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The Final Stretch in New Jersey’s Race to Eliminate Religious Exemptions to Childhood Vaccination

The Final Stretch in New Jersey’s Race to Eliminate Religious Exemptions to Childhood Vaccination

Like many, I have been following the battle by the vaccine concerned against New Jersey Legislature’s attempt to remove the religious exemption to childhood vaccination. Last year, New York removed religious exemptions by strong-arming one legislator to change his previously cast vote in opposition. In New Jersey, it’s coming down to a last-ditch compromise to carve out or preserve religious exemptions for families who can afford to send their children to private schools where the schools will allow/honor religious exemptions. I have to say, that’s a new one to me.

Here is the way one news story describes it:

“The compromise would end religious exemptions for vaccines in public schools and day care centers — but allow private institutions to admit children whose parents declined to have them vaccinated, according to Sens. Joe Vitale, the bill’s sponsor, and Declan J. O’Scanlon.
Private schools would be required to post outside the building the number of unvaccinated children at each facility.”

My guess is that the posting of the number of unvaccinated on a school’s building is a way to not so subtly pressure private schools to reject accepting the religiously vaccine exempt. It’s like a giant scarlet letter or a sign saying “Caution: this is a leper colony. Enter at your own risk!” I find this requirement fairly appalling. It may work for schools which do not have a significant percentage of religious exempt students, but I know from my dealings with similar issues in California, that some schools are not financially viable if they lose all their vaccine exempt students to home schooling or departure from the state. So, I believe that if the bill passes, some schools will become safe-havens for the religiously exempt.

What about families who don’t have the money to send their children to private schools?

Well they are out of luck under the bill. Whatever rights the richer among us have to exercise our religious rights/freedoms do not apply to the poor, as many in the community have lamented.

I guess that is just tough luck for them. Sucks to be poor. It’s too bad there is no law against that kind of blatant discrimination.

Oh wait, there is. It’s called the Constitution, and specifically the parts that talk about religious freedom and the equal protection under the law. As many of you might know from past posts, I am not a big fan of lawsuits challenging the removal of the personal belief or religious exemptions to vaccination. All past constitutional challenges have failed, and I have repeatedly predicted that future challenges will also fail, so long as we are talking about the complete removal of that right.

However, I am equally certain that a law which only removes the right for those too poor to send their kids to a private school will be struck down on constitutional grounds.

I think what happened is that in a desperate attempt to pass the bill through the Senate, they came up with this ill thought out, idiotic idea. That fact that the Dems are proposing a bill which so obviously discriminates against the poor, shows how that the irrationality of the issue has caused politicians to lose sight of their core values. But as indicated, the New Jersey courts will not let this stand.

To all you braving the cold tomorrow, (including my Cali. Latinas friends, the New Yorkers and Oregonian health freedom fighters) keep up the fight! If it doesn’t work out, a slew of lawyers will soon be joining you for the next phase.

Rick Jaffe, Esq.

The Next Vaccine Medical Exemption Battle

The Next Vaccine Medical Exemption Battle

Rick Jaffe Esq.

Stoller Civil Suit Update

Stoller Civil Suit Update

Today, the court granted the Medical Board’s Demurrer and dismissed the complaint against it. It was not entirely unexpected, per my previous update.

The basis of the decision is that since the Board now has an administrative action against Dr. Stoller, the issues raised in the civil suit should be initially addressed in the administrative proceeding. The decision is consistent with basically all prior attempts to pursue a civil lawsuit against an administrative agency during the pendancy of an administrative action. We initially added the Board to our lawsuit against the San Francisco City Attorney before the Board filed charges against Dr. Stoller, but once it filed the administrative case, the “failure to exhaust administrative remedies” doctrine applied, according to the court and precedent.

In addition, the courts are not anxious to become involved in the vaccine and medical exemption issue, unless there is no choice, and in this case, the court had a choice.

We do not intend to appeal the decision, and will focus on the upcoming board administrative case. Stay tuned for an announcement about that case.

Although it would have been nice and interesting to be able to pursue a civil case against the Board, we did originally file this case to stop the San Francisco City Attorney’s office from obtaining Dr. Stoller’s medical records of the patients for whom he wrote medical exemptions. So while the case is over, the medical records were never turned over to the City and the patients’ privacy rights were protected. That is plenty good in these difficult times.

Rick Jaffe, Esq.

November 21, 2019 Update on the Stoller Civil Lawsuit against the Medical Board

November 21, 2019 Update on the Stoller Civil Lawsuit against the Medical Board

Here is the most recent update on Ken Stoller’s civil lawsuit against the Medical Board (formerly against the San Francisco City Attorney).

Here is our response to the Board’s dismissal motion.


Wish us luck!

Rick Jaffe, Esq.

Into the roots of the weeds of quarantine and isolation in Los Angeles

Into the roots of the weeds of quarantine and isolation in Los Angeles

My prior post suggesting that people should calm down about AB 262 because the law does not directly affect the public might have been too subtle or maybe just too abstract. I indicated that what the state and county can do to people during public health crises is determined by other state and country laws and regulations, not AB 262. But again, that might have been too abstract. So let’s get into the roots of the weeds, so you can read with your own eyes what, when and how a large county public health office can deal with a communicable disease based public health crises.

Here is the Los Angeles Communicable Disease Control Measure, Part 1 which sets out, among other things, the circumstances the country health department can quarantine and isolate people based on having or being exposed to certain communicable diseases.

It’s a long document, but you should take a quick look just to see what are the reporting requirements for which diseases and so forth. But for the lazy, the ADD or if you’re just pressed for time, here is what and when LA Country Quarantines:

“SECTION 14: QUARANTINE (CCR, Title 17, Sections 2514, 2520; Health and Safety Code, Section 120175) A. DEFINITION: “Quarantine” is defined as the limitation of freedom of movement of persons or animals that have been exposed to a communicable disease for a period of time equal to the longest usual incubation period of the disease, in such manner as to prevent effective contact with those not so exposed. Contacts to cases with reportable communicable diseases may be subject to quarantine at the discretion of the SPA Medical Director. Quarantine shall be used routinely only for the diseases or circumstances listed in this section. The SPA Medical Director shall determine which contacts require quarantine, specify the place of quaran-tine, and issue appropriate instructions. B. Violations of quarantine or “pass” privileges must be reported immediately to the Chiefs of ACDC and Public Health Investigation. C. Contacts to cases of communicable diseases may be quarantined according to one of the following classifications. 1. COMPLETE QUARANTINE: This is defined as the confinement of persons or domestic animals exposed to a communicable disease for a period equal to the longest usual incubation period of the disease, in a manner that shall prevent contact with unexposed persons. Complete quarantine is required for contacts of persons with the following diseases. Viral hemorrhagic fever (e.g., Lassa, Ebola, Marburg, Crimean-Congo, etc.) Plague (until contacts, clothing, etc. have been disinfested and prophylactic medication administered) Relapsing fever, louse-borne (until disinfested) Typhus, louse borne (until disinfested) Control Measures for Complete Quarantine: a. Post the QUARANTINE PLACARD (H-734) at the site of quarantine. b. No passes shall be issued to a contact while a case patient with the disease in question is on the premises.c. The SPA Medical Director shall arrange for the daily observation of contacts, delivery of groceries, and other necessities and shall supervise the release of contacts from quarantine. d. When a case patient is off the quarantine premises, the procedures listed in Part IV for each disease shall be followed.”

Here is when a modified quarantine is initiated:

“2. MODIFIED QUARANTINE (CCR, Title 17, Section 2518): This is defined as a selective or partial confinement of persons or domestic animals that were exposed to a communicable disease, based on differences in susceptibility and potential for disease transmission. Modified quarantine is required for the following diseases and situations: Animal rabies, for an animal that has bitten a person in an unprovoked attack, and for a domestic animal bitten by a wild mammal capable of transmitting rabies. Post ANIMAL QUARANTINE PLACARD (H-733). Diarrhea in newborns (hospital nurseries only). Diphtheria. Post DIPHTHERIA QUARANTINE PLACARD (H-734). Staphylococcal disease (hospital outbreak only). 3. Release from complete or modified quarantine: To release from quarantine, follow procedures in Part IV foreach specific disease. 4. Dairy quarantine (CCR, Title 17, Sections 2528, 2530) a. A dairy quarantine is imposed when: a milk supply is suspected as the source of a communicable agent; or when a person who resides at a dairy has or is suspected of having a disease transmissible through milk.b. The County Health Officer, as an agent for the U.S. Department of Agriculture, shall prohibit the sale, use, or disposal of milk until the following measures are observed: The patient must be isolated. Water used in processing milk must be free of the agent. Household members must be free of infection and must not expose dairy workers or facilities used in processing milk. c. The milk must be pasteurized off the premises until (a) the patient is removed and the household contacts are cleared according to specific disease requirements; and (b) the producing herd is declared free of infection by the U.S. Department of Food and Agriculture.”

Here is when LA County isolates people:

“SECTION 15: ISOLATION PRECAUTIONS (CCR, Title 17, Sections 2515, 2516, 2518, 2530) A. DEFINITION: “Isolation” is defined as the separation of infected persons from other persons for the period of communicability of an agent, in such places and under such conditions that will prevent further transmission of the agent. Isolation may be strict or modified.Isolation measures depend on the mode of transmission of the disease and the potential threat to susceptible persons. See recommendations for each disease in Part IV. Modified isolation precautions may include: 1. Exclusion from school.
Exclusion from work in general or specific kinds of work (e.g., a cook with chronic typhoid infection) or exclusion from contact with specific populations (e.g., a daycare attendant with shigellosis). 3. Exclusion to avoid exposing pregnant women to communicable diseases with known risk to fetus (e.g., rubella, chicken pox). 4. Standard infection control precautions. 5. Abstinence from sexual contact, or proper use of protective measures during sex. B. Typhoid Fever Carrier Isolation 1. The SPA Medical Director shall issue specific written orders to the patient or contact who must comply. 2. The SPA Medical Director shall issue the TYPHOID CARRIER AGREEMENT (CDPH 8563, DHS 8563)(English, Spanish) to convalescent and chronic carriers. C. Isolation in Skilled Nursing Facilities 1. Patients with certain communicable diseases should not remain in skilled nursing facilities (SNFs).2. Asymptomatic carriers, e.g., typhoid carriers, are not permitted in SNFs unless prior written approval is obtained from the Chief, ACDC. D. Special Isolation Precautions A patient with a communicable disease may be confined to his home, a hospital, sanitarium, jail facility or other specified location. Cooperative patients may be voluntarily isolated at home or in a hospital. An ORDER OF ISOLATION (H-475) served by Public Health Investigation may be necessary for uncooperative patients. SECTION 16: OTHER RESTRICTIONS ON PERSONS OR ANIMALS A. Personal Surveillance (CCR, Title 17, Section 2522) 1. Observation as used in this manual, refers to the frequent check upon the person under observation in order to promptly recognize signs and symptoms of illness without restricting their movements. It does not mean the isolation or quarantine of the individual. 2. Diseases requiring personal observation (see Part IV for duration of surveillance for each disease): Yellow fever Cholera Smallpox Plague (after disinfestation and prophylactic medications are administered) B. Animal Restrictions for Diseases Other Than Rabies: For specific details concerning animal restrictions, consult with DPH Veterinary Public Health Program. 1. The possession of skunks and any mammal related to ferrets, weasels, and minks are illegal in California (CCR, Title 17, Section 2606.8; Fish and Game Code, section 2118[b], respectively). Such animals are a menace to public health and safety. 2. MUSSEL QUARANTINE: A seasonal quarantine from May 1 to October 31 prohibits the taking, sale or the offering for sale of all species of mussels from the ocean shore of California, except for use as bait. Mussels that are used as bait shall be broken at the time of taking or prior to sale. This quarantine applies to sport harvesting only; commercially harvested shellfish are regulated by other means.

For bird owners, here’s what you have to worry about:

“BIRD QUARANTINE: Birds having, or suspected of having, a disease transmissible to human shall be quarantined and placed on medicated feed for 45 days (California Code of Regulations Title 17, Section 2603).4. TURTLE RESTRICTIONS: It is unlawful to sell, offer for sale, or distribute to the public any live turtles with a carapace less than four inches in length (California Code of Regulations, Title 17, Section 2612.1).”

Here is how a quarantine and isolation are effectuated:

“SECTION 17: QUARANTINE AND ISOLATION PLACARDS A. Neither quarantine nor isolation is established legally until a placard is posted and/or written instructions are given to the patient or contact. B. When a residence is quarantined, the SPA Medical Director or designee shall attach a placard(s) at the front or principal entrance. Placards must identify the disease, name of the SPA Medical Director, signature of the deputy posting the placard, date of posting, and the address and telephone number of the district health center. C. The individual who establishes a quarantine or isolation by placard or issues passes shall report the details to the Chiefs of ACDC and Public Health Investigation. D. All correspondence with other health departments which concerns violations of quarantine or legal orders of isolation is handled by the Chief of Public Health Investigation.”

Here is how a quarantine/isolation ends:

“SECTION 19: RELEASE FROM ISOLATION OR QUARANTINE (CCR, Title 17, Section 2534) A. A Public Health Laboratory that is approved by the State Department of Health Services must perform laboratory tests that are required for release from quarantine or isolation. In Los Angeles County, laboratories of the County of Los Angeles Department of Public Health, the City of Pasadena Health Department, and the City of Long Beach Health Department are approved as such. B. The NOTICE OF RELEASE TO RETURN TO WORK (H-1066) shall be issued by the SPA Medical Director, a designee, or Public Health Investigation.C. The Chief of Public Health Investigation shall terminate an order of isolation in writing.”

I hope this helps put AB 262 in context.

Rick Jaffe, Esq.

Everyone should calm down about Cali. AB 262

Everyone should calm down about Cali. AB 262

On October 19, the Governor signed AB 262 which deals with the responsibility of local health officials during a public health crisis due to a communicable disease.

Here is the text of the new law:

Many parents have expressed concern if not downright fear that their pets will be removed, or that quarantines will be imposed. I do not think the bill will significantly change things. However, the concern is understandable in light of the on-going negative PR campaign against the vaccine concerned and the bill’s timing; It was introduced and passed during the same session as SB276/714.

Here is the bill summary:

“Existing law requires the State Department of Public Health to examine into the causes of communicable disease in man and domestic animals occurring or likely to occur in this state, and to establish a list of reportable diseases and conditions. Existing law requires a health officer knowing or having reason to believe that any case of the diseases made reportable by regulation of the department, or any other contagious, infectious or communicable disease exists, or has recently existed, within the territory under the local health officer’s jurisdiction, to take measures to prevent the spread of the disease or occurrence of additional cases.
This bill would require a local health officer, during an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, to notify and update governmental entities within the health officer’s jurisdiction about certain communicable diseases that may affect them, if, in the opinion of the local health officer, action or inaction on the part of the governmental entity might affect outbreak response efforts. The bill would require the local health officer to make any relevant information available to those governmental entities, as specified, and would require both the local health officer and the governmental entities to comply with applicable state and federal privacy laws with regard to information that the health officer provides to the governmental entities. The bill would authorize the local health officer to issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.
By imposing new requirements on local health officers, this bill would create a state-mandated local program.”

So, what does it mean for the vaccine concerned?

The first thing I would say is that I do not see the new law as creating any new powers of local public health officials over the public. What the state and local governments can do in terms of responses to public health crises is set out in state and local health laws. Prior to AB 262, public health authorities had significant powers to deal with public health crises involving humans and animals in certain defined public health communicable disease outbreaks. I do not see AB 262 as directly expanding the powers of the local governments over the public.

There are two operative parts to the bill. The first is innocuous, the second might not be, and might in some cases indirectly affect the public. Let’s take a look at the specifics:

The bill imposes a reporting requirement on local health departments to report outbreaks or imminent outbreaks, and specifically:
“(1) Promptly notify and update governmental entities within the local health officer’s jurisdiction about communicable diseases listed in Section 2500 of Title 17 of the California Code of Regulations that may affect them, if, in the opinion of the local health officer, action or inaction on the part of the governmental entity might affect outbreak response efforts.”
(2) Make any relevant information available to governmental entities, including, but not limited to, the locations of concentrations of cases, the number of residents affected, and the measures that the governmental entities should take to assist with outbreak response efforts.”

I do not see any problem with this. Disseminating information about communicable diseases is not a bad thing (in and of itself).

Here is the second thing:

“(b) In addition to the actions required under subdivision (a), the local health officer may issue orders to other governmental entities within the local health officer’s jurisdiction to take any action the local health officer deems necessary to control the spread of the communicable disease.”

I read this part as saying that the local public health department runs the show in terms of a local health response to a public health crisis based on a communicable disease.

Isn’t the language that the local health official can “take any action” *** [he/she] deems necessary to control the spread of the communicable disease” horrible?

I don’t think so. I read this in the context of the public health laws which set out the responses and powers of the public health departments during public health crises. So again, I do not see this bill as expanding the powers of the public health department over the public. Rather, it sets out the chain of command, and puts the public health official as the decision maker over all other local officials.

Some context

All of you are understandably focused on vaccines and what public health officials can do to your unvaccinated children. However, the public health department’s mandate is much broader than that and includes protecting the public from non-vaccinatable fatal human disease like anthrax and Ebola which actually could create a public health crisis. Regardless of how much personal freedom you might think you are entitled to, no one has the right to be the next Typhoid Mary, and spread a fatal communicable disease, and no court will ever create/uphold such a right. Admittedly, that begs the question about what could happen in a measles epidemic, like the recent one in New York.

Under what conditions can the public health department issue public health orders to local officials?

The somewhat vague answer is in the beginning of the new law:

“(a) During an outbreak of a communicable disease, or upon the imminent and proximate threat of a communicable disease outbreak or epidemic that threatens the public’s health, a local health officer shall do both of the following:” [the two provisions are discussed above]

Obviously, the concern is what is an imminent and proximate threat of a communicable disease outbreak or epidemic.” How many cases? That’s a good question, but I don’t know the answer.

What about your pets?

Some public health crises involve animals, especially those in the food supply, and the public health departments have the authority to issue orders relating thereto. However, I don’t see the public health department going after your dog or cat in a measles outbreak.

The Big Question: What can the local public health department do to you under AB 262 if there is a measles “public health crisis”?

My answer: the same thing it could do to you under the old law, (except that the new law clarifies the chain of command), so no sense worrying about the new law.

Rick Jaffe, Esq.

“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!

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.”

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.

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.