The Short of it on California Medical Exemptions under SB 277, and a bit on the Possibly Soon to be Mandatory COVID Vaccine

The Short of it on California Medical Exemptions under SB 277, and a bit on the Possibly Soon to be Mandatory COVID Vaccine

I have written many posts explaining California medical exemptions written under SB 277 which was in effect from January 1, 2016, until December 31, 2019.   See http://rickjaffeesq.com/2019/09/23/caesar-has-spoken-the-cali-department-of-public-health-provides-answers-to-some-of-your-questions-about-vaccine-medical-exemptions/

http://rickjaffeesq.com/2020/06/10/will-my-childs-california-permanent-medical-exemption-be-valid-next-year-if-she-changes-schools/

I keep on getting questions about it. Unfortunately, I don’t have the time or capabilities to respond to questions of individual families, so let me lay it out as plainly as I can once again with some caveats.

If your child had a medical exemption written during the time was SB 277 in effect AND your child was in a grade span, the exemption should be valid throughout the entire duration of that grade span, if your child remains in the same school.

Let’s unpack that: That means:

If your child had an SB 277 ME but was not in a grade span (i.e. wasn’t in school or K or T K) then the SB 277 ME is not valid when your child enters the first-grade span or changes a grade span. For example, if the date of the ME is 2017 or 2018 and and your ME exempt child is starting school now or next year, you’ll need an SB 276/714 ME, but they are now obtained via the new forms and procedures on-line. However, almost no physicians are willing to write ME’s under the new law because of the change in the law, including that if a physician writes more than 5, she gets reported to the Medical Board, and because any ME beyond ACIP guidelines can (and likely will) get rejected by the CDPH, so what’s the point of docs writing them, or so they think.

The short of it is that Medical Exemptions for broader than ACIP guidelines are over in California, at least in terms of new ones.

What about if my child moves schools within the same grade span. Will my child’s SB 277 ME remain in effect?

My view was that under the statute, the new school was required to honor an otherwise valid SB 277 ME. However, I have heard of many instances in which the schools have simply refused to honor these ME’s. I am not aware of anyone filing suit challenging such a school action. I have also heard legal justifications for denying SB 277 ME’s from grade span transfer students.  So, if you have to move your child, be aware that your SB 277 ME may not be honored.

And of course, under SB 277, ME’s only continue until the end of the grade span. Once your child enters a new grade span, she needs a new ME under the fully implemented SB 276/714 process.

The Context

Even before pandemic world, there were many stories about schools rejecting seemingly valid ME’s because the writing physician was a known and infamous ME writer, or because the physician had died, or just because the child seemed perfectly healthy. So you shouldn’t be surprised that this would continue now that we live in the world of the pandemic with all the hope and faith in the COVID vaccines.

What about the mandatory COVID vaccine as a requirement to attend school?

By now, you have all heard that the LA country school district is requiring a COVID vaccine for school entrance when school begins.

Let me be very precise, mandatory school vaccination is legal and constitutional in the state of California, as well as every single state in the United States. You may not like it or agree with it, and you may want to wish it were not true, or maybe you are working to overturn it, but it is a fact, and especially in these days, it is important that people acknowledge basic facts and existing law.

BUT

As you also all know, as of now, both COVID vaccines being administered are Emergency Use Authorization approved only, which means they are technically “investigational.” I have talked about this before.  See.http://rickjaffeesq.com/2020/12/24/mandatory-covid-vaccination-is-it-coming-and-is-it-legal/

It is not obvious that a state or municipal government authority has the power to mandate an investigation pharmaceutical agent (in this case a biologic rather than a drug, and I say agent rather than a vaccine because technically, an mRNA product cannot be a vaccine because there is no antigen; it works more like a change to the body’s operating system, or so it has been explained to me).

It’s complicated because of the interplay of state and federal law. However, California has codified the Nuremberg Code which requires informed consent for (and rejection of) experimental procedures, which by definition is what EUA is. So theoretically, the LA county mandate, if it goes into effect, should be determined to be illegal. But of course, expect LA County (and others who follow its lead) to vigorously argue for the legality of it, probably keying into the issue of therapeutic intent.).

Also, I believe as part of the compromise in eliminating the personal belief exemptions, the legislature in SB 277 agreed to reinstate the PBE in the future for any new vaccine added to the school vaccine schedule. That should provide an additional argument against mandating the COVID vaccine for school children, which is why it wouldn’t shock me if the Legislature attempted to remove this provision during the new session due to the pandemic. That could be the next legislative battle for the vaccine concerned in California.

Rick Jaffe, Esq.

 

 

 

 

 

 

 

 

8 thoughts on “The Short of it on California Medical Exemptions under SB 277, and a bit on the Possibly Soon to be Mandatory COVID Vaccine

  1. Both my kids have IEP’s & have been exempted from requirements. I assume/hope Rona vaccine will encompassed in this exemption.

    Do you hold the same opinion?

    Best, Susan Roberts

      1. true enough, but there has been some lawlessness on the part of some schools regarding state law before the pandemic. That being said, IEP protected kids should be the last kids the schools should go after, exemption or non vaccinated wise. And For sure Susan, contact Christine and her group if you have any further questions.
        RAJ

      2. Hi Christina,

        Thanks for your input. I went to the Vaxxed dinner @ your house a few years ago! We left Bay Area in 2019 & now living in SoCal. So far new District has been ok. Some semantics on how they viewed the “language” of law but all good so far.

        Best, Susan

  2. Do you think they will accept the personal belief exemption for the COVID vaccine since they are asking it to be required for students? Or will the fact that the emergency still exists and it is a counter measure as opposed to an addition to the schedule be the reason they will not allow the personal belief exemption be the argument.

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