Wendy Fritzen Hensel

Valuing lives: Allocating scarce medical resources during a public health emergency and the Americans with Disabilities Act (perspective)

Public health emergencies from natural disasters, infection, and man-made threats can present ethically or legally challenging questions about who will receive scarce resources. Federal and state governments have offered little guidance on how to prioritize distribution of limited resources. Several allocation proposals have appeared in the medical literature, but components of the proposed approaches violate federal antidiscrimination laws and ethical principles about fair treatment. Further planning efforts are needed to develop practical allocation guidelines that comport with antidiscrimination laws and the moral commitment to equal access reflected in those laws.

Squaring State Child Vaccine Policy With Individual Rights Under the Individuals With Disabilities Education Act: Questions Raised in California:

In response to the 2015 Disneyland measles epidemic, California implemented a law, known as Senate Bill 277 (SB277), that eliminated the availability of nonmedical religious or personal belief exemptions from public and private school and day care vaccination requirements. This law made California only the third state (along with Mississippi and West Virginia) to limit its vaccine exemption to medical grounds. As the American Academy of Pediatrics recognizes, the effectiveness of a state’s vaccination policy in preventing vaccine-preventable diseases relies heavily on the stringency of the policy’s exemption and the use of implementation and enforcement authority granted to the health departments, and the schools and day care centers into which these children enroll. Nonetheless, pro-exemption advocates have successfully convinced many state legislatures to expand or maintain broad vaccine exemptions; more than one-third of states permit parents to use a practically unlimited range of justifications to opt their children out of vaccine requirements. Furthermore, advocates continue to challenge state vaccination laws and enforcement authority in court (although generally unsuccessfully), bringing costly legal actions against states, health departments, departments of education, schools, and local school districts. Early assessments of SB277’s elimination of nonmedical exemptions indicate that it is contributing to a reduction in the number of California parents who choose to exempt their children from school immunization requirements. However, the law also raises questions for states attempting to balance public health protections with other important public interests. As described in detail later in this article, a section of SB277, as well as guidance provided by the state health department, appears to establish a new way for students receiving school-based services under the federal Individuals With Disabilities Education Act (IDEA) potentially to have their own form of exemption from state vaccination requirements. SB277 was, unsurprisingly, challenged in court in Whitlow v California. The case raised novel legal and policy implementation questions about how to balance state authority to protect the public’s health against the federal IDEA law, which guarantees children with disabilities the right to a Free and Appropriate Public Education (FAPE) in the least restrictive environment. The plaintiffs claimed that California’s new vaccine mandate gives schools the right to prevent children who receive special education from enrolling in public school altogether, denying their right to receive FAPE in the least restrictive environment, in violation of the IDEA. Furthermore, the plaintiffs claimed that the varying approaches adopted by school districts in response to California’s law resulted in the disparate treatment of children with disabilities across communities, also in violation of the IDEA. The plaintiffs in Whitlow voluntarily dismissed their case after the judge refused to issue a preliminary injunction stopping the implementation of SB277. Although the judge never reached the question of whether this federal law overrides state vaccine policy, if the new IDEA-based exemption were interpreted broadly and pursued vigorously by qualified families, it could offer a novel form of vaccine exemption to as many as 1 of every 9 California students, as well as substantial variation in infectious disease control and protections from one school district to the next. If advocates for broader vaccine exemptions are able to convince legislators and