What Could Be Next in the California Legislative Vaccine Front

What Could Be Next in the California Legislative Vaccine Front

Supposedly, the legislative session is going to restart on May 4th. But whenever it continues, I would expect Senator Pan and his allies to clean-up and fix the slippage which resulted from SB 714’s amendment of SB 276, and to take advantage of the COVID-19 pandemic.

Although there is not a vaccine for the disease right now, there surely will be, in a year to eighteen months as is the general (possibly) optimistic estimate, or maybe even sooner. Because it might be sooner than a year and because public policy and the law takes time to plan and implement, I expect a 2020 bill to address the new vaccine, if not explicitly, then implicitly to facilitate the quick implementation of the new vaccine’s mandate. (New York has already initiated some steps along the same lines.) I have no special access, but here is my guess as to what the first cut of the new bill will look like:

1. Mandatory reporting of grandfathered exemptions. In SB 276, there was a mandatory reporting/filing requirement for all medical exemptions as a prerequisite of their continued validity. That requirement was eliminated in SB 714 because of the Governor’s push back against SB 276. Seems easy to predict that a new bill will reinstate the mandatory reporting/filing requirement of all ME’s with the public health department.

2. But the filing of medical exemptions is meaningless unless there is some mechanism by which these broad ME’s can be revoked. So, look to the new bill to include the grandfathered ME’s in the review and revocation process which now exists for ME’s written after December 31, 2019. In short, grandfathered exemptions will no longer be immune from review and revocation.

3. Removal of the requirement limiting the addition of vaccines to the schedule. Right now, technically at least, the law appears to prevent the addition of vaccines to the California mandatory vaccine schedule set out in Health and Safety Code Section 120325 (b) unless there is both a medical exemption and a personal belief exemption. (Health and Safety Code Section 120338 provides “Notwithstanding Sections 120325 and 120335, any immunizations deemed appropriate by the department pursuant to paragraph (11) of subdivision (a) of Section 120325 or paragraph (11) of subdivision (b) of Section 120335, may be mandated before a pupil’s first admission to any private or public elementary or secondary school, child care center, day nursery, nursery school, family day care home, or development center, only if exemptions are allowed for both medical reasons and personal beliefs.” (emphasis added).

Since there is no longer a PBE, look to the new bill to rescind or modify Section 120338. This provision seems to have been part of the give to the vaccine concerned in SB 277, along with the “robust” medical exemption. SB 276/714 put the kybosh on the robust part of the ME, so look to the new bill to finish the SB 277 take back, due to the pandemic.

That would be the minimum of what I would expect the new bill to address, but I think the pandemic presents too big of an opportunity for Senator Pan and his allies to go big and get what they really want. And what they really want is the revocation of all these medical exemptions; by that I mean all medical exemptions from all vaccines throughout childhood/while attending public school.

I would remind you all that under conventional standards, these total and permanent exemptions do not exist except in the minds of the vaccine concerned, and under a minority standard of care which has not yet been confirmed by the courts, (plus the argument that such exemptions were permitted under SB 277). Right now, the law allows for the revocation of total and permanent ME’s written by physicians who have been disciplined by the Medical Board. But hey, we are living through a pandemic, and extreme times call for extreme measures, or so it will be argued.

I think it is a reasonable guess to think that Senator Pan and his confreres are going to try to require COVID-19 vaccination (once it is available), and I don’t see them letting kids who are seemingly healthy, but “medical fragile” back into school without it. Hey, it’s a pandemic! The easiest way to do that would be to rescind all ME’s that do not comply with SB 287/714 2021 guidelines. That would certainly be harsh, but now would be the ideal time to try this because there is more fear than knowledge about how this pandemic will shake-out. Meaning, will it come and go quickly, and not reoccur like all the recent epidemics, or will it come back in waves like the Spanish Flu (where the majority of the 50-100 million deaths occurred during the second wave in the fall of 1918). Look what these folks did with under 200 measles cases (38% of which were from the vaccine) and no deaths.

I hope I am wrong about this, and that Senator Pan and his group will sit this legislation session out on the vaccine issue and not try to take back what they were very begrudgingly forced to give up in 2015 and 2019, but maybe I am being too hopeful. Regardless, it is worth thinking about a plan, and I suspect some are already doing so.

Rick Jaffe, Esq.

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