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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.

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:

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