A few days ago, the LA Times published an articled titled, “New California school vaccine rules have left nurses, doctors and parents confused”
Here it is:
It is a good and very informative piece, as they all are when they are written by this journalist.
It’s been suggested that I comment about it, and, because of the basic point, I am getting many requests from parents and some physicians to explain the law, since the only thing everyone seems to agree with is that the new law is confusing. (Actually Senator Pan doesn’t seem to think it is confusing, but…..).
I confess that I also do not completely understand the new law, but before I tell you what I do not know/understand about the law, let me tell you what I do know and am confident about, and I am telling you this because misinformation is being provided which needs to be corrected.
Here is what I know about the law:
If your child is enrolling in a new grade span in the fall 2020, your child needs a 2020 dated ME. A pre-2020 grandfathered ME will not allow your child to be enrolled in a new grade span in the fall of 2020.
I am 100% certain that this is the CDPH’s position, because it has said so.
Here is the language from its FAQ’s
“My child has an existing medical exemption. Do they get to keep it?
Yes, all existing medical exemptions continue to be valid except as explained below.
• Parents of students with existing medical exemptions will need to submit a new exemption when the student begins a new ”grade span.” Grade spans are: birth to preschool, kindergarten (including transitional kindergarten) and grades 1-6, and grades 7-12.”
here is my prior post which discusses this issue. It has the pdf of the whole CDPH explanation.
Continuing with what I do know: The new law does provide that physicians who have been subject to the most common forms of medical discipline can/will have their ME’s revoked. I know this because that’s what the law says. Here it is, specifically 120372 (d)(4) provides:
“(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.”
So that is what I do know.
Here is what I don’t know or can’t say for sure under the new law:
1. Are these revocations automatic or does the process of revocations for 2021 (and later) ME forms apply?
Here are some of 120372 (d)(4) immediately preceding and subsequent provisions. You tell me whether families who have grandfathered ME’s from disciplined doctors can avail themselves of the revocation process set forth in the statute.
“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.
(B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.
(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.
(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.
(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.
(6) If a medical exemption is revoked pursuant to this subdivision, the child shall continue in attendance. However, within 30 calendar days of the revocation, the child shall commence the immunization schedule required for conditional admittance under Chapter 4 (commencing with Section 6000) of Division 1 of Title 17 of the California Code of Regulations in order to remain in attendance, unless an appeal is filed pursuant to Section 120372.05 within that 30-day time period, in which case the child shall continue in attendance and shall not be required to otherwise comply with immunization requirements unless and until the revocation is upheld on appeal.”
This last highlighted provision strongly suggests to me that the families with Bob Sears’ ME’s should be able to avail themselves of the full process.
To the extent that the current law remains in effect in 2021 (and as I’ll discuss, I have my doubts about this), this should be a major battle ground.
Every single Bob Sears exemption (and the exemptions of any other physician sanctioned in 2020) should be contested. That will probably require some concerted action, perhaps through the entry of a new national player with more resources than the current vaccine concerned groups. More about this another time.
But again, every single grandfathered exemption which the CDPH attempts to revoke under 120372 (d)(4), should be vigorously contested.
Here is something else I do not know:
Under SB 276, so called grandfathered exemptions would only be valid if they were filed with the CDPH. The filing requirement was removed in SB 714. That creates an administrative hole in the law because while grandfathered ME’s from disciplined physicians are revoked or revocable, under the current law, there is no formal mechanism by which grandfathered ME’s are forwarded to the CDPH. So how does that agency find out about those ME’s? Practically speaking, I suppose the schools on an ad hoc basis forward them, but, as indicated in the comments in the LA Times article, schools like systems, process and guidelines, and there are none now.
My guess (or maybe my hope) is practically speaking, most grandfathered exemptions even most written by Bob Sears are safe for this and at least the first part of the next school year. But come the beginning of 2021, all bets are off.
update: comment that parent on Facebook was told their Sears exemption was no longer valid: That may well increases as a result of the LA Times article, but it’s not clear that is legal.
Based on the LA Times article, we know that Senator Pan thinks and wants all of Bob Sears’ ME’s to be revoked now.
There is zero chance he is going to sit out this legislative session. So expect a new bill from him next month. I have no special access or secret knowledge, but I do not how to read the tea leaves and learn from the past, like the creation of the false PR narrative of fraudulent ME’s and how he exploited the Disneyland measles thing.
Coronovires is the perfect panic for him to exploit. So expect his new bill to, in all but in name rescind the SB 714 protections, require all grandfathered ME’s to be filed with the CDPH, and to clean-up/clarify the revocation provision for grandfathered ME’s from disciplined doctors. You also should start preparing for this next round.
Rick Jaffe, Esq.