Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

The new California vaccine exemption law is vague, badly written and not well thought-out.

First, let’s get on the same page. Look at SB 714, because that is really the operative law in that it changed SB 276 even though both because law the same day. Here it is:
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB714

What is a grandfathered medical exemption?

What is commonly referred to as grandfathered vaccine medical exemptions are exemptions written by a California licensed physician on or before December 31, 2019.

What school years does a current or grandfathered medical exemption apply to?

Subject to what comes later in this post, if you child currently has a permanent medical exemption, it should be effective for the current school year (2019-2020).

If your child will not be starting a new “grade span” next school year, then under the terms of the grandfathering provisions, your child’s exemption should be good for next year also (2020-2021), and should remain valid until your child enters the next grade span.

There are exactly three “grade spans”

“(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

This much of the law of grandfathered exemptions is clear.

It is also clear that there is no longer any such thing as a permanent medical exemption. Exemptions are at most good for one grade span.

Can a grandfathered exemption be revoked?

Yes, under the following provision in 120372:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.”

Is the revocation automatic?

My current thinking is that these exemptions should not be automatically revocable or revoked, but I am not sure. What I can relate to you is that the subpart immediately preceding (4) dealing with grandfathered exemptions has the following language:
“(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 revoke the medical exemption.”

If this subpart (3)(C) applies to grandfathered exemptions, then grandfathered exemptions would have to go through this revocation process and presumably the appeal process as well. I think there is every reason to believe and hope that the authorities will use the revocation process in (C) for exemptions written by physicians under a board order. (As of today, I only know of one such physician, Bob Sears, but there surely will be more in the future).

But as a lawyer who is attuned to jurisprudence and how the law should be, I do have a small, nagging concern on the application of this subpart (C) department of health revocation process and whether it applies to grandfathered exemptions. Also, fyi, I am a hope-for-the-best, but expect-the-worst-kind of a guy. Caution: My concern is in the weeds.

The revocation process is triggered by a review of medical exemption submitted to CAIR. Under 276, grandfathered medical exemption letters had to be submitted to CAIR, but not so under the final version of the law, i.e., with SB 714’s changes.

So, how can there be a revocation process for exemptions which are not in the department of health’s reviewable CAIR database? What is the statutory mechanism by which the department of health obtains and then reviews grandfathered exemptions?

Of course, on an ad hoc basis, schools will probably submit questionable exemptions to the department of health. However, that really does not solve the problem that there is a gap or hole in the statutory scheme. There is a revocation process for exemption forms all of which are centrally filed. But grandfathered exemptions (and 2020 transitions exemptions) are not in the database and hence not directly accessable by the department of health, which is supposed to handle the exemption revocation process. And to me that’s a head scratcher.

That gap might cause an interpretation that grandfathered exemptions are not subject to the revocation process by the department of health, which could lead to an interpretation that exemptions written by physicians under probation are automatically revoked/revocable.

Beyond this technical issue, we are dealing with vaccination. The state authorities and schools believe the fake exemption narrative, and they sure don’t like Bob Sears. So, I have to at least wonder whether some schools, perhaps with quiet consultations with the public health department, might decide that his exemptions are automatically revoked, (because he is currently under probation with the Medical Board).

I don’t think a court would necessarily see it that way, meaning upholding an automatic revocation interpretation. However, it is possible that based on the government narrative promoted by the media (i.e., renegade, unethical physicians writing fake medical exemptions for thousands of healthy kids, which endanger zillions of people), some schools might simply not accept medical exemptions written by a physician on probation, even before the full implementation of the new law.

One of the reasons I think that might be a possibility is because prior to the new law taking effect on September 9, 2019, schools were not honoring exemptions written by physicians who were under board investigation, and there was absolutely no legal authority for schools to do that.

Now, there is a statute which states that an exemption written by physician under probation can be revoked, AND, the provision does not expressly state that the rule for revocation of medical exemption forms applies to these grandfathered exemptions.

So, my conclusion is that while I think the revocation process should apply to grandfathered exemptions and that medical exemptions written by physicians on probation should not be automatically revoked/revocable by the health department, I cannot say for certain, and I surely wouldn’t predict that is the way the statute will be interpreted by the department of health, or implemented by the schools. Given the times and climate, it would not shock me if sooner or later, some schools will simply refuse to accept a grandfathered exemption written by a physician under Board probation, which would force a family to home school or take legal action.

I hope to be proven wrong. For now, watch, wait and let’s see how this shakes out. I would note that every day, something new seems to be happening with the Medical Board and schools. I can almost hear the conversations over the phone lines and see the email exchanges between all these government, legislative and school officials plotting and planning, and what I am sensing is there is more to come.

Rick Jaffe, Esq.

18 thoughts on “Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

  1. I agree, the whole law is “clear as mud”. The republicans asked only for a couple of days to review the law in committee, and were denied. This law was not properly reviewed.

    Mr. Jaffe, can you state with some certainty that the exemptions prior to the implementation of this law will “likely” be revoked on January 1, 2021? July 1, 2021 OR immediately?

    1. I can do no such thing.
      The statute says grandfathered exemptions will not be revoked unless the the writing physician is under a board order.
      Right now there is only one such physician, but I think there will be others added to the list in the next year or two.

      BEYOND THAT: AND BEYOND EXEMPTION REVOCATION, there is the issue of whether schools will legally or illegally refuse to accept or honor exemptions written by physicians who write these exemptions.
      I think that is the bigger unknown, and that is what I think is burning up the phone and email lines right now.

    1. Not under the grandfathering revocation provision discussed in the post unless or until a probation order is entered against him. Whether schools continue to accept his or any exemption written by the handful of docs who wrote them is something we will just have to wait to see

  2. Can you issue a letter to all school districts prohibit disclosure of medical exemption records as violated FERPA to protect grandfathered exemptions..as we see medical board has already subpoenaed 300 records in San Diego school district. How do we protect the doctors from being hunted? Non disclosure form to submit to our child school records? Warning to all districts of what they legally should do to protect all school records?

  3. I have been wondering about this myself. Is this just a doctor that is currently under probation or does this also apply to any doctor that has had any disciplinary action in the past for any reason?

    1. it’s discipline by the medical board which triggers or could trigger revocation of an exemption, not criminal probation, though usually probation or more usually license suspension or license revocation follows from any felony conviction.

  4. Richard Jaffe, thank you for all that you do! My question is:

    If a child has a permanent ME written in 2018, but is currently not enrolled in any school as they were born in February 2018 (currently 19 months), when would they need to be enrolled (prior to January 2020 or July 2021) in a daycare/preschool program to keep their ME for that grade span (until K)? The issue is that as of January 2020, the child will be one month shy of two years old, the cut off for most preschool programs. Also, does “enrolled” mean currently attending, or can a child be “enrolled” before the relevant statutory date, and begin attendance after that date? Thanks, Richard Jaffe, for any guidance that you can provide.

    1. My view is that a child has to be in actual attendance in a school or program on or before December 31, 2019 to be eligible have a ME be grandfathered for the remaining grade span to be covered in to meet the “continued enrollment” after on or after 2020 for grandfathering of the ME. Meaning I think the continued enrollment means that the child has to be in school in the 2019 school session. Otherwise, the exemption whenever issued is not grandfathered, meaning it does not have to be accepted. I don’t think you should hang your hat on a separation of enrollment and physical attendance across school terms.

      1. Thank you, Richard! That was my interpretation, as well, unfortunately. I will need to get him into a daycare program that also has a preschool through pre-K prior to 12/31/19 to continue through the grade span as it appears that if you change schools, you will lose your grandfathered ME.

        1. “as it appears that if you change schools, you will lose your grandfathered ME.”

          I keep hearing that, but I’m not so sure. I don’t see why changing schools in a grade span would affect the status of the grandfathered ME. Based on the plain words of the statute the ME is good for the entire grade span. I think reading no school switching into “continued enrollment” is reading too much into it. Logically and on policy, it shouldn’t matter which school the student is in or changes to.
          That being said, I could certainly see that public schools which want their students vaccinated might take that position for unvaccinated incomming students even in the same grade span. Meaning, even if I’m right, no guaranty the incoming school will follow the most logical reading of the statute.

  5. I think people should be calling and e-mailing their legislators who voted for this bill, Newsom’s office, the Medical Board, and the Public Health Department and asking all of the questions about how this will be implemented. The bills are so poorly written, I doubt any of them know the answers. It would be good to document that everyone who supported it has no clue what will happen now.

  6. Sec 120370 clearly says “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”. The one which says ME can be revoked if issued by a Doctor disciplined by Board is in a different Section which is 120372. If they wanted that particular condition to apply for Sec 120370 they would have specifically said in Sec 120370 that continued enrollment is allowed subject to the provision in Sec 120372 which talks about ME that can be revoked if disciplinary action is taken by Board. My 2 cents on this.

  7. Actually, been reading everything I can get my hand on and the newspapers have “specifically” reported that exemptions are revoked for ANY disciplinary actions. It was reported that Dr. Sears is the only one under probation for vaccine related actions, but there are other doctors (including our own) who are under probation for non vaccine related activities! This section seems “chalengeable” since a doctor who is perfectly qualified to give an exemption for vaccines can have a child’s exemption revoked for any probation.

  8. Thank you very much for all your help Richard Jaffe. You have certainly helped us remain at a much better understanding of what’s going on with all these vaccine laws. This has been so stressful and keeping up with your reports has brought much more peace then if we didn’t have them. So my understanding is that Dr Stoller’s medical exemptions that were written before 2020 are no longer being questioned or under investigation as of now and are grandfathered in until the next grade span? If so then if a child’s school says that their ME is expired when it was a permanent ME and your child is still in the same school just went from kindergarten to 1st grade this year and already had the ME when starting Kindergarten then the exemption should still be good through the 6th grade? Thank you again I know we are all probably driving you crazy with our continued questions. I just hope you know how much you’ve been greatly appreciated ❤️

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