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