Most readers of the School Law Advisory are well aware of the childhood immunization debate that has gone on in Maine and nationally. We do not mean to step into that thicket, but instead want to highlight Maine’s own addition to that debate. As you likely know, the Legislature has approved and the Governor has signed into law changes to 20-A M.R.S.A. § 6355 regarding exceptions to the immunization mandate in Maine. The changes in this law could sharply increase the number of Maine children not attending public or private school. Whatever your views on that, we think it is important to be aware of various special education issues that could arise out of the exclusion of these children. Let us explain.
Immunization Background
Maine law has long required every child attending public school to provide a certificate of immunization in accordance with the law. This law previously had three exceptions: one was a physician’s exception if immunization is “medically inadvisable,” another was for a “sincere religious belief” that is contrary to immunization, and the third is for opposition to immunization “for philosophical reasons.” The 2019 amendments to 20-A M.R.S.A. § 6355 removed the exceptions for religious belief and for philosophical reasons, leaving only the exception for when a parent provides the school with a written statement from a licensed physician, nurse practitioner, or physician’s assistant that a required immunization would be “medically inadvisable.”[1] As stated in the law, the superintendent of schools must not permit enrollment of students who do not meet the immunization requirements or the permissible exemptions.[2]
The law clearly applies to attendance in public schools, and seems also to apply to attendance in private schools.[3] The removal of the exemptions for philosophical or religious beliefs takes effect on September 1, 2021.
Application of Law to Special Education Students
As the Legislature moved toward a total removal of the religious and philosophical exemptions to the immunization requirement, this raised a question about the impact of the change on students with disabilities who might no longer be permitted to attend school.
The Legislature addressed this issue as follows. The new law includes an exemption for students who had a philosophical or religious exemption on or before September 1, 2021, AND who were covered by an IEP on September 1, 2021. Note the limits in this exemption. The student must have an IEP on September 1, 2021 (when the change in the law takes effect), and the parents of the child also must have claimed the religious or philosophical exemption by that same date.
In essence, this exception grandfathers a group of students with disabilities from the new law’s requirements. But it has no impact at all on students with disabilities who become eligible after September 1, 2021, or on identified students with disabilities whose parents do not first claim the religious or philosophical exemption by that date.
Legal Issues Relating to Children in Special Education
In terms of special education, the upshot of this law is that children with disabilities who are identified for special education after September 1, 2021 must be prevented by the superintendent of schools from enrolling in the public school system, and also likely must be excluded from private schools as well. This means that the only permissible school attendance option for these students will be the home schooling option in Maine.
But children in home schooling programs do NOT have a right to a free, appropriate public education (“FAPE”) under Maine law.[4] This would mean that public schools would have no duty under state law to provide an IEP or deliver services in an IEP to a child with a disability who has been excluded from school by virtue of this law.
Is this permissible? Here is the dilemma that will undoubtedly arise. The federal special education laws require each participating state to ensure that every identified child with a disability receive a free, appropriate public education. Ultimately, it is the state itself that carries this duty, although the duty is regularly delegated by state law and rule down to local school units.[5] In some cases, undoubtedly, the families of unimmunized children will prefer to have those children in home schooling programs. But in some cases, they will not. And if a parent wants a child with a disability to attend public school, but is not allowed to do so by virtue of this law, it is the State of Maine that has created a category of child who is banned from receiving a FAPE, despite the federal law requiring the state to ensure that all identified children receive that FAPE.
In other words, at least for children identified as disabled after September 1, 2021 whose parents want them to be attending public school, the State of Maine appears to set up a legal structure that will deny those children access to any special education services at all – whether in school or out of school. This development would seem likely to give rise to litigation regarding the delivery of the federally guaranteed FAPE to this category of student. One would assume the litigation would run against the State of Maine, not against local school units, because it is the State of Maine that has created this legal structure, rather than any particular local school unit.
It is difficult to be sure what the outcome of any such litigation would be. Certainly at the present time, such claims are not ripe because the change is not yet in effect. And none of this might materialize if a statewide referendum in March 2020 sets aside the change being discussed here. But one should recognize that this special education issue lurks out there, and at some point is likely to rear itself up and compel a clear answer as to just what the proper interplay would be between the federally guaranteed right to FAPE and Maine’s immunization standards.
[1] See 20-A M.R.S.A. § 6355(2).
[2] See 20-A M.R.S.A. § 6355.
[3] See 20-A M.R.S.A. § 6353(7) (definition of “school” includes public or private elementary and secondary schools in Maine).
[4] See MUSER § IV.4(H)(3) (2017).
[5] See 20 U.S.C. § 1412(a)(1)(A); MUSER I (2017).
