Some Small Slivers of Good News in the New California Medical Vaccine Exemption Law

Some Small Slivers of Good News in the New California Medical Vaccine Exemption Law

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

19 thoughts on “Some Small Slivers of Good News in the New California Medical Vaccine Exemption Law

  1. Thank you, as always, for helping us to make sense of these complicated bills. Do you have any thoughts on what happens if a particular school is below the 95% vaccination rate? Can the state require that the ME’s be handed over or would the grandfathering clause protect the exemptions issued prior to 2020? Again, thank you for your thoughts.

    1. I think they are separate things. vaccine monitors look at exemptions at schools with below 95%. If some exemptions are grandfathered then presumably they’re only revoked if the doc is under probation, but I’m not seeing that grandfathered get some kind of pass of being looked at if there’s some other reason to look at them

  2. Hi Rick — Thank you for your excellent insight! What do you think about Section 120372(d)(5)? “The department shall notify the parent or guardian, issuing physician and surgeon, the school or institution, and the local public health officer with jurisdiction over the school or institution of a denial or revocation under this subdivision”. How are they going to do this without breaking privacy laws? If the Medical Board succeeds in getting a disciplinary action against a doctor, can the Medical Board then send unredacted medical records from that doctor to the department of health? And then is the department permitted to send those unredacted medical records to third parties such as the schools?

    1. the way the new law is with CAIR, privacy is waived between schools, health department and the board is the way I read it. The exemption has to be submitted to the database and whoever has access to it can see it.

  3. And still no mention of titers? My daughter doesn’t have a ME but she does have a physician’s note regarding the vaccinations she has had based on titers. Where do these kids stand? There should be no legal reason that titers don’t hold up. What I am not sure is how to schools report students who have proof of titers? Are they reported as vaccinated for the diseases mentioned in the physician’s letter? So in other words, my daughter is being filed as vaccinated? Its not an exemption, but it is a medical letter.

    1. I don’t see why titers matter anymore. A child is not going to have titers to all or most of the required vaccines, even the communicable disease ones, but certainly not to tetnus. I think the titers issue is irrelevant at least in the context of what permanent medical exemptions from all vaccines.

      1. That’s actually not true. The only reason boosters are given is because the first vaccine sometimes doesnt produce enough antibodies.

        Most states including MS, WV accept proof of titers. It’s common for adults to have titers accepted for work or school, in lieu of getting more vaccines. I demand them before I travel so I dont overvaccinate. Doctors will tell patients to just get vaccines because lab tests are expensive.

        Tetanus antibody titers stay for decades, so boosters often unnecessary.

        1. good luck convincing a California school to accept some lab report/piece of paper about titers for one or a few communicable diseases on the vaccine schedule in view of proof of compliance with the vaccine schedule.

          1. Exactly!! Numerous people whose kids had the diseases, like Chickenpox, or have laboratory proof of immunity spoke with the Legislature about codifying that titers are acceptable. Their pleas also fell on deaf ears. Sen Brian Jones called the CA leg: a “tyrannical government”.

            Supreme Court, in Jacobson v Mass, anticipated this type of tyranny occurring with vaccines. Have we reached this point of arbitrary and oppressive legislation?

            “Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe—perhaps to repeat a thought already sufficiently expressed, namely—that the police power of a state, whether exercised directly by the legislature, or by a local body acting under its authority, may be exerted in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. Extreme cases can be readily suggested. Ordinarily such cases are not safe guides in the administration of the law. It is easy, for instance, to suppose the case of an adult who is embraced by the mere words of the act, but yet to subject whom to vaccination in a particular condition of his health or body would be cruel and inhuman in the last degree. We are not to be understood as holding that the statute was intended to be applied to such a case, or, if it was so intended, that the judiciary would not be competent to interfere and protect the health and life of the individual concerned. ‘All laws,’ this court has said, ‘should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.'”

          2. A doctor’s verification currently is acceptable by the schools. Not a lab slip; a doctor has to verify the lab results right now. And mine was accepted by the school. But it’s NOT an exemption but proof of immunity. And this is legal now according to the CDPH and the CDC. I have it in writing from the CDPH. My daughter doesn’t have the total required doses to two disease, polio and chickenpox, but her labs say she is immune. And a doctor has verified the lab results and I have submitted his letter. But it’s not a ME. I have no desire to give her doses just for the heck of it….

  4. “The 2011 ACIP General Recommendations on Immunization included the option to perform serologic testing for neutralizing antibodies to poliovirus types 1, 2, and 3 to assess immunity in children without adequate documentation of vaccination against polio. Persons with protective titers against all three poliovirus types did not need to receive repeat doses,”

    https://www.cdc.gov/mmwr/volumes/66/wr/mm6601a6.htmus types did not need to receive repeat doses, “

  5. Thanks so much for your work on this. I am wondering how this will play out for the kids who have a ME written prior to 2019, but don’t start school (kinder) until August 2020. It sounds like their accepted into school on a grandfathered ME as long as they start prior to the law going into effect on 1.1.2021… or am i reading something incorrectly? Thanks in advance!

    1. wrong. If a child is not enrolled in school in the 2019-2020 school year, the regardless of having a medical exemption written in 2019 or before, that child will need a new medical exemption. “Continued enrollment” implies that the child is already enrolled in school. It’s right there in the statute.

  6. Hi Richard. Thank you so much for taking time to write these helpful information. I have a question. I have a daughter who will enter 7th grade next year. I have a medical exemption for her which is dated on the 2016. Does it matter if i submit it to her school now or wait and submit it next year when she enters 7th grade?
    Thank you.

  7. Hi there. Based on your interpretation, if my current 6th grader is able to get a new 2020ME, even if temporary just to enter 7th grade, would he be safe through 12th or would it expire and he gets kicked out at 8th grade?

    Thanks for all your help!

  8. theoretically a 2020 ME could be good through the entire grade span, but there is no medical condition or history which would justify a child for getting an exemption from all vaccines over that period of time, under the guidelines accepted by the organizations who make those decisions/recommendations, so practically speaking even if you had one, it would be revoked. There are not going to be any accepted non revoked exemptions after 1/1/21 and probably even after 1/20/20. Those days are over. You’ll need another solution

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