The Supreme Court defined the term services under the Individuals with Disabilities Education Act ("IDEA"),
As a general matter, services that enable a disabled child to remain in school during the day provide the student with the meaningful access to education that Congress envisioned." Garret F. ex rel. Charlene F., 526 U.S. at 73 (internal quotation marks omitted). Related services therefore include a range of supportive services, such as transportation, speech pathology and audiology services, psychological services, physical and occupational therapy, therapeutic recreation, social work services, counseling services, and diagnostic and evaluative medical services. Id.; see 20 U.S.C. § 1401(26), (33).R. A-G v. Buffalo City Sch. Dist. Bd. of Educ., 12-CV-960S, at *2-3 (W.D.N.Y. Jun. 30, 2013)
In order for students with disabilities to have access to FAPE as Congress envisioned, they should receive services as set forth in the Act regardless of where they are able to attend school. The school has an obligation to ensure that students with disabilities receive FAPE even if the school itself cannot provide same.
If a recipient is unable to provide a free appropriate public education itself, the recipient may place a person with a disability in, or refer such person to, a program other than the one it operates.
When vaccine exemption laws are repealed or exemptions are denied, a school is no longer able to provide an education to students with disabilities with certain vaccination status. Therefore, the school has a duty to place these students in an alternative school setting.
The Act provides that,
A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.
This section clearly sets forth that the school “remains responsible for” ensuring that the student with a disability receives the services he/she needs if that student is placed elsewhere. Accordingly, when students with disabilities are denied access to public school due to their vaccination status, and thereby lose services under their 504 plan, the school should remain responsible for ensuring that the students receive services in another environment.
An argument could be made that because the school does not need to place students without disabilities in another school setting, requiring placement of students with disabilities would give students with disabilities an advantage rather than equal access to FAPE. However, students with disabilities would not necessarily have the ability to attend any another school as easily as a nondisabled student as they might need accommodations in order to have access to FAPE. Being denied entrance to public school inherently disadvantages students with disabilities more than nondisabled students and this is contrary to the purpose of the Act.
Because students with disabilities are being denied services they need in order to have access to FAPE provided under the Act, in practical effect the removal of vaccine exemptions disproportionally affects students with disabilities greater than students without disabilities even if the change in the law does not make such a distinction.
Accordingly, students with disabilities have valid complaints that their rights under the Act are violated due to the removal or denial of vaccine exemptions and could consider filing a complaint with OCR.
