New York's Repeal of the Religious Exemption Violates Rights of the Disabled Under The Rehabilitation Act Of 1973

 

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On June 13, 2019, New York legislators swiftly repealed the religious exemption to vaccination without public hearings. The controversial bill (A2371) was pushed through the Assembly and the Senate in one day and quickly signed by Governor Andrew Cuomo. ¹ It passed the Assembly 77-53 with a margin of only one vote and now affects more than 25,000 children (about one percent of all school children) with religious vaccine exemptions attending daycare and public or private schools, including those with disabilities enrolled in special education programs. ²

Under the new law, children were given 15 days to receive the first dose in a series of age appropriate state required vaccines, which are to be administered according to the Centers for Disease Control (CDC) schedule, and were ordered to show papers that the remaining required vaccinations were scheduled no later than July 14, 2019. Any student, who fails to either follow these orders or submit a valid medical vaccine exemption signed by a New York state licensed physician, will be denied admittance to all public, private or parochial schools, day care facilities and state operated special education programs. ³

Without notice, children of all ages and health conditions, whose parents had filed religious exemptions with the State of New York, were suddenly denied admittance to summer classes, day-care, school run therapies and other special education programs unless their parents immediately renounced their deeply held religious beliefs and the children received all state required vaccinations. Although home schooling is an option, many parents of these disenfranchised students, including those who are already vaccine injured or with health conditions that make them vulnerable to being harmed by vaccines, are not qualified or financially and otherwise able to home school their children or obtain private educational services. 

On July 15, 2019, a group of parents whose disabled children are being denied special education services and therapies attended a Department of Education Board of Regents meeting to protest what has happened to their children and plead for assistance, but were told that the Board of Regents were not involved in the creation of the new vaccine law and there would be no discussion of it that day. ^{4 5} The next Board of Regents meeting is Sept. 9-10, 2019 but it is unclear whether the parents’ concerns will be addressed at that meeting. ⁶

It is clear that the religious freedom and civil rights of all New York residents have been affected by a law that forces families to choose between upholding their religious beliefs or continuing their children’s school education.  Families and schools from across the state have reported that their lives have been turned upside down as children are being kicked out of school. Vaccine injured and other disabled children are being denied badly needed therapies and other services to support their education, and entire schools are having to shut down because of a sudden drop in enrollment. ⁷ However, it is the students struggling with disabilities, who are shut out of services that they and their parents must rely on, who have been especially hit hard with this sudden reversal in the law.

The federal government has long protected the legal right of students with disabilities to obtain a school education  Enacted to secure equal access to public education for students with disabilities, Section 504 of the Rehabilitation Act of 1973 (“the Act”) guarantees equal access to free appropriate public education (FAPE) and services in all programs that receive federal financial assistance. ⁸

The Act provides procedural safeguards that a federally funded institution (school) must follow in order to assure that all students have access to FAPE.  When a violation of the Act is suspected, a student with disabilities or someone on their behalf may file a complaint with the Office of Civil Rights (OCR) of the Department of Education.  Schools found to be in violation of any provision of the Act are subject to enforcement action including administrative proceedings that may terminate financial assistance provided by the US Department of Education.

The Act sets forth that students with disabilities have the right to receive other “education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met.” ⁹

Under the Act, a student is evaluated to determine whether he/she has a protected disability. If the student qualifies, a 504 plan is developed, and services are implemented that are necessary for the student to be able to receive FAPE on par with a student without a disability. Services may include physical, speech or occupational therapy and other interventions and services deemed a prerequisite for the student to receive FAPE. ¹⁰

In New York, these necessary services have been abruptly terminated for students whose parents had filed religious vaccine exemptions on their behalf because the family’s deeply held religious or spiritual beliefs were in conflict with vaccination requirements. ¹¹ The fact that students with disabilities are being barred from attending school and receiving necessary special education therapies, without immediate access to alternative services and therapies, means they are being denied a free appropriate public education in violation of federal law.

In states that have repealed the religious vaccine exemption, parents of children with disabilities may consider filing a complaint with OCR for numerous violations of the regulations and provisions guaranteed to students with disabilities as set forth under The Rehabilitation Act of 1973.

There is a detailed analysis of the 1973 Act and guidelines for filing a complaint with OCR on NVIC’s website here. Register for the free online NVIC Advocacy Portal here and receive emailed Action Alerts when vaccine-related bills are filed in your state and will be put into direct electronic contact with your own legislators so you can take action to protect your legal rights.

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