The big one is that like others who have poured over the law, I didn’t see a CAIR medical vaccine exemption submission/reporting requirement in the final SB 714 amended bill for grandfathered pre-2020 exemptions. I do not assume that was intentional. For reasons I hope most will understand, that’s all I am going to say about this issue. My advice to you is follow the law as it is written in the final version.

Second, some people have read 120370 (a)(3) as meaning that all grandfathered exemptions expire after July 1, 2021. I do not think that is correct.

Here is the language:

“(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

This subpart (3) is part of subsection (a) of 120370. Subpart (2),(right above it in subsection (a)) establishes the grandfathering. So, the “Except as provided in this subsection language” creates an exception to the three subsequently listed alternative vaccine related requirements for school entry after July 1, 2021.

Here they are together (without the grade span definition in (2):

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
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(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

What about medical exemptions written after January 1, 2020 but before the full implementation of 120372 in 2021?

The good news is that those exemptions are via a physician’s letter, rather by the form, at least until the form and database is set up, (and the law just relates the January 1, 2021 deadline of setting up the form). The bad news is that they are not grandfathered, because the end of the grandfathering period is December 31, 2019, meaning that exemptions up until that date can be grandfathered, and are not after that date. Practically, that means that doctor letter exemptions written in calendar year 2020 could at best only be good until June 30, 2021, and I suspect they won’t be considered valid that long.

I think it would be foolish for a doctor to write a medical exemption that does not comply with strict CDC, AAP, ACIP guidelines in that transition year (and I don’t mean to imply that it wouldn’t be foolish to do so in the remaining part of the grandfathering period as well).

What about moving schools and private schools where contracts are renewed every year? Are the grandfathered exemptions still valid?

Caveat: All I can do is read a statute and tell you what I think the statute means. You can call it an interpretation. On some, but not all statutes, there might be ambiguity resulting in different reasonable interpretations. But that is different from reading something into a statute which is not in the language of the law. Even that is permissible, if, for example, it is obvious something is left-out or assumes some fact or event, or the statute on its face makes no sense. But that’s different from trying to inject something into the statutory language which is not in the statute to support some objective not implemented by the text.
And that is completely different from an implementer of a statute not following the statute, which is why there are court cases against governmental entities.

That all being said, here is the grandfathering subpart again with the relevant definition:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
For purposes of this subdivision, “grade span” means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

On its face, subpart (2) applies to private schools. “Grade span” is what is called a “defined term” meaning it has and only has the meaning it is given in the document.

There is nothing in this grandfathering subpart which limits the exemption to the original school in which is was filed, or excludes private schools.

Private schools are expressly incorporated into this grandfathering section. In my view, using the fact that private schools have annual contracts as a basis to reject a valid grandfathered exemption would be an obvious incorrect interpretation of the statute. The legislature could have, but did not impose any limitation or qualification to valid grandfathered exemptions for private schools. To read one into the statute would be an incorrect statutory analysis and even in the crazy politicized world of vaccines, I have to believe that the courts would reject it.

So, unless someone can point to some other section which modifies 120370(a)(2), I would say that changing schools does not change the status of the valid grandfathered exemption, and it applies to private schools under the statute, period. Whether a school official takes a position which not consistent with the statute on the hope and expectation that the parent will not do anything about it, is another question entirely. And I wouldn’t bet my last dollar that won’t happen, given that it is was illegally happening under SB 277.

More as needed.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com