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Author: Richard Jaffe

“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

I get asked that alot these days. But, as I have said repeatedly in these posts, I can’t answer each family’s specific question about this, not even the families who have exemptions written by Ken Stoller (who I represent). So again, I won’t be answering any of your calls or messages about your child’s specific circumstances.

Aside from my inability to deal with the shear volume of families who have questions, the reason I can’t answer specific questions or offer a legal opinion about specific cases is: 1. The new law has some vagueness in it and more importantly, 2. Regardless of what the law says, – even when it is clear – it is not clear to me that the schools will follow the law.

That being said, here is what I know to be the case about the new law:

If your child is not changing a grade span (entering a new check point) and is staying in the same school, your child’s medical exemption should continue to be technically valid next school year.

But there is a big caveat/exception:

If the physician who has written the medical exemption is under a medical board disciplinary order (roughly speaking), and the department of public health finds out about the exemption, the exemption can be revoked. I assume, (but do not know for sure) that the revocation will be automatic based solely on the physician’s disciplinary status and will not require the revocation procedure set forth in the statute. But as stated, I am not sure, because the statute is not clear about this.

Right now, I think there are only one or two California licensed doctors under board order, and I would expect every exemption that those physicians have written will be revoked after the public health department learns about the exemption. The board is currently investigating many, if not most of the physicians around the state who have written the majority of medical exemptions.

No one knows how these cases will shake out, but my educated guess is that the board will try to put all of these doctors under a board order, so that all their medical exemptions can eventually be automatically revoked by the department of public health. In the next year or two, I would expect that other physicians will be put under board order, so I would expect the list of physicians whose exemptions can be revoked will increase.

How will the department of public health find out about grandfathered exemptions in 2020 and beyond, since SB 714 eliminated the CAIR reporting of these exemptions?

Two ways: I suspect many public schools will send all their students’ medical exemptions of otherwise healthy children to the state public health department, because I think most public schools do not want unvaccinated healthy but “medically fragile” children in their schools.

Second, I think the county public health department offices will go around to the schools and request to see the vaccine exemption records, despite the fact that it is not technically legal to do so absent very specific circumstances which do not normally exist.

My gut tells me that the state department of health under the direction of Charity Dean already has a plan for discovery all of these medical exemptions, and that we are in the early stages of implementation, with more serious efforts coming in 2020. But this is just my best guess based on some of the things I am hearing around the state from different sources.

Beyond the ability to revoke medical exemptions issued by physicians under board discipline, the department of public health has the ability to rescind exemptions that do not comply with the new law, meaning exemptions beyond CDC guidelines adapted by the various lettered organizations and consensus statements. However, that power appears to be limited to exemption letters written in 2020, and exemptions forms submitted in 2021 and beyond. It does not apply to pre-2020 exemptions which are commonly described as “grandfathered.” Under the current law, the only way a grandfathered exemption can be revoked is if the exemption writing physician is under board order as discussed above.

What about if your child is changing schools within a grade span? Will the medical exemption still be valid?

I have two things to say about that: First, there is nothing in the new law which states or implies that an exemption for a grade span becomes invalid upon changing schools. That the good news. The bad news is that I am hearing that some public schools are taking the position that exemptions are not valid if the child moves to a new public school. This position is another manifestation of the fact that the vaccine fragile medically exempt are not wanted in the public schools. At some point, this may end up in court, but until then, I would expect this to continue and increase in frequency.

What’s the bottom line?

Let’s compare and contrast the SB 276/714 situation to the implementation of SB 277’s removal of the PBE (personal belief exemption). There are still families who have valid PBEs because their children are still in the same grade span when these pre 2016 PBEs were filed. Other than entering a new checkpoint/ grade span, there was no way for the public health department to cancel a PBE.

Now, grandfathered medical exemptions can (and will) be revoked if the exemption writing physician is or goes under a board disciplinary order. More physicians will come under board order in the future, so many more exemptions will be subject to being revoked, and the public schools and the county public health departments will make sure that all of the exemptions written by the disciplined physicians find their way to the public health department (or the public schools on their own will simply reject these exemptions).

But even beyond that, public schools are starting to reject or not honor medical exemptions for the vaccine fragile, which actions I think will continue and increase. How long this process will take for any specific exemption to be rejected/revoked is impossible to say. But my guess is that the majority of grandfathered vaccine fragile based medical exemptions will eventually be revoked for kids in the early part of a grade span. So many or most of these families will need another plan, if they want to continue to decline vaccination. Right now, the only two options are home schooling and moving to another state. Of course, things could change, but the above is the most likely outcome, as I see it right now.

Rick Jaffe, Esq.

Ken Stoller Lawsuit Update: We’re Still in the Game!

Ken Stoller Lawsuit Update: We’re Still in the Game!

Here is the new update: Read the whole thing. We’re looking for the smoking gun!

https://gogetfunding.com/blog-single-update/?blogpre=6112639&single=42135

Rick Jaffe, Esq.

When Do New California Laws “take effect”?

When Do New California Laws “take effect”?

Technically, regular California legislation takes effect on January 1, on the year following passage.

Here is the Secretary of State language and URL about it.

“A statute enacted during a regular session of the Legislature takes effect on January 1 of the following year, unless a later date is specified in the statute.”

https://www.sos.ca.gov/administration/bill-chapters/

Therefore, SB 276/714 does not “take effect” until January 1, 2020 (and I’ve revised a prior post which suggested or stated otherwise). However, I don’t think that’s the end of the story for several reasons.

First: some schools are citing the newly passed and signed law as a basis for rejecting exemptions which conform to the technical requirements of SB 277. That might be illegal, but it might require an injunction action to reverse the school’s action. In addition, some schools are forwarding these ME’s to the department of health and to the medical board to initiate a complaint, now supposedly under the new law. (Yes, some were doing it before the new law was passed and signed, but now they have additional support to do so, or so they think.)

Second: I think from a practical point of view, the new law is in effect in that it the passed and signed into law has consequences for physicians contemplating writing ME’s. Here is why:

SB 277 eliminated the PBE. The asserted trade-off was supposedly a more robust medical exemption. It is under this more robust ME that all of your ME’s were written. The SB 276 PR narrative was that a few bad apple docs were writing fake medical exemptions not consistent with the medical standard of care. The purpose of SB 276 was to shut down these fake ME’s by instituting a review process whereby all of these ME’s which were not consistent with the standard of care would be reviewed and revoked. At the last minute, the Governor demanded that the existing fake ME’s be grandfathered and not revoked. As a compromise, there was a grandfathering provision for ME’s written up until the new law technically came into effect on January 1, 2020.

So theoretically, physicians still have the ability to write ME’s under SB 277 for the rest of 2019.
Except that SB 276, its legislative history, and the PR campaign made it clear that the powers-that-be thought that vaccine concerned docs were abusing and misinterpreting SB 277 to write ME’s beyond the accepted medical standard of care, and SB 276/714 clarified that medical exemptions have to conform to that standard of care.

So, while it might be arguable that prior to SB 276/714 being signed into law, physicians had or could have had a reasonable belief that SB 277 gave them the power to write these broader than conventional standard of care exemptions, once the new law was signed, I am not seeing that argument. I think that as of September 9, 2019, physicians will be deemed to be on notice that their interpretation of SB 277 was incorrect and any subsequent ME’s had to conform to the standard of care. Still, I am guessing that for whatever reason, there may be docs who will continue to write these vaccine concerned exemptions. However, doing so will make it much harder for them in a licensing case, and I fear it will change the outcome of some of these cases.

So yes, technically, SB 276/714 will not “take effect” until January 1, 2020, but as a matter of fact, the law is being deemed to be in effect right now by some schools, and I think the new law will have a significant (and adverse) effect on physicians who continue to write vaccine concerned medical exemptions for the rest of 2019.

Rick Jaffe, Esq.

Caesar Has Spoken! The Cali. Department of Public Health Provides Answers to (Some of) Your Questions about Vaccine Medical Exemptions

Caesar Has Spoken! The Cali. Department of Public Health Provides Answers to (Some of) Your Questions about Vaccine Medical Exemptions

A couple days ago, the California Department of Public Health (“CDPH”) Immunization Branch (the head of which is otherwise hopefully soon to be known as “Defendant” in Ken Stoller’s lawsuit) published “Vaccinations and Medical Exemptions Questions and Answers.”

Here it it. Every vaccine concerned parent should read it.

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Vaccinations-Q-A.aspx

The good news is that it gives authoritative answers to many, but not all of the questions that I have seen circulating in the California vaccine concerned community.

Here is the most important FAQ, and answers parents’ questions about how long a current ME is good for:

“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.

• The only existing medical exemptions that could be revoked are those that were written by a doctor subject to disciplinary action by the Medical Board.”

The good:

If you’re child is currently in transitional kindergarten though the 5th grade, you child’s current ME is good for the 2020-2021 school year (except for possibly exemptions written by a board sanctioned physician).

The bad:

If your child is currently in the “birth to preschool” grade span, or is in the 6th grade, you will need a new ME to enroll your child in the next grade span for the 2020-2021 school year. Meaning whatever ME you have in your hands today will not be accepted next fall. You will need a 2020 medical exemption to enroll your child in the next grade span. People, this is not hard to understand, though it may be hard to accept.

What about switching schools in the middle of a grade span?

There is nothing in the CDPH FAQ’s which state or imply that switching schools requires a new medical exemption. I don’t see that in the law. I know there is talk/concern about switching schools being a “check point”. A “check point” might be something from a prior iteration of the law, but I do not see it in the new law, and neither does the CDPH. Which is not to say that a school might not misapply the old law or read into the new law such a requirement. What I am saying (and the CDPH apparently agrees with me) is that switching schools in the same grade span does not trigger a requirement for a new ME under the current law.

The illusion of broader than CDC guideline-based exemptions:

Consider the following two FAQ’s and their answers:

“My child has a health condition that is not listed in the federal Centers for Disease Control guidelines. Can they still get a medical exemption?

SB 276 and SB 714 do not limit the types of medical conditions that would qualify for a medical exemption. Medical exemptions can be granted for reasons outside of the Centers for Disease Control (CDC), Advisory Committee on Immunization Practices (ACIP), and American Academy of Pediatrics (AAP) guidelines including family medical history, if they are consistent with the standard of medical care for that condition. Doctors issuing a medical exemption will provide a description of the medical basis for the exemption.”

“Does this change in the law prevent or limit doctors from granting medical exemptions?

No. Doctors will continue to have discretion to determine whether a child should get a medical exemption. When a medical exemption is issued, the doctor will describe the medical basis for the exemption. That basis must be consistent with the standard of medical care for a particular medical condition or align with CDC, ACIP, and AAP guidelines. Medical exemptions will only be reviewed when the immunization coverage at a school falls below 95% or the doctor has issued 5 or more exemptions in a year beginning January 1, 2020 or the school where the child with a medical exemption attends fails to provide immunization reports to CDPH.”

I call this an illusion because the so called “standard of care” is the CDC, ACIP and AAP guidelines, the most detailed explanation of which is in AAP’s “Red Book” of pediatric infectious diseases. This is the gospel according the AAP and sets out from on-high, the standard of care for all things infectious disease related. To talk about the conventional “standard of care” which is not in the above lettered groups/standards or in the Red Book is a set with noting in it.

My view is that there are very few, and probably no current medical exemptions written by vaccine-aware physicians which meet these standards. One of the reasons I think this is that the conventional standard of care does not recognized the concept of a medically or vaccine fragile child for which it is too dangerous to give any vaccine over the course of childhood. The new law makes clear that exemptions have to be vaccine specific based on the above guidelines which is the (conventional) standard of care.

Most conventional vaccine exemptions are temporary, based on a child being drug induced immunocompromised (chemotherapy for example) and once the therapy clears the system, the reason for the exemption ends. All childhood-based exemptions are for specific vaccines based on a reported and usually treated serious adverse event to a vaccine or a multiple vaccine shot. Conventionally, (wrong as you might think it is) a serious adverse event to one vaccine shot does not medically justify an exemption from all vaccines throughout the duration of childhood.

In short: despite the hopeful language in the FAQ answers, my view is that essentially none of the exemptions written by the vaccine aware physicians are compliant with the conventional standard of care, as set forth in the Red Book and the above lettered organizations or standards.

The big unanswered question:

Will the ME’s written by physicians who have been sanctioned be automatically revoked?

I have dealt with that in a prior post. I do not see a definitive answer in the CDPH FAQ’s, probably because they haven’t figured it out yet and they want to keep their options open.

Rick Jaffe, Esq.

Update on Ken Stoller’s lawsuit against the Medical Board (and others): We’re still in the game!

Update on Ken Stoller’s lawsuit against the Medical Board (and others): We’re still in the game!

Here is the latest update on Ken Stoller’s Lawsuit against the Medical Board (formerly against the San Francisco City Attorney)

https://gogetfunding.com/blog-single-update/?blogpre=6112639&single=41583

If you want to see the proposed Second Amended Complaint with the update claims based on the illegalities uncovered. here it is:
SAC992019

Rick Jaffe, Esq

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.

Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

The new California vaccine exemption law is vague, badly written and not well thought-out.

First, let’s get on the same page. Look at SB 714, because that is really the operative law in that it changed SB 276 even though both because law the same day. Here it is:
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB714

What is a grandfathered medical exemption?

What is commonly referred to as grandfathered vaccine medical exemptions are exemptions written by a California licensed physician on or before December 31, 2019.

What school years does a current or grandfathered medical exemption apply to?

Subject to what comes later in this post, if you child currently has a permanent medical exemption, it should be effective for the current school year (2019-2020).

If your child will not be starting a new “grade span” next school year, then under the terms of the grandfathering provisions, your child’s exemption should be good for next year also (2020-2021), and should remain valid until your child enters the next grade span.

There are exactly three “grade spans”

“(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

This much of the law of grandfathered exemptions is clear.

It is also clear that there is no longer any such thing as a permanent medical exemption. Exemptions are at most good for one grade span.

Can a grandfathered exemption be revoked?

Yes, under the following provision in 120372:

“(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.”

Is the revocation automatic?

My current thinking is that these exemptions should not be automatically revocable or revoked, but I am not sure. What I can relate to you is that the subpart immediately preceding (4) dealing with grandfathered exemptions has the following language:
“(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.”

If this subpart (3)(C) applies to grandfathered exemptions, then grandfathered exemptions would have to go through this revocation process and presumably the appeal process as well. I think there is every reason to believe and hope that the authorities will use the revocation process in (C) for exemptions written by physicians under a board order. (As of today, I only know of one such physician, Bob Sears, but there surely will be more in the future).

But as a lawyer who is attuned to jurisprudence and how the law should be, I do have a small, nagging concern on the application of this subpart (C) department of health revocation process and whether it applies to grandfathered exemptions. Also, fyi, I am a hope-for-the-best, but expect-the-worst-kind of a guy. Caution: My concern is in the weeds.

The revocation process is triggered by a review of medical exemption submitted to CAIR. Under 276, grandfathered medical exemption letters had to be submitted to CAIR, but not so under the final version of the law, i.e., with SB 714’s changes.

So, how can there be a revocation process for exemptions which are not in the department of health’s reviewable CAIR database? What is the statutory mechanism by which the department of health obtains and then reviews grandfathered exemptions?

Of course, on an ad hoc basis, schools will probably submit questionable exemptions to the department of health. However, that really does not solve the problem that there is a gap or hole in the statutory scheme. There is a revocation process for exemption forms all of which are centrally filed. But grandfathered exemptions (and 2020 transitions exemptions) are not in the database and hence not directly accessable by the department of health, which is supposed to handle the exemption revocation process. And to me that’s a head scratcher.

That gap might cause an interpretation that grandfathered exemptions are not subject to the revocation process by the department of health, which could lead to an interpretation that exemptions written by physicians under probation are automatically revoked/revocable.

Beyond this technical issue, we are dealing with vaccination. The state authorities and schools believe the fake exemption narrative, and they sure don’t like Bob Sears. So, I have to at least wonder whether some schools, perhaps with quiet consultations with the public health department, might decide that his exemptions are automatically revoked, (because he is currently under probation with the Medical Board).

I don’t think a court would necessarily see it that way, meaning upholding an automatic revocation interpretation. However, it is possible that based on the government narrative promoted by the media (i.e., renegade, unethical physicians writing fake medical exemptions for thousands of healthy kids, which endanger zillions of people), some schools might simply not accept medical exemptions written by a physician on probation, even before the full implementation of the new law.

One of the reasons I think that might be a possibility is because prior to the new law taking effect on September 9, 2019, schools were not honoring exemptions written by physicians who were under board investigation, and there was absolutely no legal authority for schools to do that.

Now, there is a statute which states that an exemption written by physician under probation can be revoked, AND, the provision does not expressly state that the rule for revocation of medical exemption forms applies to these grandfathered exemptions.

So, my conclusion is that while I think the revocation process should apply to grandfathered exemptions and that medical exemptions written by physicians on probation should not be automatically revoked/revocable by the health department, I cannot say for certain, and I surely wouldn’t predict that is the way the statute will be interpreted by the department of health, or implemented by the schools. Given the times and climate, it would not shock me if sooner or later, some schools will simply refuse to accept a grandfathered exemption written by a physician under Board probation, which would force a family to home school or take legal action.

I hope to be proven wrong. For now, watch, wait and let’s see how this shakes out. I would note that every day, something new seems to be happening with the Medical Board and schools. I can almost hear the conversations over the phone lines and see the email exchanges between all these government, legislative and school officials plotting and planning, and what I am sensing is there is more to come.

Rick Jaffe, Esq.

Medical Vaccine Exceptions Submitted after Full Implementation of the New California Vaccine Law

Medical Vaccine Exceptions Submitted after Full Implementation of the New California Vaccine Law

Previously I’ve tried to explain each of the two operative provisions of the new California vaccine law, Health and Safety Code Sections 120370, and 120372 separately. In retrospect, that was confusing.

I think a better approach is to talk about the three types of medical exemptions under the new law, and the different types are really just temporal differences, meaning grandfathered exemptions (current exemptions and those written up until December 31, 2019), transition exemptions written during calendar year 2020, and medical exemption forms submitted upon the full implementation of the law on or after January 1, 2021.

What I have written has made some folks eyes glaze over because of all the information, so in this post I am only going to talk about what I think is the clearest part of the new law, namely exemptions under full implementation starting January 1, 2021. And to make this easier to read, there will be no statutory citations or quotes from the statute.

Here is what the new law requires in 2021 and beyond, and what it means to the families.

1. Exemptions are by submission of a state created form which will contain at least the information set out in the statute. (the form could contain more requested information).

2. Exception forms are filed in the CAIR database.

3. Exemptions must be based on the current standard of care, which theoretically could possible include family history, but only if it comports with the accepted standard of care. In my opinion none (or virtually none) of your exemptions will meet that standard.

4. The state has the power to review any medical exemption form.

5. A medical exemptions can be revoked if it does not comport with the accepted standard of care.

6. A decision to revoke an exemption can be appealed.

7. During the appeals process, (however long that takes), your child stays in school.

8. In addition to exemption revocation, some exemption forms will not be accepted; specifically all exemptions written by doctors (i) under most forms of board sanction, (ii) who are the subject of a board sanction proceeding, (i.e. have an Accusation filed against them) and (iii) who the department of health thinks is creating a public health risk by writing that/those exemptions. I predict that this last “public health risk” exception will be applied to any physician writing exemptions for all vaccines for an entire grade span which is the closest thing there is to a permanent exemption under the new law.

9. I read an exemption which is “not accepted” as not being subject to a revocation appeal, because “not accepted” is different from revocation. But that could be a matter of interpretation by the health department.

That is the new law as it will apply to all exemption forms submitted on and after January 1, 2021

What it Means to Physicians

The law creates extreme disincentives for physicians to write medical exemptions. Anyone writing 5 or more medical exemptions can and probably will get reported to the Board for investigation.

The state department of health has the right to reject all medical exemptions from any doctor who it thinks is endangering public health. As indicated above, I believe these folks believe that any physician who writes even one exemption beyond the conventional standard of care is endangering public health, so it is unlikely that any such exemption form you submit will be accepted.

In addition, physicians cannot charge for an examination for a temporary exemption or for filling out the form.

It will only be the brave and very foolhardy doctor who attempts to obtain a medical exemption from all vaccines for a grade span for any child.

In short, I think the new law will end medical exemptions for what the vaccine community considers the medically or vaccine “fragile.” I think it also ends exemptions for all vaccine injured children, unless a child has a contraindication for every single vaccine from which exemption is sought.

I think this part of the law is clear. What the law says and how it will be interpreted as to the other two categories of vaccine exemptions – grandfathered and exemptions written in 2020, is not clear. To explain why, I will have to cite and quote the law and get into the weeds, which I’ll do in another post.

Rick Jaffe, Esq

EVERYONE NEEDS TO TAKE A BREATH!

EVERYONE NEEDS TO TAKE A BREATH!

The new California vaccine exemption law only has an obvious immediate effect on physicians contemplating writing new exemptions. Families with vaccine medical exemptions have some time to figure things out, especially families with all their kids currently in school.

There will be legal challenges which will take months to resolve, if not longer. Analysis, planning and strategic thinking are what’s needed. Not emotion or panic.

Because of what I think are some technical defects in the law, there are not definitive answers to some of your questions, and some facets of the new law are going to depend on how the schools and public health department interpret defects and poor drafting of a law which was substantially changed at the very last minute.

If your kids are in school now, you don’t need an answer right this minute to every question about what’s going to happen to your medical exemption next year or the year. As indicated, some of those answer will only be known once the authorities start interpreting and applying the law.

So take a breath, exchange ideas with community members and see what ideas/workarounds are out there, and don’t panic!

Rick Jaffe, Esq.

New Round of Medical Board Subpoenas to the San Diego School District Requesting Medical Vaccine Exemptions

New Round of Medical Board Subpoenas to the San Diego School District Requesting Medical Vaccine Exemptions

I have head that as many as 200 families have received a letter from the San Diego School District informing them that their childrens’ vaccine exemption information has been subpoenaed by the Medical Board. I have also heard that the multiple physicians who have written these exemptions (and they are not just located in San Diego County) have been flooded with calls from these families.

Here is what is going on and what you can do about it

My guess is that San Diego schools have filed dozens or hundreds of complaints with the Board about alleged inappropriate medical exemptions written for seemingly healthy students who are claimed to be medically or vaccine fragile, or who experienced some prior vaccine injury that does not qualify for a permanent vaccine exemption. The complaint was against the doctor who wrote the exemption, and probably did not include the student’s name.

Without the name, the board can’t ask a physician for a specific patient record. Or if it has the student’s name, the Board wants to review the exemption first before it seeks the medical records from the physician, due to evidentiary requirements in a court hearing showing “good cause” if the doctor refuses to comply with the records’ subpoena.

Either way, the Board needs the actual medical exemption to proceed. The vehicle to obtain that document/school file is a Board investigational subpoena for the records of the student. To comply with federal and/or state privacy law, and to protect itself, the school district has notified the parents about the subpoena and informed them that the school intents to comply.

The letter informs the parents that if they have a problem with that, they should contact the board investigator who issued or is in charge of the subpoena process.

Notifying the Board investigator is certainly something families should do. if they do not want their children’s school records released to the Board. It might be a good idea to also notify the school, i.e., the person who wrote the letter to the family, and say they object to the school’s providing the records.

In Norcal when this has happened with the 5 doctors under board investigation, because of the objection of the parents, the Board was forced to go to court on a motion to compel compliance with an investigational subpoena and have the school appear. Because the schools are usually the party complaining to the Board, they do not oppose the request. They just want a court order compelling them to do it, which is legal protection against potential claims by parents for the unauthorized release of school records.

Obviously, this is the initial part of the SB 714 process of putting all vaccine exemption writing doctors under board order/sanction, so that grandfathered exemptions can be eventually revoked.

And so it begins.

Rick Jaffe, Esq.