On Friday August, 16, 2019, New York State Department of Health issued “emergency regulations” concerning the issuance of vaccine medical exemptions. The short of it is that NY has basically done what California SB 276 will do (and what the original version of SB 277 tried to do) via regulation, thereby circumventing the legislative process.
The regulation limits medical exemptions to ACIP other nationally recognized guidance documents establishing the standard of care.”
Here is the Health Department’s summary of the regulations:
Here is the part directly effecting the criteria for medical exemptions:
“A new subdivision (l) of section 66-1.1 defines “may be detrimental to the child’s health” to mean that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance. Amendments to subparagraph (ii) of paragraph (4) of subdivision (c) of section 66-1.2 require that the reason why an immunization is detrimental to a child’s health be documented in the New York State Immunization Information System. Additionally, amendments to subdivision (c) of section 66-1.3 require the use of medical exemption forms approved by the New York State Department of Health or New York City Department of Education; a written statement from a physician is no longer allowed.”
Clarifying the detrimental to “child’s health” the regulation states that:
“May be detrimental to the child’s health means that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care.”
Here is what the exemption has to contain:
“For individuals exempt from administration of vaccines, providers must submit patient information, including the reason [for the exemption] that such immunization may be detrimental to the child’s health, as defined in subdivision (l) of this section, to the statewide immunization information system within 14 days following the in-person clinical interaction that occurs at or after what would normally have been the due date for administration of an age-appropriate immnization to that child, according to current national immunization recommendations. Subdivision (c) of section 66-1.3 is hereby amended to read as follows: (c) A signed, completed [sample] medical exemption form [issued] approved by the NYSDOH or [NYCDOHMH or a signed statement] NYC Department of Education from a physician licensed to practice medicine in the New York State certifying that immunization may be detrimental to the child’s health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated. The medical exemption must be reissued annually. The principal or person in charge of the school may require additional information supporting the exemption.”
BTW: Medical exemption decisions are still technically being made by the child’s physician, not by the Health Department. But of course, physician discretion to write medical exemptions beyond national guidelines has been explicitly eliminated. So in reality, New York State is making vaccine medical exemption decisions. The doc is just filing out the paperwork.
Is that a legal exercise of regulatory power?
Good (and obvious) question. I have not looked hard at the issue, yet, but I am sure some of New York’s best and brightest will do so.
If it is legal, then Senator Pan and his allies have gone to a great deal of unnecessary trouble trying to pass legislation to achieve what a couple regulators in the NY State Department of Health achieved without any legislation, so you do have to wonder….
My case for Ken Stoller against the San Francisco City Attorney raises the issue of an alternative standard of care for vaccine medical exemptions. A successful result could have an impact on the New York situation, or maybe the New York Courts ought to be asked to do the same thing.
Teaser: expect a major announcement in the Stoller case soon, and it will be a double good!
Rick Jaffe, Esq.