Following a serious outbreak of measles in the summer of 2014, the California Legislature moved swiftly and in July 2015, passed a strict mandatory immunization bill. The new law applies to all children who attend private or public daycare, nursery school, elementary and secondary school or developmental centers within the state. The new law is codified as Health and Safety Code §12035 et seq and is effective July 1, 2016.
Prior to the adoption of the new law, parents could forego mandatory vaccination by filing either a medical or personal belief exemption.
Now parents must comply, obtain a temporary personal belief exemption before January 1, 2016, obtain a medical exemption, homeschool their child or leave the state unless the child has an active IEP.
For many parents in California, this means that they will have to obtain current immunizations and bring them to the school upon request. Per Health & Safety Code §120325 mandatory vaccinations include diphtheria, hepatitis B, Haemophilus influenza type b, measles, mumps, pertussis, polio, rubella, tetanus and varicella (chicken pox). The State also reserves the right to add additional immunizations at a later time.
The new personal belief exemption is temporary in nature. It must be obtained before January 1, 2016, and will give parents a longer period of time to develop other options.
By way of an example, if a child is in her first year of preschool and the family files the personal belief exemption by January 1, 2016, no further proof of immunization would be required until kindergarten. If the exemption is filed for a child in kindergarten, no further proof would be required until 7th grade. Whereas if the exemption is filed for a child in 6th grade, proof would also be required by 7th grade (See FN 1).
A medical exemption is also possible.
The medical exemption requires that the child’s doctor provide a written statement documenting why the particular vaccine or vaccines would be unsafe for the child. The exemption can be based on medical history or other factors. Some possible bases for the medical exemption might include a prior vaccine reaction, a history of seizures, a family history of genetic or autoimmune disease or any other medically relevant circumstances that demonstrate that the vaccine would be dangerous for the child.
How easily a parent can obtain a medical exemption will depend on the presentation of their child and the philosophy of the individual doctor. Most doctors are strongly in favor of all childhood immunizations and may not be sympathetic to the wishes of parents to space shots or desist from shots. Other doctors may be willing to work with parents in view of the child’s individual presentation.
If the initial doctor refuses to justify the medical exemption, parents would need to seek a second opinion. It is unclear whether the school will accept or challenge a medical exemption but were the school to do so, it appears that parents would not have a basis for appealing the decision.
Students With An Active IEP
Health and Safety Code Section 120335 (3)(h) does have language exempting students with active IEPs from complying with mandatory immunization. This provision was likely included to make sure that California law does not conflict with federal law which guarantees access to education without any immunization requirement. Therefore, if you do not want to immunize your child, you need to be aware that §120335 (3) (h) explicitly exempts him or her and be prepared to direct your school district to the provision should you be requested to furnish current immunization records (See FN 2). Do not assume that your school will be aware of this provision, especially initially.
How the State will Enforce the Law
lf schools are required to collect information regarding vaccine compliance and provide it, upon request, to their local health department. Failure to do so would result in possible loss of licensure or operating permits; thus, it is likely that schools will comply. Therefore, it is important for parents to be knowledgeable about their options and move forward quickly.
If you need further help in understanding the operation of this law and /or calculating how long your personal belief exemption will apply before you need to comply or submit a medical exemption, please contact this office. If you would like assistance in locating a medical doctor who can properly evaluate your child for a possible medical exemption, we are happy to assist as well.
FN 1) For parents who wish to take advantage of a window period before the law is applied to their child, they can still file a personal belief exemption as long as they do so by January 1, 2016. If they do this, their child will not have to show proof of vaccination until the next “grade span”. Proof only need be furnished once at each “grade span”. Grade span is defined as birth-preschool; developmental kindergarten through 6th grade and 7th through 12th grade.
FN 2)Health and Safety Code Section § 120335 (3)(h) states: “This section does not prohibit a pupil who qualifies for an individualized education program, pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program.”
California Immunization Law October 2015 Update
Notwithstanding the seemingly clear vaccination exemption for students with an IEP, Orange County Department of Education is taking the position that students will not be admitted to school without proof of current immunization.
“The law doesn’t say they aren’t exempt,” said Ronald Wenkart, general counsel for the Department of Education.
Given the seemingly clear pronouncement in the statute itself, that IEP students are exempt from complying, I looked to the California Department of Health but found that they are also providing less than clear guidance on the topic.
In a memo dated July 2, 2015, Dr. Sarah Royce, a medical spokesperson for the Department, opined that IEP students would still need to provide immunization records to their schools before entry.
This week, (October 2015), in a follow-up call to the Department, a spokesperson for Dr. Royce told me that the Department was still trying to figure out how to harmonize the IDEA provision guaranteeing a free appropriate education without limitation with the mandatory immunization requirement. The Department representative told me that it would be up to each school district to decide how to interpret the law, and they would not be involving themselves or giving further guidance at this time.
Now, therefore, the state of things appears to be less black and white than the law would suggest, with the possibility that individual districts may attempt to lock unimmunized IEP students out of school, an ironic development, given that IDEA is principally an access statute.
Also, as of today, we learned that the efforts to gather signatures for a referendum were unsuccessful.
We will continue to update you on this issue as it continues to develop. Please do not hesitate to contact us if you have further questions.
 She also told me that it would be up to each school to decide whether to accept or reject a medical exemption if one was provided and that the Department of Health would not get involved.