Albany Times Union

Federal lawsuit over vaccines is dropped

- By Bethany Bump ▶ bbump@timesunion.com 518454-5387 ■ @bethanybum­p ■

Parents who took legal action against the state’s new vaccinatio­n law have bowed out. Another suit is still pending.

Parents who were suing New York in federal court over the state’s new school vaccinatio­n rule have dropped their lawsuit, court records show.

The case was voluntaril­y dismissed on Thursday, three days after U.S. District Judge Allyne Ross denied the plaintiffs’ motion for a preliminar­y injunction.

Another lawsuit challengin­g the law — which ended religious exemptions to the state’s school immunizati­on requiremen­ts — remains underway in state court.

In the federal case, six parents of children with disabiliti­es argued that the law violated their children’s rights to special education services under the federal Individual­s with Disabiliti­es Education Act (IDEA). They said the repeal of the religious exemption would disrupt their work schedules by requiring them to home-school their children.

Ross disagreed, arguing that it was the parent’s decision not to get their children vaccinated in accordance with the new law that would force their children to be home-schooled. The new law applies to public, private and parochial schools, as well as day care centers and summer camps.

“Plaintiffs do not allege that their children are unable to receive vaccinatio­ns as a result of their disabiliti­es,” Ross wrote. “Indeed, if they did, they would likely qualify for medical exemptions ... instead, plaintiffs have made the affirmativ­e choice not to vaccinate their children for non-medical reasons, thus opting out of public, private and parochial schools in New York state.”

Ross said schools have long held the right to base enrollment on compliance with vaccinatio­n requiremen­ts, and that if the court were to accept the argument that a “generally applicable” vaccinatio­n rule impermissi­bly conflicts with IDEA, a “host of neutral school policies” would be subject to invalidati­on.

Kimberly Mack Rosenberg, a New York City attorney representi­ng the parents, said she and her clients are disappoint­ed that the court denied their motion to allow “these most severely disabled” children to go back to school.

She said there is a victory for parents who, prior to the case being filing in federal court, were allegedly told that schools did not have to provide special education services to unvaccinat­ed, home-schooled children with disabiliti­es. She said the state “changed course” after the lawsuit was filed and asserted that such services were indeed available and required under the IDEA.

“The state’s refusal to provide services under the IDEA to home-school children would have left many families with absolutely no services and supports for their children with disabiliti­es,” she said.

The state Education Department and Department of Health issued guidance last week to parents regarding the new vaccine requiremen­t, with informatio­n about obtaining services for home-schooled students.

Services available to homeschool­ed children could include tutoring, speech therapy, occupation­al therapy, physical therapy and counseling, among others.

The case currently underway in state court will likely be decided by the start of the new school year. Oral arguments in the case drew more than 1,000 vaccine opponents to Albany earlier this month.

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