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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.

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.

To All California Physicians: Watch out for Scammers Claiming to Be DEA Agents and Demanding $25k

To All California Physicians: Watch out for Scammers Claiming to Be DEA Agents and Demanding $25k

As if physicians didn’t have enough to worry about, apparently there is a scam being being run on California physicians. They are getting a call from someone claiming to be a DEA agent stating that the physician is under investigation. The caller requests a $25,000 bond, maybe to make the investigation go away.

Here is what the Medical Board of California says about it:

“Fake DEA Agents Extortion Scam
The Medical Board of California (Board) has learned that scam artists posing as U.S. Drug Enforcement Administration (DEA) agents or Board staff are calling California physicians as part of an extortion scheme. The scammers identify themselves as DEA agents or Board staff calling about ongoing investigations regarding their license issued by the Medical Board of California (Board). The scammers tell victims their license may be suspended for illegal drug trafficking and the suspension means they will not be able to practice. The scammers may provide an “Agreement for the Bond and Protocols” that includes statements that licensees are not to share or disclose the investigation to any third party and agree to a bond fee payment of $25,000.00. The scammers’ phone number may show up as the Board’s toll-free number (800) 633-2322.

No DEA agent or Board staff will ever contact physicians by telephone to demand money or any other form of payment. If you receive a call such as the one described, refuse the demand for payment. Please also conisder the following:

If the caller is stating they are from the DEA, immediately report the threat using the DEA’s Extortion Scam Online Reporting form.
If the individual identifies themselves as a Board employee, please contact the Board at 1-800-633-2322 or send an email to webmaster@mbc.ca.gov.
If the phone number of the caller appears to be the Board’s toll-free number, it is recommended that you submit an online complaint with the Federal Communications Commission (FCC) using the FCC’s Consumer Complaint form or contact the Board so it can provide this information to the FCC.”

http://www.mbc.ca.gov/News/Fake_DEA_Agents.aspx

Don’t be fooled!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Major Update on the Stoller Case: New Defendants Added and New Claims Made

Major Update on the Stoller Case: New Defendants Added and New Claims Made

Here is the update on the gogetfunding website:

https://gogetfunding.com/blog-single-update/?blogpre=6112639&single=39663

Here is a pdf of the amended complaint. (The beginning is mostly the same as the original)

Amended Complaintfiled

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

So, You Just Received a Certified Letter from the Cali. Medical Board Asking you to Sign a Release for your Child’s Medical Records. What are your Options?

So, You Just Received a Certified Letter from the Cali. Medical Board Asking you to Sign a Release for your Child’s Medical Records. What are your Options?

Social Media is abuzz with posts from parents who have received a certified letter from the Medical Board of California demanding that they sign an enclosed release which authorizes their child’s physician to release his/her medical records to the Board.

What should you do?

Actually, for a variety of reasons, I am not going to tell you what to do or give you legal advice of any kind. What I am going to do is lay out a decision tree providing you with some information which may help you decide.

FYI: As I’ve explained in a recent post, California may be the only state in which its medical board cannot automatically obtain patient medical records from a physician. Here is that post: http://rickjaffeesq.com/2019/07/05/can-the-cali-medical-board-obtain-your-childs-medical-records-without-your-consent/

That means the California Medical Board has to first ask the patient’s permission to obtain the records. Most of the time, that isn’t an issue, since many Board investigations are started by a patient complaint, so the patient is obviously willing to have the Board review his/her medical records. But if someone other than the patient complains, well then it becomes an issue. In vaccine exemption Board investigations, the complaints almost never come from the patients, but rather from school nurses or the child’s PCP, most often an HMO.

So, in these cases, the Board is obligated ask the family for a waiver/permission to obtain your child’s medical records. The letter mentions subpoenas and legal process. These letters are meant to intimate you but are vague enough so as not to make a direct threat against you. All with an eye to maximize the chance that the family will comply and send back the release/waiver.

Here is how you should analyze the letter.

You have two options:

Option 1: sign the release and send it back to the Board.
The Board will send the release to the physician, and the physician will be obligated to send the medical records to the Board. The records will be reviewed by a medical consultant. If the care involves, let’s say, a medical vaccine exemption beyond the CDC contraindications, (or to make it even more simple, if it is a permanent exemption from all childhood vaccines), the medical consultant will conclude that the exemption was not within the standard of care. Eventually, the doctor will be charged with a Board violation.

Option 2: Do nothing.
If you do nothing, for sure in a few weeks to a month or two, you will receive the same letter again. If you continue to do nothing, then either 1. That will be the end of it, or 2. It’s possible, that you might get a visit from a board investigator who will you ask you in person to sign the form. (I suppose another option would be to write back and say you don’t agree to release the records, which may or may not avoid an Board investigator’s visit)

You have two choices:

Choice 1: Sign the form

Choice 2: Tell the investigator that you’re not going to sign and politely ask him to leave. If you do, he/she will indicate in the most authoritative/mildly intimidating tone that he/she is going to have to subpoena the records from your child’s physician.

You have two possible responses:

Response 1: Sign the release

Response 2: Tell him you’re still not going to sign, and again politely tell him to leave.

What happens to you if you chose Response 2?

NOTHING. You do not have the medical records he/she seeks, so there is nothing the Board can do to you or your family.

In short, you are NOT legally obligated to sign the waiver to release your child’s medical records, and there will be no consequences to you if you refuse to do so.

What happens to my child’s physician if I do not sign the waiver?

The board will serve your child’s physician with a subpoena for the records. The physician may or may not comply. If you do not want your physician to comply, after you receive the letter from the Board, inform your doctor about the request and tell him that you do not agree to have your child’s medical records released to the Board.

At some point, the Board will go to court to compel the physician to turn over the records. Candidly, there is a very good chance that the court will side with the Board.

But that’s not your problem and is not necessarily directly relevant to your options and decision as to what you should do if you receive that Board letter.

So, there you have it. Hope it helps.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

San Francisco City Attorney Event Starts Soon; Here is the Updated Contact Information

San Francisco City Attorney Event Starts Soon; Here is the Updated Contact Information

The event starts soon:

Call the City Attorney’s main number

415-554-4700

or TTY 415-554-6770

or fax: 415-554-4715

or email him at cityattorney@SFcityatty.org

Corrected Stoller Complaint

Corrected Stoller Complaint

Per my previous post, the complaint had a couple misplaced decimal points and the wrong antonym in a sentence. I fixed it and some folks wanted the corrected version to drop-off to their Assembly person, which I’ve said is a very excellent idea.

Here is the corrected version, and it even the official case number.

correctedcomplaint

Go and spread the word to the Assembly folk that unvaccinated kids are not the primary vectors of the measles problem in, at the very least, the San Francisco Bay area, and that when it is all laid out like it is in the Stoller complaint, it’s clear that Senator Pan et al are just trying to pull another fast one, and finish what they couldn’t get done with SB 277.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Rally Day for Cali SB 276: Keep your eye on the ball!

Rally Day for Cali SB 276: Keep your eye on the ball!

Today, April 24th is hearing day on SB 276, which bill seeks to remove the medical exemption decision making from the physician, and places it in the hands of public health officials, and there’s no requirement in the bill that it be a physician. That seems like a bad idea to me.

On the other hand, I wouldn’t mind seeing some guidelines issued by the Medical Board, similar to the medical marijuana guidelines the board issued after California allowed physicians to recommend medical marijuana. A number of docs got into trouble prior to the issuance of those guidelines, because they had no guidance as to what was permissible until the guidelines or at least until the board issued what it called a “precedential decision.”

The same thing is happening with the doctors who are currently writing vaccine exemptions. I was involved in what is so far the only filed case on a vaccine exlusion, and had a chance to get a look at what the board via its experts think about these cases. They take a very strict view of exemptions under the statutes, basically, there are none, at least there are no complete medical exemptions from all childhood vaccination throughout the duration of childhood for otherwise healthy kids.

I’m also working on some active board investigations involving exemption writing physicians. My sense is that some physicians and their supporters have a completely different view of what is permissible exemption-wise, than all conventional medical authorities. The result of these differences is the reason you’ll be in Sacramento today. But keep in mind a couple things:

First: keep your eye on the ball and focus on the actual issue:

Here’s what today is NOT about, at least from the legislators’ point of view:

It’s not about your personal freedom, your right to refuse vaccines for your children because you think vaccines don’t work or are dangerous, or because of any other personal beliefs you or your vaccine concerned friends might have.
Folks, you lost that battle with the enactment of SB 277, and all the failed lawsuits challenging the law.

It might feel good to try to beat a dead horse, but it won’t revive it.

Today is about convincing the legislators that only physicians who have a doctor/patient relationship should be permitted to make a decision as important as which if any vaccines from which a specific child should be exempted.
THAT’S IT!

If the board has concerns about doctors not following what it might call the standard of care, it has two obvious options; Investigate the physicians, and they are doing that now, and promulgate some guidelines, hopefully with the input of the vaccine concerned community (admittedly perhaps naïve),

However, California law does recognize the right of physicians to adhere to a minority view in medicine, because the California legislature wisely understood that it could take a long time for new thinking to change the medical paradigm. I think that’s a lesson which the legislators should remember.

Here’s what could set you free:

“Universal Citation: CA Bus & Prof Code § 2234.1 (through 2012 Leg Sess)

(a) A physician and surgeon shall not be subject to discipline pursuant to subdivision (b), (c), or (d) of Section 2234 solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine, including the treatment of persistent Lyme Disease, if that treatment or advice meets all of the following requirements:
(1) It is provided after informed consent and a good-faith prior examination of the patient, and medical indication exists for the treatment or advice, or it is provided for health or well-being.
(2) It is provided after the physician and surgeon has given the patient information concerning conventional treatment and describing the education, experience, and credentials of the physician and surgeon related to the alternative or complementary medicine that he or she practices.
(3) In the case of alternative or complementary medicine, it does not cause a delay in, or discourage traditional diagnosis of, a condition of the patient.
(4) It does not cause death or serious bodily injury to the patient.
(b) For purposes of this section, alternative or complementary medicine, means those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient s medical condition that is not outweighed by the risk of the health care method.
(c) Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.
(Amended by Stats. 2005, Ch. 621, Sec. 28.5. Effective January 1, 2006.)”
(emphasis added).

It’s worth a shot!

Good Luck!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com