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:

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.

34 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 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.

          1. Thank you for this. Have there been any court challenges yet on whether “continued enrollment” means you’re unable to switch schools?

  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 ❤️

  9. Hi Richard,

    I was wondering if a child who is currently enrolled in TK with a medical exemption will be able to stay in school (staying at the same school) until the grade 7 checkpoint or do they go through a check point again next year for Kindergarten? Thanks for clarifying!

  10. To Mr Jaffe and first post, Kris Dukes: we submitted the cover letter to go with our ME to our school, it is simply referencing HIPPA and FERPA privacy laws and Ca Health and Safety code section 120440 and stating that we are not consenting to any sharing of our ME to anybody. Our doc advised that both above mentioned laws are the most toothless laws which nobody can really enforce (true, in your experience, Mr Jaffe?)
    Our school could not tell us whether they will or will not share our records and even if there is an inquiry from the district or audit from the district they are not sure they will be able to tell us. Interestingly we are in a private school for 9 years and would expect different treatment correlating with exuberant moneys we paid in all the years but nonetheless its the case.
    Curiously what would be your thoughts Mr Jaffe on how eagerly private schools would be participating in a witch hunt: should problems arise we are in financial contract with the school and I am sure peculiar circumstances like these aren’t covered in our contract. Whats you take, should they be afraid to be loosing customers, monies and being sued?
    Many thanks for what you do!

    1. I’ve heard about that issue, like a school that has 30% unvaccinated. It’s going to cause some problems for these smaller schools which probably can’t survive with an immediate cut in enrollment, and refund requests. It’s going to be a mess.

  11. NVIC The Vaccine reaction sent an article about Ca on Friday which had this, quote:
    Newsom’s amendments will grandfather in all medical exemptions prior to January 1, 2020, when SB 276 goes in to effect. However, a student who previously received an exemption would need to obtain a new exemption before entering kindergarten or 7th grade, or when newly enrolling in a school district or school. End quote.
    I read carefully your opinion on the subject of changing schools within the same grade span Mr Jaffe, and I guess NVIC has a different take?
    We are up for rollercoaster for sure

    1. NVIC The Vaccine reaction sent an article about Ca on Friday which had this, quote:
      Newsom’s amendments will grandfather in all medical exemptions prior to January 1, 2020, when SB 276 goes in to effect.
      1. the new law which is SB 276 as substantially modified by SB 714 was signed into law on September 9, 2019. It is the law of the land in California right now. Meaning it is in effect right now. But there are parts of it, actually most of it is phased in over a period of time, the last time is July 1, 2021. But it is in effect right now.

      However, a student who previously received an exemption would need to obtain a new exemption before entering kindergarten or 7th grade, or when newly enrolling in a school district or school. End quote.
      I am not seeing the bold part in the text of the statute. I suppose they are reading that into it from the “continued enrollment” language, like “continued enrollment in the same school.” Enrollment just means registered in something. So I think a court would agree with me.
      But this opinion does reemphasize a point I keep making. There is what the law says and how a school might interpret it and whether it will follow it. Those are three separate things.
      If you start with the premise that most schools do not want unvaccinated kids to attend, then you can expect a school to do whatever it thinks it can get away with to protect its vaccinated students from the unvaccinated. So if you read this as a precaution and to think very carefully about switching schools in a grade span, I think that’s good advice. The bad of it is that now that this interpretation is out there by such a highly regarded vaccine concerned group, regrettably, it might make it more likely for schools to take this view, since even the VC read it the way the schools do or will.
      I also think the whole issue might be moot since as I’ve stated before, I fear that many schools will simply not honor exemptions, and force the parents to homeschool or fight it out in court.

      I read carefully your opinion on the subject of changing schools within the same grade span Mr Jaffe, and I guess NVIC has a different take?
      We are up for rollercoaster for sure

      1. But would a child who is currently enrolled in TK (with an ME dated after Jan 2019) and staying at the same school for kindergarten-6th be okay next year? I’m sorry, I just don’t see a clear answer on the way TK moving to Kindergarten works.

  12. Thank you for all your clarifications! I have another SB 276/714 question:

    Does a child entering high school (9th grade) in September 2020, whose permanent ME is not registered with CAIR, have anything to worry about?

    1. Lisa this is exactly our situation and I want to know too. My take: it will be up to particular school to admit a child with grand fathered ME or not. I am afraid public schools may not be willing to deal with families like ours, but how can they decline the application?
      I just saw pre 9/9 Leigh Dundas you tube with a lot if excellent info on privacy laws and among other things she posted the clip parents made where family of vaccine injured child with anaphylactic shock is moving to CA and trying to find a doctor to write ME so child can go to school (this is within CDC guidelines!!!) and doctor after doctor after doctor refuses. Did they call 800 doctors? They refused whats within the law and ultimately refuse medical care… witch hunt is going on a different level.. we hoping for high school but planning on home school.

      1. So even if your 1st grade child has a permanent ME and they have not switched schools just the next grade level from kindergarten to.1st grade so in the same grade spam. The schools can decide for themselves not to accept the ME? Even if your child is grandfathered in before Jan 2020? I would think the school has to follow the law and allow your child to.attend school if they
        are already grandfathered in with a ME. Is this not true? Thank you

        1. My question is specific to high school! Do high schools require vaccine records at all? Given it’s after all check points!? I realize schools can try to not accept you but can they legally? If a school is fine with the ME is there any cause for concern? Will high schools be scrutinized for vax rates given they are outside check point years? What if the high school is on the same campus as the lower school and the lower school has less than 95%? Are high school MEs subject to review in that situation?

  13. If my child is in preschool currently and going into Kinder Fall 2020 with an exemption written in 2019 will she be ok? Or do I need to move her to a TK class prior to Jan 2020 to have her avoid the checkpoint come Fall 2020? Im confused if TK is the same as Kinder? If I move her into TK now she will be entering Kinder Fall 2020. Basically need to know if its ok to leave her in preschool or move her into Pre K now so she’ll be ok for Kinder Fall 2020. Thank you so much! Your help is invaluable!

  14. My daughter has a permanent medical Exemption that she got in 2016. She started 7 th grade in August of 2020. The school has allowed her to start school. Now that they switched from distance learning to in person learning they are not allowing her to be at school. Is this something they can do? Should she be grandfathered in? I appreciate any information you can give me. Thank you so much.

    1. Yes I to would like to know the same. My grand children’s school hasn’t said anything yet but it’s in the back of our minds and very stressful. Of course we are not about to bring it up with the school. Now days it seems it’s just a matter of each school district getting to each child’s records and then they will most likely do away with all exemptions. That’s my guess so everyone should have a plan B when that time comes

  15. Hi. My daughter was born in January 2017 and was given a permanent ME. She started full time daycare in March 2018 and continued until Covid lockdown 2020 of March. It is now January 2021 and she has still not returned to school and does not participate in distance learning. Will she still be grandfathered in when she starts Pre-K or kinder? Confused on the grade spans. Thank you!

    1. ME’s are only good for children in a grade span when it was written. Since your child was not, you’d need a new ME under the 2021 law. Unforturantely, because of the new law, I am not aware of any physicians willing to write ME’s for reasons beyond those allowed under ACIP guidelines. ME’s are over in California for children entering a new grade span. Sorry, but that’s the way it is.

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