On August 16, 2019, the New York State Education Department (“SED”) released additional guidance on implementing the recent changes to New York state’s Public Health Law, which repealed the religious exemption from vaccinations for school-age children. This most recent guidance addresses several questions regarding the new law’s impact on districts’ obligations to students with disabilities.

Signed by Governor Cuomo in June, the new immunization law mandates that all children aged two months to 18 years receive certain immunizations unless they can establish a medical exemption. If they do not, they cannot attend school.

SED and the Department of Health (DOH) issued guidance to school districts on this topic on June 18,  July 22, and most recently August 16.

We know under the new law that parents who choose not to vaccinate a student with a disability must still ensure children of compulsory school receive an education. Students who remain unvaccinated and without a medical exemption must now be homeschooled (i.e., “home instructed”) by their parents. But the change in law prompted the question of whether school districts are obligated to provide special education services, including related services, to homeschooled students who are unimmunized. SED did not expressly address this issue in its two previous guidance documents.

SED has now confirmed that unimmunized students with disabilities who are provided home instruction from their parents are still entitled to receive special education services in accordance with an individualized education services program (“IESP”) developed by the district of residence’s committee on special education. However, unlike immunized students, these students cannot be on school grounds or be on school buses to travel to the school district to receive their designated special education related services.

For other homeschooled students with disabilities who are immunized, the board of education determines where the special education services will be provided. Usually, the district provides the services either at the student’s home or at a school district building depending on the type of service and its frequency. The board of education has the discretion to designate where the services will be provided based on the most efficient and effective strategy. Cost savings to the school district would be one factor the board of education considers in making this efficiency determination.

For unimmunized students with disabilities with IESPs, the SED guidance states that these students cannot be on school grounds; so districts no longer have the discretion to determine that their special education related services can be provided at a school. The board of education’s discretion is now limited in making these decisions on location of services — which could be the student’s home, a service provider’s office, or public gathering sites such as community centers or libraries. Furthermore, this latest guidance states that if the board of education determines to provide the services at an alternate site, not the student’s home, the district remains responsible for providing transportation unless the parent drives the student to the alternate site. However, according to SED, the student could not be transported on a school bus with other students; so other means of district-funded transportation would need to be provided.

SED did not include much legal analysis in support of this guidance. Instead, SED simply concluded that homeschooled students are entitled to special education services in conjunction with the academic instruction provided by their parents. In reaching this conclusion, SED sidestepped a number of important issues including whether homeschooled students receiving special education services are deemed “enrolled” in school, which would seemingly trigger a duty to be vaccinated. Similarly, SED failed to consider the many public policy concerns (e.g., exposing students and staff members to unvaccinated students) which prompted the recent change in law.

Going forward, the most critical questions for districts and boards of education will concern where special education services will be made available to unimmunized homeschooled students. Additional costs may be incurred for districts to locate and secure alternate public locations other than schools, transportation costs to bus these students to these locations without other students on the bus, and the time and expense of having staff travel to student homes and/or alternate locations. Another issue not raised by SED is the extent to which it may be difficult for school districts to find instructors and related service providers willing to provide services under these circumstances. The guidance suggests that districts can retain outside special education service providers to serve these unimmunized students if its current staff will not provide these services to unimmunized students outside of the school building.

Lastly, SED acknowledged that parents of homeschooled students are generally required to request special education services by June 1 preceding the school year for which the request for services is made. In light of the timing of these recent developments, SED has encouraged school districts to honor untimely parental requests for the 2019-2020 school year if those requests were prompted by the repeal of the religious exemption to the vaccination requirements.

Finally, the most recent guidance from SED noted an important distinction between homeschooled students and students who receive homebound instruction (frequently called “home tutoring”) from their public school district. Homeschooled students are educated by their parents under certain conditions and pursuant to an individualized home instruction plan (“IHIP”). In contrast, students who receive homebound instruction attend school in their school district (or a private school), but are temporarily educated at home due to a medical need. Students who receive homebound instruction (unlike students with IHIPs) must continue to be immunized, unless they have received a medical exemption, to the same extent as their peers who attend school.

Read the three SED guidance documents from June 18, July 22 and August 16.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.