinated children. As much as the lawsuit tries to paint the outbreak as trivial by looking at the entire population of New York, the reality is that we have many more cases than we should – and over 100 people, mostly young children, were hospitalized, several suffered lasting complications.

The legislature is on very solid grounds to conclude that this outbreak suggests that the balance set in 1963 between giving the privilege of religious opposition to vaccines – something not constitutionally required – and protecting the public from diseases should be reexamined.

Further, the attempt to blame authorities for not sufficiently using quarantine powers is jarring, coming from anti-vaccine sources. Consider what the argument is. Anti-vaccine activists have made efforts to convince parents in the affected areas not to vaccinate using misinformation. These parents did not vaccinate. A measles outbreak ensued.

Anti-vaccine activists continued to work to scare people from vaccinating during the outbreak. Robert F. Kennedy Jr., claiming a part in this lawsuit, was one of the people speaking up to further mislead people in New York during the outbreak. Now, in a suit against the state, anti-vaccine lawyers are complaining that the state did not do enough to stop the outbreak anti-vaccine efforts caused, an outbreak they contributed to in real-time. This is troubling – especially since the state has made repeated efforts to stop the outbreak, as have local authorities.

Update – 19 August 2019

On August 19, 2019, Judge Ross from the Federal District Court of the Eastern District of New York denied a preliminary injunction in the case, because “plaintiffs have not demonstrated a likelihood of success on the merits.” Specifically, the judge found that the act is not preempted, because it is the plaintiffs’ choice, not the state’s act, that denies them access to services. In the words of the court:

Plaintiffs’ children qualify for services under the IDEA, and they are entitled to continue to receive those same services if they return to school. Their status as children with disabilities, however, does not entitle them to an injunction banning the enforcement of a neutral, widely- applicable state law. Plaintiffs’ objection to the repeal constitutes an affirmative choice to opt-out of public, private, and parochial schools—not a unilateral action on the part of defendants that interferes with or alters their rights under the IDEA. As a result, and for the foregoing reasons, they are not entitled to either a preliminary injunction or a stay-put order, and their motion is DENIED.

Update – 23 August 2019

Plaintiffs decided to withdraw their claim, which means this suit is ended but there’s no barrier to these plaintiffs, or others, making similar claims in the future.

In a post on the Autism Action Network Facebook page, the lead attorney for the plaintiffs made this statement:

Looking strategically at the decision from federal Judge Alleyne Ross denying a preliminary injunction in V.D. v. State of New York, we made the decision to voluntarily dismiss the action and our notice of voluntary dismissal without prejudice was filed on Thursday, August 22, 2019.

There was something of a victory out of this litigation despite the denial of our request for a preliminary injunction. Many districts had been informing families that New York State Education Department (NYSED) was telling districts they did not have to provide services to homeschooled children who do not have all mandated vaccinations. After the filing of our complaint and motion papers, NYSED – in its opposition to our motion, and in the August 16 guidance from the New York State Department of Health- reversed that position and is now telling districts to provide services (there is an issue with the 6/1 deadline to notice districts but none of these families knew they would need to consider homeschool on 6/1 and NYSED is “encouraging” districts to provide services to families who provide post-6/1 notice).

We are looking at additional avenues to address issues regarding children with IEPs, so while this specific case has been dismissed, work is continuing. We continue to be committed to these issues for all children in New York, not only children with special needs.

Conclusion

Although there is not the same extensive jurisprudence on whether school vaccine mandates without non-medical exemptions need to exempt disabled children because of the IDEA act, there are strong legal reasons to reject the argument. At the end of the day, these children are denied services because their parents decided not to protect them from diseases, not because the state discriminated against them based on their disability.

It is, of course, sad to see children doubly deprived – refused protection from vaccines by misguided parents, and kept out of school by the actions of the same misguided parents – but choices have consequences, and the parental choice to refuse vaccines does not require the state to allow these parents to make schools less safe from disease.

We will see where the court goes, but even if the court is convinced that the IDEA act requires exempting children with IEPs, the ruling would, ideally, apply only to the minority of unvaccinated children with IEPs, not to all unvaccinated children.

As a last point of information, the lawsuit is still in the document stages; today, August 15, 2019, Attorney Rosenberg submitted a response to the state’s response essentially repeating the claims in the lawsuit against the updated New York vaccine law. A hearing has not yet been set.

Notes

  1. Paul A. Offit, Deadly Choices: How the Anti-Vaccine Movement Threatens Us All (2011), p. 140. 

This article was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.