10 days into California SB 276/714: Where are We? (updated September 28/2019 on the effective date of the new law)

10 days into California SB 276/714: Where are We? (updated September 28/2019 on the effective date of the new law)

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.

12 thoughts on “10 days into California SB 276/714: Where are We? (updated September 28/2019 on the effective date of the new law)

  1. From all the school changes over the years, all the records would transfer except my daughter’s Personal (in younger grades) /Medical exemption. I would ask why and the office lady was always rude to me and said this is a different school. I even was given much grief going from elementary (5th) to middle school (6th) and had to give them a copy even though it was the same school district. When I moved from north cal to south cal after 7th grade, the south cal junior high school forced me to submit the ME again even though I transferred all her school records. So I go to register her in 9th grade and they tell me yet again that since the high school is a different district (I had not moved either!) I must submit yet again!

    I have 2 fears. 1) that I will get an uninformed letter from the school during the summer so I won’t have proper time to deal with it where they say I must go through the new ME system. I do not put it past them to not read the law correctly And 2) my daughter won’t be able to go to college here in California due to their demands on vaccines and now obtaining an ME (since they are considered temporary) will be next to impossible.

    Btw my daughter had a seizure after her 2 month shots but kaiser dr refused to admit it and said it was impossible even though the packet inserts say it is a side effect. Not all of us can afford a private college. Just unreal. I would feel better about number 1 if I knew an attorney that would write a letter to the school correcting them if the school pulls what I think they will pull. As for number 2, I have resigned myself that I just may have to send her out of state for college. I am already barely making enough money to live on being a stay at home mom. Thanks gavin newsom for hurting the little guy.

  2. Thank you for your updates. However you state that only one doctor is subject to exemption revocation at this time (Dr. Sears), but if it means exemptions are revoked for ANY disciplinary action, I know of at least one other physician in California.

  3. Thank you for all of the great info. I am confused on this point: what happens for students with an ME (written before 2020) who start kindergarten in the fall, September of 2020? Will the ME, written for reasons outside the “standard of care” CDC contraindications/precautions, be acceptable until the next checkpoint? Or a new ME written after January 2020 is required, but still can be based on pre-SB 276 criteria? I’m confused on the two dates: January 2020 and July 1, 2021. Thank you!

    1. Yes! I have the same question. My daughter has a medical exemption that was written in 2017. She is due to start kinder in the Fall of 2020. What would her situation be? Will she have to leave school on December 31st, 2021? Will her name show up in the registry? Will her school have to report my daughter’s name and information to the registry? I am leaning toward moving or homeschooling do not want her name on any government list.

        1. sorry to have to tell you this, but you will need a new vaccine exemption when she starts kindergarten in the fall of 2020. He current vaccine exemption will not be accepted under the new law, because an exemption is only good for a grade span in which the child is currently enrolled in. If you do manage to get a new exemption, and I think that will be hard since it would have to comply with the standard of care, and being medically fragile does not merit an exemption. So people in your situation under the law have three choices, home school, leave the state or get your child vaccinated. Again, sorry but that’s the way it is, and what I’ve said in most of the last few posts.

          1. Thanks Mr Jaffe. That answered part of my question. What if a child with a current medical exemption is in TK now going into Kinder fall 2020?

  4. TKindergarten is included in the kindergarten grade span, so your child will not need a new ME in the fall of 2020 if she current has one in T K. at least not under the terms of the statute, meaning it would not be legal for a K school require a new ME

  5. I understand that it is in the best interest of doctors’ career to follow SB-714 standards for writing ME’s, even in 2019 & 2020. Why, though, do you interpret the law as PROHIBITING them from being a bit broader in their parameters for issuing ME’s before 2021? In my layperson interpretation, the review process by public health to see if ME’s meet CDC, et al, guidelines will be for those in CAIR beginning 2021.

  6. Schools have been sending ME for “medically fragile” but otherwise healthy children to the CDPH and have been reporting the docs to the medical board, under SB 277. That will dramatically increase now that SB 714 is in effect. Actually as of September 9, 2019, SB 276/714 became effective. Some of the provisions are phased in. I think the CDPH can and will start reviewing exemptions written in 2020, since they are not grandfathered in. Per above, ME for healthy looking children will be reported by most public schools I am predicting, and they will be rescinded, at least the 2020 written exemptions. It’s just that because CAIR reporting of the ME was removed, doesn’t mean they can’t review them.

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