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The Cali. Medical Board is Stuck Between a Rock and a Hard Place on SB 276 (updated with the good news links)

The Cali. Medical Board is Stuck Between a Rock and a Hard Place on SB 276 (updated with the good news links)

Last week, the Medical Board of California held a multi-location public hearing and comment on SB 276. By accounts, there were many excellent speakers making cogent points against SB 276. The consensus of opinion was that the Board members listened attentively and heard the concerns of the speakers. And that’s a very good thing.

The result per a recent press release was that the members of the Medical Board support the concept of the bill but not the particulars, presumably meaning the Board is quietly recommending that the bill be reworked.

Apparently, what the Board likes is that the vaccine exemption process contains a consent to release the exemption applicant’s medical records to the Board, thereby solving its asserted difficulty in obtaining medical records in its investigation of exemption writing doctors. What it doesn’t like apparently is the limitation of exemptions to CDC contraindications and precautions, and perhaps it wants some clarification on who in the government makes the decision.

And therein lies the dilemma which the Medical Board faces: SB 276 violates the Board’s prime directive and core principle, which is that medical decision making is the practice of medicine, and that requires a doctor/patient relationship.

A corollary is that the doctor/patient relationship always has certain requirements like a direct interaction/communication (most often initially, face-to-face) and a contemporaneous written record of the interaction.

Obviously, vaccination exemption decisions by public health officials are not consistent with this.

And you know what else SB 276 isn’t consistent with?

The actual CDC guidelines which ostensibly (but not in reality) SB 276 is nominally effectuating.

Who is supposed to make the vaccine contraindication decision according to the CDC?

If you guessed state or public health officials who may or may not be a licensed California physician, you guessed wrong.

The CDC’s contraindications page makes pretty clear that the guidelines are meant for the physician or the “Persons who administer vaccines should screen patients for contraindications and precautions to the vaccine before each dose of vaccine is administered… The provider should ask the parent or guardian if the child is ill. If the child has a moderate or severe illness, the vaccination should be postponed.”

Even the CDC contraindication based limited analysis involves medical decision making which is basically called vaccine counseling.

But of course, the person doing the vaccine administering isn’t the person doing the actual screening for contraindication, at least in the sense of deciding whether the vaccine should not be administered.

(As an aside, the CDC technically doesn’t issue any guidelines for physicians. Here is something from a recent email from the CDC:

“CDC does not have guidelines for exemption. Vaccination exemptions laws are a matter of state (or local) law, and/or institutional guidelines.
What some may use, or interpret as reasons for medical exemption, are contraindications, and perhaps precautions, as listed in the General Best Practice Guidelines at
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html, particularly in table 4-1. The language from California quoted below specifically names contraindications listed by CDC.
How a state uses that information is their prerogative.
M. Suzanne Johnson-DeLeon, MPH
Health Education and Information Specialist
Immunization Services Division
National Center for Immunization and Respiratory Diseases, CDC”)

Meaning the CDC is passing the buck to the states

This all reminds me of that commercial for the online security service. You know the one where the dentist looks into a patient’s mouth and says “Boy, that’s the worst cavity I’ve ever seen.” The patient tells the guy, “Ok doc fix it” to which the guy in the white dental coat says, “Oh, I’m not a dentist, I’m just a dental monitor. You’ll have to go to an actual dentist to get it fixed.”

So, based on 2018 medical exemption numbers, four thousand medical exemption consultations are going to play out that way, or actually worse. Because the dental monitor will have to tell the patient that the state official who approves the actual dental procedure, who you won’t ever see or speak to, isn’t going to approve it, so just go home and be in pain the rest of your life.

So, here is the Medical Board’s dilemma:

It might be arguable that having public officials make exemption decisions based solely on contraindications might be consistent with the Board’s core principle because 1. There are very few contraindications, and 2. Contraindications are vaccine specific and mostly temporary. I suppose it could be argued that for contraindication based decisions, there is little discretion or decision making. You either have and can document a contraindication or you can’t.

It gets harder with CDC precautions since some of them “may” justify a delay in some vaccines. The word “may” necessarily involves discretion, which in the medical biz, means medical decision making.

And of course, any basis for exemption beyond CDC contraindications and precautions involves full-on medical decision making. And that, according to the Medical Board’s core position, is the practice of medicine.

My view is that once SB 276 went beyond CDC contraindication, it turned all the public health officials into potential felons for practicing medicine without a license (theoretically at least). The California physician licensed health state health officials who deny exemptions would be violating the Medical Board’s core principle of making a medical decision without a doctor/patient relationship.

The dilemma is that it appears that members of the Medical Board now understand that CDC contraindications and precautions are too narrow to protect Californians from potential harm from vaccination. Meaning there are some children who should not be vaccinated even though there is not a group of CDCs recognized contraindications or precautions which would justify exemption under the current version of SB 276. But on the other hand, suggesting that the bill be amended to include other factors like family history and genetic considerations, puts the public health officials’ decision deeply in the realm of activities which the Medical Board actively regulates with rules under the core principle that medical decision making requires a doctor/patient relationship.

What might a Board proposed amendment look like?

It might look like this:

If the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which public health official does not recommend immunization, that child shall be exempt from the requirements of Chapter 1 (commencing with Section 120325, but excluding Section 120380) and Sections 120400, 120405, 120410, and 120415 to the extent indicated by the physician’s statement.

Ok, all I’ve done is taken SB 277 and replaced “physician” with “public health official.”

Would anyone at the Medical Board think that makes any sense and/or are comfortable with having public health officials make such an important medical decision for families? I hope not, and from initial accounts, the Governor also doesn’t like the idea. Good for him!

The Board’s two obvious responses to SB 276

In short, some person has to have the authority to make vaccine medical exemption decisions. It is the physician under SB 277 (current law), but it is a public health officer under SB 276.

The Governor and some members of the Medical Board are starting to push back on this, as they should. Hopefully, a majority of the members of the Medical Board will realize that SB 276 is fundamentally and irreparably inconsistent with the Board’s core principle. This will require the Medical Board to inform the Legislature that it does not approve of SB 276. I hope it will follow the Governor’s lead and do just that.

HOWEVER, there is currently a high degree of concern if not fear amongst the physicians writing broader medical exemptions. They took Senators Pan and Allen seriously when they informed the public during the SB 277 fight that physicians had the discretion to write exemptions based on family history, even beyond immediate family. Having relied on the Senators’ public statements, these physicians are now under attack by the very people who publicly approved these broad-based exemptions.

The Medical Board needs to take a hard look at exemption writing and come-up with some guidelines. Many in the vaccine concerned community might not like that for fear that the Board would just endorse CDC or some other limited basis of exemption. That is certainly possible. But I’ve heard many stories from the parents of vaccine injured children, and I think those stories would powerfully impact the Board, as I believe they did last week at the Board’s public meeting.

I have been very impressed with the community’s self-organization, and I feel it is up to the task of presenting a convincing case supporting the broad exemptions which Senators Pan and Allen previously advocated.

If SB 276 does die, the exemption writing physicians are going to need some clarity or at least clarification about what’s permissible, and on some of the technical things like exemption documentation requirements, and even things like temporary exemptions. Otherwise, my guess is that every exemption writing physician will eventually face Board action. I know that some of the Board’s outside experts seem to think that any exemption beyond CDC contraindication is not valid, regardless of whether or not it is consistent with the language of SB 277. And that for sure needs to be rectified by the Board.

In short, I’m hoping the Medical Board will say NO to SB 276, and instead start the process of issuing a policy statement/guideline to clarify the seemingly very broad discretion and expansive factors/considerations which Senators Pan and Allen advocated during their public selling of SB 277. I think that would be the best way to protect the rights of the vaccine injured who need medical exemptions beyond CDC contraindications, and give some needed reassurance to the few physicians writing them.

The hard working folks at Educate. Advocate (https://www.educateadvocateca.com/sb-276/
facebook.com/EducateAdvocate) wanted me to post some of their links to the good news things mentioned above (and for which they deserve a big chunk of the credit (along with a couple other very effective groups (shira, christina and dana))).

Governor Newsom comments regarding medical exemption bill SB 276 June 1, 2019 http://bit.ly/NewsomNoSB276

Press Release of Medical Board of California Meeting regarding SB 276 May 28 2019 http://bit.ly/SB276PR

Transcript of Medical Board of California committee concerns
http://bit.ly/MBCConcernsSB276

YouTube Video of Concerns by Medical Board of California board members
http://bit.ly/VIDEOMBC

(Links proved by Kristie Sepulveda-Burchit, Educate. Advocate.)

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Remembering what the Politicians said about the scope of medical exemptions under SB 277

Remembering what the Politicians said about the scope of medical exemptions under SB 277

On Monday May 13, 2019, there will be a perfunctory hearing on SB 276 at the Senate Appropriations Committee.

If this was covered by the Las Vegas bookmakers, the smart and even the dumb money would be on it passing easliy out of committee along party lines.

Still, it’s not a bad time to remember what the politicians said and promised when the PBE was removed under SB 277 and how no-one need worry because of the robust medical exemption process would could be written by any Cali. physician. Well of course it hasn’t worked out that way.

So here are the main statements by the politicians about how broad medical exemptions could be: (My thanks to Greg Glaser, Esq. who actually put it together.)

The concluding sentence of Governor Jerry Brown’s signing statement, dated June 30, 2015, was as follows: “Thus, SB 277, while requiring that school children be vaccinated, explicitly provides an exception when a physician believes that circumstances –in the judgement and sound discretion of the physician – so warrant.”

And here is the Assembly Bill Analysis on SB277:

“A medical exemption letter can be written by a licensed physician that believes that vaccination is not safe for the medical conditions of the patient, such as those whose immune systems are compromised, who are allergic to vaccines, are ill at the time of vaccination, or have other medical contraindications to vaccines for that individual patient. Every state allows medical exemptions from school vaccination requirements.
This determination is entirely up to the professional clinical judgment of the physician.” [emphasis added]

The legislative intent of SB277 is further evidenced by the following transcripts of the official public hearings on SB227. See e.g. Assembly Committee hearing transcript, dated June 9, 2015:

“Rob Bonta: Thank you, Dr. Pan. And then finally, we have an amendment regarding the medical exemption and a physician’s judgement. And I’ve heard from a number of constituents and Californians regarding concerns that a medical exemption is difficult to obtain or was difficult to obtain. I believe that current law states that a physician has complete, professional discretion over the writing of a medical exemption. However, I have asked the author to take an amendment to clarify that a medical exemption is entirely within the professional judgement of a physician and we have agreement on that amendment.

“SB277 bill author Richard Pan: Yes.”…

See also SB277 bill Co-Author Ben Allen in that same hearing, “One of the things we’ve talked about over and over again is how important it is that there be a strong and robust medical exemption so that anybody who has a legitimate medical concern, genetic predisposition, some sort of immunological problem, they can go to a doctor anywhere in the State and get an exemption from that doctor.”

SB277 bill Author Richard Pan further addressing the State Legislature during these hearings, “If the physician feels there is a genetic association, with a sibling, a cousin, some other relative, it’s not safe for a vaccine, they can provide a medical exemption for that vaccine. There is no limitation….
“We are trying to create the space to allow doctors and their patients and their parents to work together, hand in hand.”
“… that may be family related, that therefore that child is also at increased risk eventhough that child has not yet suffered harm, then they can exercise their professional judgment to provide an exemption.”

The medical issues referenced in the above-cited legislative history, such as “genetic association” cited by Senator Pan are not officially listed contraindications to vaccination. Rather, they are precautions to vaccination recognized in different measure in different medical communities to justify a medical exemption to vaccination.

Indeed, in their Winter 2016 Newsletter sent out to all California doctors, the Medical Board of California provided guidance on any new Medical Legislation for the previous year.http://www.mbc.ca.gov/Publications/Newsletters/newsletter_2016_01.pdf ( “this bill [SB277]specifies that when issuing a medical exemption, a physician must consider the family medical history of the child.”).

I guess it’s alittle dissappointing, but not entirely surprising to the vaccine concerned.
Only thing I’ve got right now is for you to keep reminding the legislators and their staffs what was promised, and tell them that regardless of how few doctors are writing exemptions now, they’re not the bad guys just because they are following the literal words of the legislators who promoted and passed SB 277.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

What Happens if Cali. SB 276 Becomes Law?

What Happens if Cali. SB 276 Becomes Law?

Let’s face it, there are strong rumblings that the Dems are lined-up behind SB 276 in the Senate Appropriations Committee and in both houses in general.

That’s bad news for the vaccine concerned whose kids either have or will seek a medical exemption from all childhood vaccines. Basically, under CDC/AAP/AAFP guidelines, there is no such thing as an exemption from all childhood vaccines throughout the duration of childhood, at least not for otherwise healthy kids. And you can forget about the whole fragile child or vaccine fragile child thing. It doesn’t exist in CDC land.

What exists are CDC recognized contraindications (and you can list those on one hand, with a couple fingers left over). The amended bill adds CDC recognized vaccine precautions, some of which may come from vaccine package inserts. Here is the CDC’s list of contraindications and precautions.
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.pdf But vaccine precautions will not get the vaccine concerned an all-vaccination exemption throughout childhood.

Under the bill’s timetable, Current exemptees will get through the first part of the 2020-2021 school year, but I predict many will have their exemptions rescinded in the first few months of 2021. There may be eight or nine thousand exemptions which will be filed (or more). My guess is that the district health officials, rather than state officials will do the revocations, so the revocation workload will be spread around the state. Supposedly, there will be an internal review/appeal process, presumably by state health officials.

Sounds pretty bleak and it is, but let’s just play this out, get into the weeds of how this is likely to work, and explore possible legal remedies, few and relatively weak though they may be.

But before that, let me answer some questions I’ve received from comments to my posts and via email. (Sorry but I can’t answer most of the emails I get regarding the law and possible legal strategies. I deal with these inquires via my posts.)

1. Can you judicially stop the legislative process from passing SB 276?

That’s a Hard No. Passing laws is the legislators’ job. You can’t use the courts to stop them from doing their jobs just because you (and a small, albeit vocal group of your like-minded friends) don’t agree with a bill, even if you think it’s unconstitutional, un-American, vioates the Nuremberg Code, the Helsinki Doctrine, the Belmont Report, or the Code of Hammurabi.

2. What about the fact that the Chairman of the Appropriations Committee said he didn’t do a financial impact analysis of the bill, but is still voting for it. Can he be impeached?

Another Hard No. Courts don’t interfere with the legislative process and legislators have absolute immunity. Besides, the legislators seem to believe they are dealing with a potential health crises, so cost issues are secondary, or more likely irrelevant from their point of view, as erroneous and benighted as you think that point of view is.

3. Isn’t there a constitutionally protected right to a medical exemption?

One highly regarded vaccine attorney/professor advocate tells me that the 1905 Jacobson case, which started the whole mandatory vaccination jurisprudence, created a constitutional right to a medical exemption. She’s probably right, but I don’t see anything in that decision or other such constitutional decisions about who can make that decision, in part because the exemption issue wasn’t really the heart of the case (called the holding in legal terminology).

4. OK Mr. Lawyer, then is it legal for a state or district public health official who is not a licensed medical doctor to deny or rescind a medical exemption which after all is a very important medical decision?

Excellent question, grasshopper! But it’s complicated.

Surprisingly, the Medical Board of California has officially taken no position on the bill. The California Medical Association supports the bill. So, I’m going with neither have a problem with non-physicians making these important medical decisions. And obviously, the Dems in the legislature think SB 276 is legal, and presumably have been so advised by legislative counsel.

5. But it is constitutional or illegal?

Sorry, but I can’t give a yes or no answer to this. There does not appear to be direct legal precedent. Of course, two states already have that kind of exemption decision-making in place, West Virginia and Mississippi. However, I’m not aware that the issue has been litigated in those two states. So, we’re probably talking about a precedent setting case.

And based on what happened after SB 277’s passage, I suspect that there will be multiple lawsuits challenging SB 276 on a variety of bases. I repeatedly complained about the SB 277 lawsuits and said they would all fail.
(See my prior posts at http://rickjaffeesq.com/category/vaccines/page/4/

I won’t be making the same prediction on SB 276 lawsuits, at least not with the current version. For reasons which I won’t discuss at this time, I think the amended bill goes too far in terms of medical decision-making by non-physicians, and it’s possible that the California courts might agree. After all, as I pointed out in an earlier post, “Hey Numbnuts: there’s a reason they’re called medical exemptions.” See: http://rickjaffeesq.com/2019/03/26/cali-sb-276-moves-to-eliminate-physician-medical-exemptions-but-hey-numb-nuts-theres-a-reason-theyre-called-medical-exemptions/

Ok so there might be some legal challenges to the law, but:

What about challenges to individual denials of exemptions or revocations of existing exemptions? Can aggrieved parents sue?

I’m predicting that lawsuits will be filed against the state and local officials and governmental agencies who deny or rescind exemptions. However, there are some legal and procedural hurdles.

California law allows a legal challenge to a final administrative order of a governmental agency, by way of what is commonly referred to as an administrative mandate action. It happens all the time when medical doctors or other licensed professionals appeal to the Superior Court after a licensing board takes disciplinary action. But of course, this is a new law, so there is obviously no legal precedent for this kind of case. So for now, I am sticking with the general rule that people have a right to appeal a final administrative order (until I find something out to the contrary). Arguably, federal due process jurisprudence would require such a right to appeal, but that might need to be litigated as well, since as, stated, it’s a new law.

There are some practical and financial challenges to these future actions, but nothing insurmountable

Civil lawsuits cost money, even administrative mandate actions, starting with the filing fee, which is usually $450. Then there’s service of process fees, and some other court costs.

Class actions are a possibility, but they have their own logistical headaches. The courts don’t love class actions, and they seem to want the common issues to predominate over each case’s individual issues. A better solution might be a bunch of parents in the same district filing suit suing one district and maybe the state, for the internal review. That way, the filing fee could be spread around. The proof might differ, since each case would be different, but each case would also have some common elements. Or suits could be filed per a specific reason for an exemption, thereby increasing the common elements. Point being, there’s some flexible approaches to lighten the court cost load.

Of course, there are legal fees, but here again they get spread around amonst the plaintiffs (probably technically called petitioners.) Also, I have the general sense that money could be found. These kinds of actions might draw much attention, nationally even. It could be the first time that vaccine exemption cases get litigated, or at least partially judicially reviewed. (I’ll explain what I mean by that in another post.) My sense of the national vaccine concerned community is that the money won’t be a big problem. But then I’ve always been a “build it and they will come” kind of guy. And let’s just say I’ve built things before, so I’m reasonably confident.

Another issue is that normally administrative mandate proceedings are done on a cold record, and on papers, without an evidentiary hearing, just an oral argument for the lawyers, no trial. Based on some of the stories I’ve heard from parents, it would be a very good thing to get the parents before a judge. I think that may be possible even in cases like these. I’ve got some ideas, but there’s no need to get into it now since we’re just seeing how this thing might play out. But for sure, the goal would be get the parents (and maybe a doctor or two) before the judge.

In short, educate the California judiciary, one judge at a time, or a whole lot of them at a time. Some of these cases could find their way into the courts of appeals, and eventually the California Supreme Court might weigh-in.

There could be many, dozens or even hundreds of these cases. Who knows, all with an eye to educating the California judiciary, one judge at a time.

Think of it as a Plan B.

Rick Jaffe, Esq.
rickjaffeesaquire@gmail.com

Dr. Bob Sears Medical Board Case Update: LA Times tries to squeeze, shame and goad the California Medical Board to go after Bob Sears and other vaccine exemption writing Docs harder and faster

Dr. Bob Sears Medical Board Case Update: LA Times tries to squeeze, shame and goad the California Medical Board to go after Bob Sears and other vaccine exemption writing Docs harder and faster

We recently received hearing dates in late May, 2018 for Dr. Bob’s hearing before an administrative law judge. The case is primarily about his writing a note excusing the child from vaccination due to two prior severe vaccine reactions.

But May, 2018 apparently is not soon or severe enough for the LA Times which today published a story complaining that Dr. Bob and many other doctors are still writing medical exemptions that don’t meet the standards of medical exemptions by conventional pediatrics and the CDC (under which standards there are no medical conditions which justify a blanket exemption from all vaccines throughout childhood). The Times seems to want all these docs rounded out or put out of business today.

The title of the article says it all:

“Why hasn’t California cracked down on anti-vaccination doctors? A loophole in state law”

Here is the article:

http://www.latimes.com/local/lanow/la-me-ln-vaccine-doctors-20171106-htmlstory.html

The article has some interesting quotes from Senator Ben Allen, one of SB 277’s authors about the intent of the bill and how he doesn’t support the medical board trying to intimidate doctors who write exemptions. The article also quotes Jay Gordon, another prominent vaccine concerned doc opining that it’s up to the doctor to decide whether to give an exemption or not.

Maybe the board is moving slowly because it’s starting to realize that the issue is more complicated and nuanced than the rabid pro-vaxxers make it out to be.

In working on Bob’s case for the past year, a couple things have come out that surprised me, and having been in the cutting-edge medicine field for more than 30 years, not much surprises me these days.

First, in looking for academic experts for the case, I keep hearing the same thing over and over again. The academic expert is concerned about vaccine safety but can’t go public because of fear of reprisals from the vaccine Mafioso. I find this understandable but disheartening.

Second, I keep hearing about doctors, beyond those in the vaccine concerned movement, who aren’t fully vaccinating their kids, but they are doing it quietly.

Third, there is a black hole out there when it comes to any information other than full-on negative against the vaccine concerned. Scientists not being able to get their work published. Hell, I wrote a simple update on Bob’s case and raised some issues about aluminum, and got banned from Huffington Post for doing so.

This is one of the few areas in medical science and policy where a point of view is considered too dangerous to have openly expressed in the general media apparently. I suppose I understand the reasoning behind it: fear of creating fear which could/would reduce vaccination rates. Seems wrong to me.

If there are any brave academic pediatricians willing to take a stand, get in touch.

Rick Jaffe, Esq.
Rickjaffeesquire.com
www.rickjaffe.com