Will my child’s California permanent medical exemption be valid next year if she changes schools?

Will my child’s California permanent medical exemption be valid next year if she changes schools?

I answered that question a few times in other posts dealing with medical exemptions and their future viability in general. However, I figure it is time to do a post specifically on this question, so here goes:

The Law (and the good news)

There is nothing in current California law (and that would be SB 276/714) which states or implies that switching schools within a grade span causes an otherwise valid SB 277 grandfathered medical exemption to become invalid. The only listed reason an otherwise valid ME could be revoked or would not be good is if the physician who wrote it is under a California medical board order (roughly speaking). Otherwise, under the law, a ME should be good for an entire grade span, regardless of a change in school (within the grade span).

The Sometimes Reality (which is the bad news)

After SB 276/714 was signed into law last September, and even before that time, it had been reported to me that some schools were not honoring otherwise perfectly valid permanent medical exemptions. I believe this was largely a collateral effect of the media campaign orchestrated by Senator Pan and his associates in their quest to pass SB 276. As you recall, the narrative was that there were a handful of doctors who were writing fake and/or fraudulent medical exemptions for vaccine hesitant families. I think some school nurses and administrators picked up on that narrative and decided, without any legal basis, to simply reject some of these medical exemptions.

Under SB 277, there was absolutely no legal mechanism by which a technically compliant medical exemption could be revoked by the California Department of Public Health or not accepted by a school. With the passage of SB 276/714, a mechanism/process came into existence by which form medical exemptions submitted electronically starting in 2021 could be reviewed and eventually rescinded by the CDPH. The new law also stated that ME’s written by physicians under board order could be (or possibly automatically were) revoked.

I think what started happening is after SB 276/714 were signed into law, some schools just decided not to accept these permanent medical exemptions for otherwise healthy children. However, it would not shock me if there were communications encouraging schools to do so from the usual public and private sector suspects, but I have seen no evidence of that.

We are now three months into the pandemic, things are starting to open-up, but California is now trending upwards for new COVIF-19 cases. Recently, a letter has been circulated stressing the importance of childhood immunization in these pandemic times. The reason for this communication is in large part because childhood immunization has fallen off because of the shelter in place orders.

This is the context and the times we live in. Per a previous post, I could not even say with certainty that all permanent medical exemptions would be honored in the same school because of all that is going on.
Here is that post.

It seems obvious to me that switching schools means that fresh eyes are going to be looking at your child’s records, including immunization records. In my mind, that puts every child switching schools within a grade span on the radar screen. What a particular school nurse or school administrator does with that might be an individual decision, but again, it would not shock me if some of the usual suspects were encouraging schools to reject ME’s which are technically valid/grandfathered under the current law.

Look, families have to do what they have to do for whatever reasons they have, like moving for a new job. However, I think it is fair to say that if you are going to move your child to a new school within a grade span, that will increase the risk that his or her current and ME will not be accepted at the new school. There is no way to know how much of an increased risk because we do not have enough data points. My guess is that by the first month of the fall session (if there is one), we will know whether this is an isolated problem in just a few schools or something more widespread.

What are my remedies if my child’s school illegally refuses to honor his or her ME.

Since there is no legal basis to reject an otherwise valid grandfathered SB 277 ME, theoretically an injunction lawsuit could be filed. But candidly, lawsuits are very expensive to file and beyond the means of most people. Think many thousands of dollars. I suppose if there are a few students in one school (or school district) whose exemptions have been rejected, costs could be allocated and might be more financially feasible.

I have two caveats: First, if things get bad California, I think judges might be quite hesitant to order an unvaccinated child back into school, in the times we live in. But that just decreases the likelihood of success and is not a risk per se. But second and more importantly, my experience is that most families who have medical exemptions for their children do not publicize that fact, and want that fact protected, as is their right under federal and state school privacy laws. For sure, these lawsuits would be filed with a fictitious named plaintiff(s), but you have to believe that the information would (or at least could) make its way back into the school system and in the school community. In other words, I do not think anonymity can be completely or practically guaranteed. That might be a negative consideration for some families.

With those caveats, yes, a lawsuit by one or a number of families whose children’s ME’s were improperly rejected would be at least viable. Further, there is some preliminary analogous New York State precedent to support such an action.

So, do what you have to do, moving school wise, keep your ear to the ground for others in the same situation, and we will see how it shakes-out in the fall.

Good Luck and stay healthy and safe!

Rick Jaffe, Esq.

4 thoughts on “Will my child’s California permanent medical exemption be valid next year if she changes schools?

  1. Thanks for the pointer!! We are experiencing this thrill ride already for a year plus and now as we actually applied to the new school we know it all hangs by the thread. So thrill is beyond real its a nail biter! Thanks for legal insights as always!

  2. What happens in this case?
    Permanent ME issued in 2019, filed on paper with a school. Taking a year off from said school this fall (2020-2021) due to pandemic uncertainties. Returning to same school following year 2021-2022. Should this school still accept the already filed paper ME from 2019? No grade span changes. Thx!

    1. If the child was in school for the 2019-2020 school year (until the schools shut down in March) then I would think the grandfathered ME should still be valid in the 2021-2022 school year, assuming no change in grade span and in the same school. But alot could change between now and then, most notably, if there is a COVid-19 vaccine and the state mandates it. The grandfathered exemption would not cover the new vaccine, and who knows what new law they will pass.

  3. It seems that the recent guidance issued on 8/19/20 on Shots For School is completely misrepresenting the law. They say that a change in schools with a M/E this fall 2020 is not allowed even within a grade span. However, SB714 clearly states in 120370(2), “(2) 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.”

    Not until July 2021 should the idea of not being able to switch schools within a grade span become an issue, “(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions…”

    How can this be legal?

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