It’s been two years since California rescinded the personal belief vaccine exemption, so since the fall of 2016, vaccine-concerned (VC) parents of school aged kids have needed to find a physician to write vaccine medical exemptions for their children.

Right after the new law went into effect, the California Medical board filed charges against one of the most prominent VC docs, Bob Sears, for writing a court-case related letter excusing a child for all future vaccination based on the mother’s report of two serious adverse events. The non-custodial father filed the complaint. The case made many docs who wrote exemptions nervous and caused some lawyers to advise their doctor clients to stop writing exemptions. Some became more nervous when Dr. Sears agreed to a significant board sanction, (including monitoring of his practice) earlier this summer. Unfortunately, despite the sanction and monitoring, according to Dr. Sears’ facebook page, the board is investigating him for several other complaints involving exemptions. (In full disclosure, I worked on Bob’s case for awhile, but everything in this post is based on publicly available information).

While all this was happening, the medical board and other state and county health agencies were looking for information about other doctors who were writing medical exemptions. They haven’t been very successful, in part because of federal school privacy laws which restrict schools from releasing student medical information,(The law’s acronym is “FERPA”), and perhaps more importantly, because one California lawyer has made it his personal crusade to help parents protect their children’s school privacy rights. (That would be Greg Glaser, Esq.)

FERPA and Greg’s protection has made it somewhat difficult for the board to take action against other doctors, because the board needs a complaint about a specific patient to open an investigation. Normally, a complaint-based investigation is limited to the patient who is the subject of the complaint. Once there is a complaint, the Board can obtain the physician’s medical records for the patient who is the subject of the complaint, either by the consent of the parents, or via a subpoena for the records served on the doc. Many docs have refused to comply with these subpoenas, citing patient privacy and lack of patient consent. Recent court cases have ordered physicians to produce patient medical records, even over the objections of the patients/parents. That makes California like all or almost all other states, in that a medical board can obtain patient medical records for a pending board investigation, and investigations are commenced by someone filing a complaint regarding a specific patient.
The normal board practice in California and other states has been to limit the investigation to the subject of the complaint.

But apparently not any more!

The board has just served a California doctor with something called “Investigative Interrogatories” and is demanding that the physician give the name and contact information of every patient for whom the physician has written a medical exemption. This seems unprecedented in California medical board practice or case law, and arguably beyond the board’s statutory authority, but that’s what the board is doing.

Why is the board doing it? Like I said, it’s been two years since the elimination of the personal belief exemption, and the board has only disciplined one doctor, despite the fact that there are still many thousands of seemingly healthy children who are medically vaccine exempt. So maybe the board is feeling the heat from the Legislature or the state and county departments of health. And because of federal FERPA school privacy laws, the aforementioned Greg Glaser, Esq., and the fact that the board can’t investigate without a specific complaint, the board may see this new tactic as a faster and more efficient process to identify the main vaccine exemption writing docs and bring them before the board on charges on dozens (or more) cases at one hearing. Seems like this could be a big problem for the vaccine writing docs.

I’ve been tasked to stop it.

If the board doesn’t back down, we’ll end up in court, or more likely two courts (superior court and the appellate court), as the loser will surely appeal.

It’s going to be interesting.

Stay Tuned!

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

And by the way, if a vaccine exemption writing doctor complies and turns over the contact information of every patient who has received an exemption, seems like a good bet that the board investigators will start calling the families of every medically vaccine exempted patient and seek their permission for their physician to release the medical records. I predict no parents will agree to do so (except perhaps post-divorce pro-vax, non-custodial parents). Absent parental consent, the medical records of these patients will be subpoenaed by the board. The doctor may resist, but ultimately the courts are likely to grant the board’s request to enforce the subpoena. After the records are reviewed by a conventional doctor, there will be a recorded interview with the physician with medical board personnel asking about the rationale for all these exemptions. A few months after the interview, a board complaint (called an Accusation in California) will be filed, charging the doctor with incompetence, gross negligence, and repeated acts of negligence in writing vaccine exemptions not in accordance with the standard of care, which means the contraindications listed on each vaccine’s label (which includes the package insert). That is essentially the opinion of the main pediatric and family medicine trade associations and the CDC. News flash: these groups basically don’t think there is any medical justification for writing a vaccine exemption for a healthy child. So a doctor facing one of these Investigative Interrogatory requests might be better off trying to stop this before it snowballs into a mega case involving dozens or hundreds of patients.

RAJ