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Cali. Medical Board is Closing in on Vaccine Exemption Writing Physicians

Cali. Medical Board is Closing in on Vaccine Exemption Writing Physicians

Several vaccine writing California physicians are now under investigation by the California Medical Board. By that I mean that the Board has issued subpoenas to obtain the medical and/or school vaccination records of kids who obtained vaccine exemptions from these physicians. In some cases, the Board investigation is a result of a complaint filed by a parent (usually in a divorce situation where one parent is pro and the other is antivax/vaccine concerned) or by an HMO which acts as the child’s PCP. In other cases, the Board has issued a subpoenas to a school district to identify physicians who have written vaccine exemptions.

In terms of the Board’s ability to obtain patient medical records, the state of the law is that despite the California constitutional right to medical records privacy, in recent times, the California courts have consistently granted the Board access to patient medical records over the patients’ objection.

My view is the fight to protect patient medical records from Board disclosure is basically over in California (except for psychiatric records which are covered by a specific evidentiary privilege which has a higher burden of proof than regular medical records). That brings California in line with pretty much every other state in the country which requires a physician to comply with a board subpoena for medical records, irrespective of the patient’s wishes.

I have no doubt that in all of these investigations, the Board will obtain the medical records of the specific children who are subject of the Board subpoenas.

What will the records reveal? My guess is that in almost all cases, vaccine exemptions were given to healthy children who have a family history or genetic disposition to serious autoimmune conditions. The family history or specific genetic abnormalities, according to the exemption writing physicians, make these children susceptible to severe adverse effects from any and all childhood vaccines, and justify an exemption from all childhood vaccines for some period of time. (This is a distinct minority view at this time).

So, what’s going to happen with these investigations?

(I can speak with some authority because there has only been one Board case, and I worked on it.)

First, after the medical records are reviewed by a Board consultant, the physician will be “invited” to a recorded interview to answer questions from the consultant, the board investigator and the Deputy Attorney General assigned to the case explaining the rationale for the exemption.

(I would advise the physician to be very well prepared for the interview because as the saying goes, “Anything you say will be held against you in a court of [administrative] law.”)

The medical records and the recorded interview will be submitted to two outside medical experts. Both will be pediatricians (if the physician is a pediatrician), and one will be an infectious disease sub specialist. The Board likes to use UC affiliated physicians for added gravitas.

Both will conclude that the exemption was not medically indicated because in essence, there is no medically valid justification for a blanket vaccine exemption for a completely healthy child. Rather, there are specific vaccine contraindications based on each vaccine’s labels, according to the CDC, APA and a bunch of other entities involved in the vaccine issue (to put it neutrally).

Within 60 days from the Board’s receipt of the second expert’s report, an accusation (California term for medical board complaint) will be filed against the exemption writing doctor.

At some point the physician will either fold and accept a stayed revocation/5-year probation or the case will be tried before an administrative law judge who will issue a proposal for decision which proposal will then be reviewed by the Board.

When will this all happen?

My guess is that the accusations against the doctors currently being investigated will be filed by early to mid-2019. At least one of the cases (hint, the one I’m involved in) will go to hearing by late 2019, making the Board’s decision in late 2019 to early 2020. The board has a few months to consider the ALJ’s proposed decision. At that point, the vaccine concerned community and the exemption writing physicians should have an idea of whether these vaccine exemptions will be allowed or are Board disciplinable offenses.

It’s going to be interesting, and there will be some surprises, I promise!

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com

It’s Surprisingly Quiet on the California Vaccine Front

It’s Surprisingly Quiet on the California Vaccine Front

It has now been two years since California rescinded the PBE (Personal Belief Exemption) for vaccinating school kids (SB 277). Let’s take a quick look back and see what can be learned from what has and hasn’t happened.

1. The Legal Challenges to the law were a complete bust
From the get-go, I was extremely critical of the lawsuits challenging the law. (See my earliest posts in the SB 277 section of this web site). The bottom line was/is that so long as it continues to be “accepted science” that 1. Vaccines are safe and effective and serious side effects are rare, and 2. Herd immunity is a thing, no California court will overturn the people’s will (expressed through their duly elected state legislators) to limit PBEs. No U.S.court has ever done so, and for the above two reasons, no U.S. court will ever do so, until the scientific consensus changes PERIOD

Thankfully, the vaccine-concerned have moved on from that folly, after all the challenges were rejected.

2. Here’s some good news: There haven’t been a slew of disciplinary actions against vaccine exemption writing docs (yet)

So far as I am aware, the only physician who has been disciplined for writing a vaccine exemption type letter is Dr. Bob Sears, but that was based on a case before the new vaccine law came into effect. People were afraid that all the docs writing these exemptions would be “targeted” by the board, but that hasn’t happened yet.

A perhaps interesting and important digression about how medical board cases start

Despite how it may seem to those being prosecuted, the medical board doesn’t go out and look for doctors to sanction. Medical board investigations are complaint generated and driven. The board receives information from patients, co-treating physicians, insurance companies and state agencies which either are complaints or contains information that the board determines is a violation of some law or regulation that the board enforces. (In some relatively rare cases, the board itself is the source of the information, like when a physician is on probation and thinks the doc violated a term of probation.)

Even in the vaccine context, someone has to complain to the board about a doctor writing a vaccine exemption.

Advice to California exemption writing docs: Never write an exemption for a child unless both parents request it/are on-board with it, especially if the parents are divorced.

It doesn’t matter if the sole custody parent requests it. Well, actually it does sort of matter, but if the non-custodial parent is not on-board, it is possible to very likely that the non-custodial parent will file a complaint against you, especially if there are on-going disputes between the parents. In these situations, fighting parents lash-out against a third-party like a doc. So don’t put yourself in the middle of family problems.

So who else can complain? Here’s the bad news:

County public health officials have been quietly going around the state and seeking information about which doctors are writing exemption letters and providing that information to the board. Somehow, probably illegally, they are convincing the school officials to turn over privacy protected information about students who have vaccine exemptions. It’s not a HIPAA violation once the school has the information, but it is a FERPA violation (Family Education Rights and Privacy Act). There may or may not be a private right or action for a FERPA violation, but so far, no one has taken a state or county agency to court on a FERPA privacy violation claim. (Too bad, since the case needs to be litigated.)

Based on the reporting on Dr. Bob Sears’ settlement, it appears that the board has received about 50 complaints, half of which have been dismissed or terminated, presumably without a formal board proceeding. (I haven’t heard of any exemption vaccine case having gone to a hearing yet).

Of course that means that half of the 50 board complaints are still pending. My guess is that those case involve only a handful of doctors, at most.

So what’s next on those cases?

My guess is that in the next six to nine months, the board will file accusations against a few other physicians for writing exemptions based on things like family history of autoimmune dysfunction, which I think is a popular basis for vaccine exemption.

More advice to physicians: If you’re going to use family history as a basis for an exemption, there better be very good documentation/details supporting the family history. Same, if not more so for a child’s history of prior adverse reactions. I can categorically state that it’s not enough just to record what the exemption-wanting parent says about a prior adverse reaction. Problem of course is that most adverse reactions are not worked-up because a regular pediatrician tells the parent that it will pass and advises not to come in or go to the ER.

Nonetheless, writing an exemption without at least the prior medical records which record the prior adverse event will be viewed by the board as a violation of the standard of care.

3. Indirect anti-vaccine legislation

There have been a few attempts by the pro-vaxer legislator-in-chief to pass legislation under the guise of children’s rights and other Orwellian Newspeak to abrogate the parents’ power not to vaccinate their children, but it seems like the vaccine concerned community has done a good job stopping that. But expect the attempts to continue in ever increasingly creative and indirect approaches.

The 900 Pound Gorilla

Since even before Robert Kennedy Jr. announced that he was on some to be created vaccine commission, the community has been hoping that Pres. Trump would do something about the vaccine problem, since in the past he has expressed support for the vaccine/autism connection.

Well, there’s no commission yet, and there’s not much going on in terms of presidental initiatives. But with him, you never know, and he could certainly take some game-changing action. Just don’t hold your breath.

The big unknown

I think it’s fair to say that so far, the medical board has acted deliberately, and even cautiously in dealing with the medical vaccine exemption issue. One settlement in two years, and that wasn’t even a case under the new law. Of course these cases take time, and two years from complaint to hearing is not a long time, especially if the parents don’t give permission for the release of the child’s medical records, which requires the board to go to court to get them.

So for whatever reason, we still don’t have any law or guidance about whether doctors who write exemptions for other than the labeled contraindications for each vaccine will be sanctioned by the board. What I can tell you is what you already know, namely, the standard of care for the majority of pediatricians is that there is basically never a reason to fully exempt a child from all childhood vaccination, and that following the labeled contraindications for each vaccine is the standard of care for exemption of specific vaccines, according to the speciality groups (AAP, AAFP, etc.) and the governmental agencies (CDC).

There is an argument to be made that there is another standard of care and if a doctor follows it, he/she shouldn’t be sanctioned, but my guess is that it’s going to take at least another year or two to get some board and court opinions on it.

And this just in

China is also having problems with vaccine manufacturing.

Here is a post about it which just broke today

https://www.cfr.org/blog/chinese-parents-pharma-industry-worried-sick-after-latest-vaccine-scandal

My prediction

In the next two years we’ll get some governmental legal clarification about the contours of writing exemptions, but until then, frankly, we’re all just winging it.

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com