Because of the rush job to comply with the Governor’s late demands to Change SB 276, the law which is in effect, which is basically SB 714, has generated more confusion, but it has also created a small amount of hope than would have been the case under SB 276.

The two biggest examples of this is that under SB 276, all vaccine medical exemptions had to be entered into CAIR to have continued validity. Either by design or mistake, SB 714 eliminated or did not carry over that requirement.

The other big thing where I think the Governor intended to help the vaccine concerned is the provision that a grandfathered medical exemption would remain in effect through an entire “grade span” and could only be revoked if the physician writing it has been sanctioned by the board. I think a revocation of a grandfathered non-CAIR filed exemption should follow the process set up in Section 120372. However, I suppose it is possible to take the other position, namely that the department of health will automatically revoke all exemptions written by a disciplined physician. So far, this only concerns one physician (that I know of, but I hear there is at least one more), but for sure there will other physicians who may be sanctioned in the next year or two. How many, remains to be seen.

Another issue which has caused some uncertainty is whether changing schools in the middle of a grade span requires obtaining a new medical exemption (“ME”). I do not see anything in the statute about “check points”, so anyone saying that an ME is required in changing school because a new school is a “check point” is not using the correct statutory language under SB 714. I think this position is based on the notion that “continued enrollment” means enrollment in a particular school, such that if you change schools, even in the middle of a grade span, you are not in “continued enrollment.” I understand the point, but, as a matter of statutory interpretation, if the legislature wanted to require a new ME when changing school, it would have or should have just said so explicitly. Of course, maybe it was just bad draftsmanship.

However, the fact that there is a different interpretation out there from a highly regarded vaccine concerned group highlights a bigger problem. Even if I am right on a technical legal/statutory interpretation question and would be proven right by the courts, the fact that there is another possible interpretation might lead a few, some, or many schools to disallow ME’s for transfer students within a grade span. So, I think it is possible and even likely that some families will find that their child’s ME will not be accepted by a new school, based on this other interpretation. Ultimately, I still think that the courts will not accept this alternative interpretation, but that will take time and money to find out.

The other major area of confusion relates to when the new law takes effect. I think the law is already in effect (or at least has an important practical effect on physicians comtemplating writing medical exemptions post passage of SB 276/714. However, the operative provisions for families phase-in over time.

I think the effect of the law right now, regardless of whether or not it is technically in effect, is that whatever argument there was or might have been that SB 277 allowed broader than FDA contraindication, is now over. Physicians who want to stay out of trouble should use the standard of care manifest in the new law because the new law clarified what the authors said was in the old law. Let me put it another way. Pan and almost all pediatric experts didn’t think SB 277 changed the standard of care for writing medical exemptions. A small group of vaccine concerned doctors said it did and used the language and the statements of the authors to support that broader view. SB 276/714 make clear that the standard of care is the standard of care and closed the loop claimed by the vaccine concerned physicians and the VC community in general. Using that loop hole might possibly keep a doctor out of trouble for exemptions written before the passage date of SB 276/714 but it won’t for ME’s written after passage, because physicians are now on notice about what is required of them, regardless of the technical effective date of the new law. Therefore, I think that doctors should follow the standards set forth in SB 714 in considering a medical exemption.

But the absolute biggest unresolved question I have is whether any of the exact language in the bill will matter to schools. My fear is that some schools will use the notion of revocation and not accepting ME’s (which the department of public health can do for physicians in trouble with the medical board) to simply refuse to accept ME’s which are valid under the current law, until they have been subjected to the review and revocation process including the appeal.

That is what I think could be the next big thing/the other shoe to drop. That would make all the legal analysis moot until the action is challenged in court. And that is one reason I am unwilling to engage in private consultations with families about their particular situation. I am just not sure that a legal analysis of the statute is meaningful at this point.

The other issue is the whole San Diego subpoena of ME’s from schools and the letter the school district wrote to parents of the medically vaccine exempt. I hear from a few sources that there is about to be a legal action filed. More about that situation another time. (Now I hear there will be a hearing on Monday, September 23, 2019. Details to follow when available.

Rick Jaffe, Esq.