Some of you might be thinking that because Secction 120372 (c)(2)(B) has been struck through, that currently exemptees are grandfathered and continue to be valid or are unreviewable.

I do not think that is the case, I think there was either an error in drafting or another change small amendment is coming, but even if not, I think the department of health will take the position that it can revoke SB 277 exemptions.

First, here is what was struck through/deleted in this version:

“(B)If a local public health officer determines that a medical exemption granted prior to January 1, 2021, and submitted to the department pursuant to this paragraph is fraudulent or inconsistent with applicable federal Centers for Disease Control and Prevention (CDC), federal Advisory Committee on Immunization Practices (ACIP), or American Academy of Pediatrics (AAP) criteria for appropriate medical exemptions, the local health officer may provide the information to the State Public Health Officer. The State Public Health Officer may revoke the exemption upon the request of the local public health officer.”

But the new version achieves the same result indirectly, albeit arguably with some ambiguity

Focus on subsections (c) and (d) of 120372:

(c) (2) provides that an SB 277 exemption has to be submitted for inclusion in a “state database.” to continue to be valid.

(d) (8) provides that “a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

So we know that SB 277 exemptions can be reviewed to protect the public health. The best way to protect the public health (from their point of view) is to revoke an exemption which was improperly given because it didn’t meet the standard of care guidelines. And that is what I expect the department of health to do under its review power set out in subsection (d)(3).

It was pointed out to me that this subsection refers to medical exemption “forms” and the forms are SB 276 created, and SB 277 exemptions were more like letters.

here is the operative provision:

“(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.
(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.
(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may deny or revoke the medical exemption, as applicable. revoke the medical exemption”

I think the argument puts too heavy a burden on the word “forms”. Absent clear and explicit legislative clarification, I think you should all assume that SB 277 exemptions are subject to the same review AND REVOCATION PROCESS as SB 276 medical exemptions, and react accordingly.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com