Under Revised SB 276, public health staff still make the final medical vaccine exemption decisions, and they still will reject all broader than CDC guideline-based exemptions

Under Revised SB 276, public health staff still make the final medical vaccine exemption decisions, and they still will reject all broader than CDC guideline-based exemptions

Until the June 17th Amendment, the biggest knock against SB 276 was that it put medical vaccine exemptions decisions in the hands of state public health officials. That even bothered the Governor (for one day anyway), and it seems to be concerning to the members of the Medical Board.

The revised bill creates the illusion of fixing that problem, by allowing physicians to submit what is called a “vaccine exemption certification” which on its face purports to be an operational exemption from vaccines. But it really isn’t. None of the exemptions written beyond CDC guidelines will go into effect, because the revised bill allows low level public health staff to review any medical exemption and rescind it if doesn’t comport with CDC guidelines.

Here is how it works under the proposed bill and why none of the medical exemption certifications based on broader than CDC contraindications will survive (and neither will the physicians who are brave enough to write them).

After an exemption certification is filed (under penalties of perjury), it can be reviewed at any time by a health official per:

“(8) Notwithstanding any other provision of this subdivision, a clinically trained immunization program staff member may review any exemption in the CAIR as necessary to protect public health.”

Assuming there are any physicians still writing exemptions when the bill’s proposed mechanism comes into effect on January 1, 2021 (and I don’t think there will be, because the elimination of these physicians is the real purpose of the amended bill), these exemption writing physicians are known and will be red flagged by the “clinically trained immunization program staff member” (notice it doesn’t say a licensed medical doctor).

What are these clinically trained folks looking for? The bill spells it out:

“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.”

How will the public health department evaluate the additional information concerning non-compliant CDC et al based exemptions?

“B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.”

I do not think these clinically trained staff will conclude that there is sufficient “written documentation” to support these broader than CDC exemptions under the conventional standard of care employed by most physicians, and hence, all these exemptions will be denied.

The good news (tacticly) is that this subsection makes it clear that the ultimately authority on medical exemptions is the public health department, based on the “medical discretion” of these low level staffers.

THAT DOES NOT SOLVE THE PROBLEM WHICH PRECIPITATED THE AMENDMENT, NAMELY THAT STATE EMPLOYEES ARE MAKING THESE DISCRETIONARY VACCINE EXEMPTION DECISIONS, NOT THE PHYSICIAN WHO HAS A DOCTOR/PATIENT RELATIONSHIP.

AND THAT IS WHY THE BILL IS STILL FATALLY FLAWED AND SHOULD BE REJECTED BY THE ASSEMBLY.

And by the way, there are really two standards of care for vaccine medical exemptions

My view is that there are two standards of care for medical vaccine exemption, the conventional one, which I understand this subsection is referring to, and an alternative standard of care, which is used by the exemption writing physicians under attack. This alternative standard of care was endorsed by Senator Pan in his push to pass SB 277 (See my prior post discussing what he said: http://rickjaffeesq.com/2019/05/11/remembering-what-the-politicians-said-about-the-scope-of-medical-exemptions-under-sb-277/.

Moreover (and as discussed in a bit), an alternative standard of care is recognized by California physician regulation law.

In my case against the San Francisco City Attorney, I am asking the court to recognize the right of people like you to receive a vaccine medical exemption based on this alternative standard of care, but it might be a good thing to bring up at the hearing tomorrow.

To avoid you having to wade through my 30-page complaint, here’s what I said:

“FIFTH CAUSE OF ACTION
DECLARATORY JUDGEMENT THAT PATIENTS HAVE A STATE STATUTORY AND CONSTITUTIONAL RIGHT TO OBTAIN A MEDICAL EXEMPTION BASED ON AN ALTERNATIVE STANDARD OF CARE

1. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 – 73 above.
2. California citizens have a right to receive unconventional medical care and advice from California licensed physicians Bus. & Prof. Code section 2234.1, and that includes medical advice and services concerning childhood vaccines. The rationale being, per Section 2234.1(c), ”Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.”
3. Therefore, there are certainly no shortage of physicians critical of using family history and genetic associations to grant medical exemptions because using information beyond CDC guidelines has not gained consensus status, and the science is not settled on identifying children vulnerable to adverse events.
4. Plaintiff seeks a declaratory judgment that the patients of Dr. Stoller, and the patients of other like-minded physicians, have a right to receive a vaccine medical exemption based on an alternative standard of medical exemptions beyond CDC guidelines, under Bus. & Prof. Code 2234.1 and a state constitution right. cf Schloendorff v. NY Hospital, 211 NY 125, 105 NE.102 1914 (J. Cardoza) (overruled on other grounds Bing. V. Thunig 2 NYS 656, 143 NE2d 3, (1957) (New York citizens have a privacy right to control their own bodies); Schneider v Revici 817 F.2d 987 (2nd Cir. 1987). (Acknowledging a patient’s right to receive unconventional medical treatment).
5. Dr. Stoller will demonstrate that the alternative vaccine standard of care which he uses (and again which had been endorsed by Senator Pan in SB 277) is safer and creates less of a risk of serious harm and permanent injury for children than the CDC guideline based standard of care, which further justifies the Court recognizing the patients’ right to obtain medical exemptions under this alternative standard of care, notwithstanding any current or future law to the contrary.
6. Plaintiff also seeks a declaratory judgment that based on the existing scientific research, and evidence of wrongdoing, including the suppression of vaccine injury findings, and the intimidation of physicians and researchers, the alternative standard of care for vaccine exemption is safer for children than the CDC guidelines.”

Maybe some of you should make this point at the hearing tomorrow, and in your communications to the Assembly

IN SHORT

When you look at it closely, the revised bill just doesn’t solve the fundamental problem, which even the Governor and Medical Board recognize, namely that vaccine medical exemptions are ultimately made by state public health officials exercising their medical discretion, and that should not happen. It must be the physician who has a doctor/patient relationship who has the final say. END OF STORY.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

3 thoughts on “Under Revised SB 276, public health staff still make the final medical vaccine exemption decisions, and they still will reject all broader than CDC guideline-based exemptions

  1. In general discussions about “what is the definition of medical practice??”, so much emphasis is placed on a PHYSICIAN’S legal right (and the right of NO OTHER) to render a diagnosis.

    Why does it matter? … A proper diagnosis is critical because it allows the physician to make rational decisions with regard to the patient’s medical care moving forward. All medical care given to the patient finds its rationale in the diagnosis. In this way a diagnosis serves as a professional OPINION.

    For medical exemptions, a Medical Doctor makes a DECLARATION that patient X is a poor candidate for one or several vaccines. Like a diagnosis, this declaration informs all future medical care for the patient…. such declaration behaves EXACTLY LIKE a diagnosis in that it informs all medical care moving forward (I repeat for emphasis). It is a professional OPINION given by the physician based on meeting with the patient, taking a patient and family history, performing physical and laboratory, imaging, etc etc examinations, and rendering an opinion.

    Based on the above, my reaction to the amended bill is: how on earth can a low-level government technician, “a clinically trained immunization program staff member” be allowed to perform duties that ARE SEEMINGLY THE SAME as a physician’s??… ie, the legal practice of medicine and the rendering of a medical opinion?

    Help me understand…

  2. Wondering if conflict of interest issues are pertinent to the court since the CDC is an organization dedicated to achieving high vaccination rates which would make them reluctant to create a standard of care undermining their goals

    1. Can you clarify what this means for us that have medical exemptions already from a doctor that had given out more than 5 in a year? Also does this affect kids that are not at an entry grade level? Will they force all kids to catch up on thier vaccines even in 2nd or 3rd grade?

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