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Category: Vaccination Issues

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

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

Comments 6 comments

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

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

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

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

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

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

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

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

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

And so it begins.

Rick Jaffe, Esq.

Some Small Slivers of Good News in the New California Medical Vaccine Exemption Law

Some Small Slivers of Good News in the New California Medical Vaccine Exemption Law

Comments 19 comments

The big one is that like others who have poured over the law, I didn’t see a CAIR medical vaccine exemption submission/reporting requirement in the final SB 714 amended bill for grandfathered pre-2020 exemptions. I do not assume that was intentional. For reasons I hope most will understand, that’s all I am going to say about this issue. My advice to you is follow the law as it is written in the final version.

Second, some people have read 120370 (a)(3) as meaning that all grandfathered exemptions expire after July 1, 2021. I do not think that is correct.

Here is the language:

“(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

This subpart (3) is part of subsection (a) of 120370. Subpart (2),(right above it in subsection (a)) establishes the grandfathering. So, the “Except as provided in this subsection language” creates an exception to the three subsequently listed alternative vaccine related requirements for school entry after July 1, 2021.

Here they are together (without the grade span definition in (2):

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
***
(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

What about medical exemptions written after January 1, 2020 but before the full implementation of 120372 in 2021?

The good news is that those exemptions are via a physician’s letter, rather by the form, at least until the form and database is set up, (and the law just relates the January 1, 2021 deadline of setting up the form). The bad news is that they are not grandfathered, because the end of the grandfathering period is December 31, 2019, meaning that exemptions up until that date can be grandfathered, and are not after that date. Practically, that means that doctor letter exemptions written in calendar year 2020 could at best only be good until June 30, 2021, and I suspect they won’t be considered valid that long.

I think it would be foolish for a doctor to write a medical exemption that does not comply with strict CDC, AAP, ACIP guidelines in that transition year (and I don’t mean to imply that it wouldn’t be foolish to do so in the remaining part of the grandfathering period as well).

What about moving schools and private schools where contracts are renewed every year? Are the grandfathered exemptions still valid?

Caveat: All I can do is read a statute and tell you what I think the statute means. You can call it an interpretation. On some, but not all statutes, there might be ambiguity resulting in different reasonable interpretations. But that is different from reading something into a statute which is not in the language of the law. Even that is permissible, if, for example, it is obvious something is left-out or assumes some fact or event, or the statute on its face makes no sense. But that’s different from trying to inject something into the statutory language which is not in the statute to support some objective not implemented by the text.
And that is completely different from an implementer of a statute not following the statute, which is why there are court cases against governmental entities.

That all being said, here is the grandfathering subpart again with the relevant definition:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
For purposes of this subdivision, “grade span” means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

On its face, subpart (2) applies to private schools. “Grade span” is what is called a “defined term” meaning it has and only has the meaning it is given in the document.

There is nothing in this grandfathering subpart which limits the exemption to the original school in which is was filed, or excludes private schools.

Private schools are expressly incorporated into this grandfathering section. In my view, using the fact that private schools have annual contracts as a basis to reject a valid grandfathered exemption would be an obvious incorrect interpretation of the statute. The legislature could have, but did not impose any limitation or qualification to valid grandfathered exemptions for private schools. To read one into the statute would be an incorrect statutory analysis and even in the crazy politicized world of vaccines, I have to believe that the courts would reject it.

So, unless someone can point to some other section which modifies 120370(a)(2), I would say that changing schools does not change the status of the valid grandfathered exemption, and it applies to private schools under the statute, period. Whether a school official takes a position which not consistent with the statute on the hope and expectation that the parent will not do anything about it, is another question entirely. And I wouldn’t bet my last dollar that won’t happen, given that it is was illegally happening under SB 277.

More as needed.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Now That SB 276 And SB 714 Are Law, What Does It All Mean For Parents?

Now That SB 276 And SB 714 Are Law, What Does It All Mean For Parents?

Comments 28 comments

I have received many emails and calls from parents requesting advice about how the new law applies to their children. Sorry, I don’t do medical exemption consultations for particular cases, but I can try to explain what the law says and means.

The California Health and Safety Code Section which was changed by SB 277 a few years back, and changed yesterday by SB 276 and SB 714 is Section 120370 (SB 276 and SB 714 made changes to several other sections as well, but 120370 is one of the two big ones, and I will discuss both of them.)

SB 276 and SB 714 were passed together, but SB 714 modified SB 276, which means that the new legal version of 120370 incorporates the changes made by SB 714 to SB 276

Here is the new version of Health and Safety Code, Section 120370

SECTION 1.
Section 120370 of the Health and Safety Code
“(a) (1) Prior to January 1, 2021, if the parent or guardian files with the governing authority a written statement by a licensed physician and surgeon to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which the physician and surgeon does not recommend immunization, that child shall be exempt from the requirements of this chapter, except for Section 120380, and exempt from Sections 120400, 120405, 120410, and 120415 to the extent indicated by the physician and surgeon’s statement.”

This subsection basically creates a time demarcation line. Prior to January 1, 2021, meaning from today until December 31, 2020, medical exemptions technically are going to be handled the way there were last week, prior to SBs 276 and 714, which is to say that the physician writes a letter containing the basic information about the exemption set forth in this statute.

What happens on and after January 1, 2021 is set out in Section 120372, the other big section on vaccine exemptions, which I will discuss shortly.

Section 120370 has two other important parts: Here they are:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
For purposes of this subdivision, “grade span” means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

This is the so-called grandfathering provision which Governor Newsom required, and because it was too late to amend SB 276, it was put in the quickie SB 714.

This section appears to grandfather families who currently have medical exemptions to keep their exemptions until the child enters the “next grade span.”
So, if for example, your child is in second grade on January 2, 2020, then theoretically under this subsection, the exemption should be good until your child enters the 7th grade. However, if your child is in the 6th grade on January 2, 2020, the exemption would only be good for the 6th grade because in the fall 2020, your child will be enrolling in the next grade span and exemptions are only good for the child’s current grade span.

Obviously, parents with kids in the beginning or middle of grade spans will be less unhappy about the new law than parents whose kids are in the last year of the grade span as of summer 2020.

The next part of 120370 is subsection (3). Here it is:

“(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

I read this as saying that starting after July 1, 2021, a child either has to be immunized, have a medical exemption compliant with the new law, or be grandfathered exempt in the child’s grade span.

There is one more part to 120370, dealing with exposure to diseases:

“(b) If there is good cause to believe that a child has been exposed to a disease listed in subdivision (b) of Section 120335 and the child’s documentary proof of immunization status does not show proof of immunization against that disease, that child may be temporarily excluded from the school or institution until the local health officer is satisfied that the child is no longer at risk of developing or transmitting the disease.”
Basically, a school can keep unvaccinated kids out of school if it thinks the child has been exposed to a disease for which there is a vaccine.”

And that is all there is to the new Section 120370.

Next is Section 120372. There are 10 subsections, but only the first few are important for families.

Subsection (a) creates the requirement that the CDPH create a vaccine exemption form, which form will be the only way to get a vaccine medical exemption after January 1, 2021. The form gets filed with CAIR (which most families don’t like) and submitted to the school. Subsection (a) sets out the (minimum) information required to be included in the form. Of note, this subsection states that a doctor can’t charge for filing out the form nor for doing an examination for a temporary medical exemption.

The other major part of subsection (a) is that medical exemptions are not valid beyond the child’s current grade span. (a)(2)(G).

Here is 120372 (a)

“(a) (1) By January 1, 2021, the department shall develop and make available for use by licensed physicians and surgeons an electronic, standardized, statewide medical exemption certification form that shall be transmitted directly to the department’s California Immunization Registry (CAIR) established pursuant to Section 120440. Pursuant to Section 120375, the form shall be printed, signed, and submitted directly to the school or institution at which the child will attend, submitted directly to the governing authority of the school or institution, or submitted to that governing authority through the CAIR where applicable. Notwithstanding Section 120370, commencing January 1, 2021, the standardized form shall be the only documentation of a medical exemption that the governing authority may accept.
(2) At a minimum, the form shall require all of the following information:
(A) The name, California medical license number, business address, and telephone number of the physician and surgeon who issued the medical exemption, and of the primary care physician of the child, if different from the physician and surgeon who issued the medical exemption.
(B) The name of the child for whom the exemption is sought, the name and address of the child’s parent or guardian, and the name and address of the child’s school or other institution.
(C) A statement certifying that the physician and surgeon has conducted a physical examination and evaluation of the child consistent with the relevant standard of care and complied with all applicable requirements of this section.
(D) Whether the physician and surgeon who issued the medical exemption is the child’s primary care physician. If the issuing physician and surgeon is not the child’s primary care physician, the issuing physician and surgeon shall also provide an explanation as to why the issuing physician and not the primary care physician is filling out the medical exemption form.
(E) How long the physician and surgeon has been treating the child.
(F) A description of the medical basis for which the exemption for each individual immunization is sought. Each specific immunization shall be listed separately and space on the form shall be provided to allow for the inclusion of descriptive information for each immunization for which the exemption is sought.
(G) Whether the medical exemption is permanent or temporary, including the date upon which a temporary medical exemption will expire. A temporary exemption shall not exceed one year. All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.
(H) An authorization for the department to contact the issuing physician and surgeon for purposes of this section and for the release of records related to the medical exemption to the department, the Medical Board of California, and the Osteopathic Medical Board of California.
(I) A certification by the issuing physician and surgeon that the statements and information contained in the form are true, accurate, and complete.
(3) An issuing physician and surgeon shall not charge for either of the following:
(A) Filling out a medical exemption form pursuant to this section.
(B) A physical examination related to the renewal of a temporary medical exemption.”

Subsection (b) is straightforward and innocuous:

“(b) Commencing January 1, 2021, if a parent or guardian requests a licensed physician and surgeon to submit a medical exemption for the parent’s or guardian’s child, the physician and surgeon shall inform the parent or guardian of the requirements of this section. If the parent or guardian consents, the physician and surgeon shall examine the child and submit a completed medical exemption certification form to the department. A medical exemption certification form may be submitted to the department at any time.”

Subsection (c) is the part which sets up the database, which people fearful of big brother won’t like.

“(c) By January 1, 2021, the department shall create a standardized system to monitor immunization levels in schools and institutions as specified in Sections 120375 and 120440, and to monitor patterns of unusually high exemption form submissions by a particular physician and surgeon.

Subsection (d) is the main operative part which should scare the Bejesus out of any doctor even considering trying to write medical exemptions under the new form and law.

The big ones are that many exemptions will be monitored by the department of public health i.e. schools under 95% immunization rates, docs who write more than 5 exemptions per year, and schools which don’t report vaccination rates. (d)(2)(A)-(C).

Here it is:

“(d) (1) The department, at a minimum, shall annually review immunization reports from all schools and institutions in order to identify medical exemption forms submitted to the department and under this section that will be subject to paragraph (2).
(2) A clinically trained immunization department staff member, who is either a physician and surgeon or a registered nurse, shall review all medical exemptions from any of the following:
(A) Schools or institutions subject to Section 120375 with an overall immunization rate of less than 95 percent.
(B) Physicians and surgeons who have submitted five or more medical exemptions in a calendar year beginning January 1, 2020.
(C) Schools or institutions subject to Section 120375 that do not provide reports of vaccination rates to the department.”

I am going to go out of order now, because the reality is that vaccine exemption examiners can review any exemption they want, irrespective of the school’s immunization rate, school reporting status or how exemptions a doctor writes because of “(9) Notwithstanding any other provision of this section, a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

Translation: they are going to examine every single exemption of any doctor who routinely writes medical exemptions and is not a pediatric oncologist or ID physician.

Next is (3)(A)-(C) and that is even worse. This gives the health department the right to review and reject (or accept, yea right) any medical exemption issued under this section 120372.

Here it is:

“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.
(B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.
(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.”

Section (4) is what I refer to as the Bob Sears payback rule, and it most likely means less than what appears at first blush.

Here it is:

“(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.

That would good news except that all or most of the exemption writing physicians are currently under board investigation for writing exemptions, and below I’ll discuss a provision which allows the department not to accept exemptions written by Bob Sears and other like-minded doctors. Operatively, all exemptions by the handful of physicians writing broader than CDC contraindications will be reviewed and revoked, in my opinion.

Sub paragraphs (5) and (6) set up the appeals process for exemption revocation and is straightforward. Don’t expect the appeal overturn any exemption revocations.

Here is the appeals process.

“(5) The department shall notify the parent or guardian, issuing physician and surgeon, the school or institution, and the local public health officer with jurisdiction over the school or institution of a denial or revocation under this subdivision.
(6) If a medical exemption is revoked pursuant to this subdivision, the child shall continue in attendance. However, within 30 calendar days of the revocation, the child shall commence the immunization schedule required for conditional admittance under Chapter 4 (commencing with Section 6000) of Division 1 of Title 17 of the California Code of Regulations in order to remain in attendance, unless an appeal is filed pursuant to Section 120372.05 within that 30-day time period, in which case the child shall continue in attendance and shall not be required to otherwise comply with immunization requirements unless and until the revocation is upheld on appeal.”

Subparagraph 7 adds to the disincentive not to write exemptions because the health department can determine that a physician is a danger to public health and if so, it will 1. report the physician to the Medical Board and 2. simply not accept any exemption from that particular physician. I assume there is no appeal available to the family in this case since the exemption has not been filed and revoked. Rather it was not accepted by virtue of the doctor being red-flagged.

In addition to red flagging a doctor who is dangerous, this sub (7) also provides that exemptions are not accepted from physicians who have been accused of professional misconduct, or are on probation.

Here is (7):

“(7) (A) If the department determines that a physician’s and surgeon’s practice is contributing to a public health risk in one or more communities, the department shall report the physician and surgeon to the Medical Board of California or the Osteopathic Medical Board of California, as appropriate. The department shall not accept a medical exemption form from the physician and surgeon until the physician and surgeon demonstrates to the department that the public health risk no longer exists, but in no event shall the physician and surgeon be barred from submitting these forms for less than two years.
(B) If there is a pending accusation against a physician and surgeon with the Medical Board of California or the Osteopathic Medical Board of California relating to immunization standards of care, the department shall not accept a medical exemption form from the physician and surgeon unless and until the accusation is resolved in favor of the physician and surgeon.
(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

To make sure physicians get the message, the department notifies the medical board of any doctor who has written more than 5 exemptions in a year.

Here it is:

“(8) The department shall notify the Medical Board of California or the Osteopathic Medical Board of California, as appropriate, of any physician and surgeon who has five or more medical exemption forms in a calendar year that are revoked pursuant to this subdivision.”

We’ve already talked about (9) which gives an exemption examiner the right to review any vaccine medical exemption. Here it is again.
“(9) Notwithstanding any other provision of this section, a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

The other parts of 120372 are mostly ministerial or deal with privacy issues, and is straightforward. Here they are:

“(e) The department, the Medical Board of California, and the Osteopathic Medical Board of California shall enter into a memorandum of understanding or similar agreement to ensure compliance with the requirements of this section.
(f) In administering this section, the department and the independent expert review panel created pursuant to Section 120372.05 shall comply with all applicable state and federal privacy and confidentiality laws. The department may disclose information submitted in the medical exemption form in accordance with Section 120440, and may disclose information submitted pursuant to this chapter to the independent expert review panel for the purpose of evaluating appeals.
(g) The department shall establish the process and guidelines for review of medical exemptions pursuant to this section. The department shall communicate the process to providers and post this information on the department’s website.
(h) If the department or the California Health and Human Services Agency determines that contracts are required to implement or administer this section, the department may award these contracts on a single-source or sole-source basis. The contracts are not subject to Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code, or Sections 4800 to 5180, inclusive, of the State Administrative Manual as they relate to approval of information technology projects or approval of increases in the duration or costs of information technology projects.
(i) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer this section through provider bulletins, or similar instructions, without taking regulatory action.
(j) For purposes of administering this section, the department and the California Health and Human Services Agency appeals process shall be exempt from the rulemaking and administrative adjudication provisions in the Administrative Procedure Act Chapter 3.5 (commencing with Section 11340), and Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with 11400), and Chapter 5 (commencing with Section 11500) of, Part 1 of Division 3 of Title 2 of the Government Code.”

So, what’s the Bottom line?

Theoretically, all current vaccine exemptions holders should be good to go to school for the entire fall 2019-2020 school year. For those students going to another grade span in the fall 2020, they are out of luck in terms of being vaccine exempt, or so I see it.

I have concerns about whether all schools will follow the law and the grandfathering, based on what I have been seeing before SB 276 and SB 714 became the law yesterday. We will see how this evolves.

I may write something about some of the other aspects of the new law, but this should lay out and explain the basics in the two primary provisions.

As stated, some of you will be less unhappy and will have more time to figure things out than others. Hope this helps. Again, and sorry, but I don’t do family consultations about vaccine exemption status, alternative plans or why a family’s case is exceptional. (they all are!)

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Major Update on Ken Stoller’s Lawsuit: New Amended Complaint Brings in Department of Public Health for Privacy Violations and Other Alleged Improper Actions

Major Update on Ken Stoller’s Lawsuit: New Amended Complaint Brings in Department of Public Health for Privacy Violations and Other Alleged Improper Actions

Comments 4 comments

Based on documents received in response to a public records requests, we are seeking to bring into the lawsuit Robert Schechter MD, who is the Chief of the Clinical Policy and Support Section of the Department of Health’s immunization branch. The documents reveal that his department is receiving privacy protected medical exemption information, and is providing legal/medical advice to schools about the validity of medical exemptions. The new complaint traces these actions back to a pilot program initiated by the Santa Barbara Health Department in 2016.

The new complaint also seeks to stop the Medical Board’s new illegal tactic of trying to confuse and intimidate parents of medically vaccine exempt children into releasing their children’s medical records. I have written about that tactic recently.

Here is that post:
https://rickjaffeesq.com/2019/07/31/no-you-were-not-just-subpoenaed-by-the-california-medical-board/

Here is a copy or our (proposed) Second Amended Complaint which has been submitted for filing to the clerk’s office.
SAC992019

This case has a somewhat unique procedural posture: all of the original (San Francisco) defendants have been dismissed from the case, because the San Francisco City Attorney agreed to withdraw his subpoena against Dr. Stoller. That might mean we can serve and file our new complaint without court permission, or we may need court permission. To be safe, we are doing both. But at least you can see the new complaint which are will be asking the court to allow us to file, based on information developed after we filed the First Amended Complaint on July 15th.

The new complaint still seeks a judicial determination that California families have a constitution right to obtain a medical exemption beyond CDC contraindications, whether or not SB 276 becomes law.

The Defendants are seeking to dismiss the prior complaint (the First Amended Complaint). The hearing on that motion is presently scheduled for September 20th, but we think that dismissal motion (called a “demurrer”) may be functionally moot because of our new (proposed) complaint.

Stay Tuned!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

UPDATED: Senator Pan’s New Amendment to Change SB 276 (after it passes)

UPDATED: Senator Pan’s New Amendment to Change SB 276 (after it passes)

Comments 2 comments

I am not a California legislative expert and I am not sure what is going on, but today, I received an automated notice as a SB 276 bill watcher of an amendment. Originally I thought that Senator Pan blinked and made the changes requested by the Governor. But then I am not sure what changes the Governor wanted. So I am doubly unsure.

The amended bill has a different bill number, SB 714, and it says it will only go into effect if SB 276 is enacted. So I am guessing this it is stand alone change to SB 276, and is probably intended to allay the concerns of those folks Senator Pan has to listen to, without changing SB 276 which is on the Governor’s desk and probably can’t practically be amended at this point.

However, what I am clear about is that whatever this SB 714 amendment is, it does not resolve the vaccine concerned’s issues, and does not help the families of vaccine injured children who do not want to risk further damage to their vaccine injured child or risk the health and well-being of their other children.

Here is a link to this, whatever it is (and it is now clear that it is a companion bill representing the agreement between the the Governor and Senator Pan).

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB714

Here are the big changes that I see in my first pass at this thing.

1. All Current Vaccine medical exemptions will accepted up until they are not, meaning until the exemption is revoked, and almost all will be.

Here is the amended language:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.”

“grade span is defined below:

2. All medical exemptions are only good for a “grade span” which “means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive..”

There is no such thing as a permanent medical exemption

Here is the language:

“All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.”

3. The penalty of perjury part of the physician’s certification has been removed.
Here is the language:

“A certification by the issuing physician and surgeon, under penalty of perjury, surgeon that the statements and information contained in the form are true, accurate, and complete.”

Here is the big one:

“(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.”

“has been subject to disciplinary action” probably means that the physician has been sanctioned or disciplined by the Board, as opposed to just being the Respondent (defendant) in a Board disciplinary action/proceeding. If so, the exemptions of Bob Sears can be revoked since he has been sanctioned by the Board, but the exemptions of Ken Stoller cannot (yet) because while he is the subject of a current disciplinary proceeding, no disciplinary action has been taken against him. But honestly, I am not sure about that.

Are the medical exemptions written by the disciplined/sanctioned doctors automatically revoked? NO

“(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.”

So an exemption written by a disciplined doctor still has to go through the SB 276 review process before it is revoked. My view is that almost every single medical exemption written by a disciplined physician using broader than CDC contraindications will be revoked.

That means if you have a medical exemption and the writer has been disciplined (or possibly the subject of a disciplinary action), it will most likely be revoked, but it is unclear when. My guess is that there will be some very quick process, because the appeal is just a procedural fig leap to create the illusion of due process.

4. Here is part two of the Bob Sears payback rule:

“(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

So Bob Sears and any other physician who gets probation as a board sanction is out of the medical exemption writing business. I am assuming this provision only applies to post January 2020 exemptions and not exemptions written prior thereto, which under (2) above appear to be valid for the first half of calendar year 2020. But then, you never know with these jokers.

So what’s the bottom line?

Currently, medically vaccine exempt will technically continue to be vaccine exempt until the (i) the physician who wrote the exemption is under a board disciplinary order and whoever reviews exemptions decides that it is not consistent with applicable standards (CDC, APA, AAFP, ACIP) and if appealed, the appeal affirms the revocation (and pretty much all revocation appeals will be affirmed).

When will that happen? Who knows, but that is what is coming so plan accordingly.

This is a typical Pan move. Make it look like he’s giving something up to placate the powers he needs to placate, but in reality, he’s turning the thumb screws another full turn on the vaccine concerned/vaccine injured families.

Governor Newsom: If you’re listening, don’t be fooled by this bill/amendment. It does nothing to protect the vaccine injured families. Please reconsider your support for this bill.

And by the way, the community thinks that home schoolers are Senator Pan’s next target.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

My Second Take on Senator Pan’s SB 714 and I May Even Be More Confused

My Second Take on Senator Pan’s SB 714 and I May Even Be More Confused

Comments 6 comments

It was pointed out that the language in (2) does not require vaccination by the Fall 2020 as I perhaps misstated in my prior post. I think they are right and I was wrong, mostly, but frankly, I am still not sure. Let’s start with the language:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
For purposes of this subdivision, “grade span” means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

That seems to suggest that families with current exemptions will be able to send their kids to school after January 1, 2020, as long as they are in the same “grade span,” and that would be better than I had originally thought and wrote.

I am not exactly sure what (3) applies to: Here it is:
“(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

But here the change which makes me unsure about the additional time families appear to have under (2):

“(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.

(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.”

So what happens to exemptions which are written by disciplined physicians which are found to be inappropriate? The exemption is revoked obviously. Under SB 276, the revocation is, in effect, stayed pending appeal, if the there is an appeal filed within 30 days. No one knows yet (or no one is saying) how long the appeals process could take. That’s an unknown. But if the appeal is rejected, the revocation is affirmed, then the revocation becomes effective and the family no longer has an exemption, such that the grade span time referenced in (2) doesn’t matter. Meaning, the child will need to be vaccinated.

And of course, that’s assuming the schools will be following the rules. That’s a big assumption considering the fact that schools are now rejecting exemptions even though there is no legal mechanism to do so under current law, so long as the exemptions are written by a California licensed physician, who recites the required statutory language. (I’m working on that problem as we speak, and you will hear about that next week!)

So, I am pretty sure I was incorrect in saying that under the language of SB 714, parents had until the fall 2020 to get their kids vaccinated.

However, I do think that if SB 276 passes, the schools will continue rejecting vaccine medical exemptions for seemingly healthy kids, where the exemptions were written by the high profile physicians, all or most of who are under Board investigation. I think that the enactment of SB 276 (if it happens) and legislative process of 714 will act as an accelerant to that process of schools acting in ways not consistent with law, unless they get some kind of legal rebuke.

Clearer now? (probably not).

Rick Jaffe, Esq.
Rickjaffeesquire@gmail.com

Updated: Senator Pan’s New Bill to Change SB 276 (after it passes)

Updated: Senator Pan’s New Bill to Change SB 276 (after it passes)

Comments 6 comments

I am not a California legislative expert and I am not sure what is going on, but today, I received an automated notice as a SB 276 bill watcher of an amendment. Originally I thought that Senator Pan blinked and made the changes requested by the Governor. But then I am not sure what changes the Governor wanted. So I am doubly unsure.

The amended bill has a different bill number, SB 714, and it says it will only go into effect if SB 276 is enacted. So I am guessing this it is stand alone change to SB 276, and is probably intended to allay the concerns of those folks Senator Pan has to listen to, without changing SB 276 which is on the Governor’s desk and probably can’t practically be amended at this point.

However, what I am clear about is that whatever this SB 714 amendment is, it does not resolve the vaccine concerned’s issues, and does not help the families of vaccine injured children who do not want to risk further damage to their vaccine injured child or risk the health and well-being of their other children.

Here is a link to this, whatever it is (and it is now clear that it is a companion bill representing the agreement between the the Governor and Senator Pan).

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB714

Here are the big changes that I see in my first pass at this thing.

1. All Current Vaccine medical exemptions will accepted up until they are not, meaning until the exemption is revoked, and almost all will be.

Here is the amended language:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.”

“grade span is defined below:

2. All medical exemptions are only good for a “grade span” which “means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive..”

There is no such thing as a permanent medical exemption

Here is the language:

“All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.”

3. The penalty of perjury part of the physician’s certification has been removed.
Here is the language:

“A certification by the issuing physician and surgeon, under penalty of perjury, surgeon that the statements and information contained in the form are true, accurate, and complete.”

Here is the big one:

“(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.”

“has been subject to disciplinary action” probably means that the physician has been sanctioned or disciplined by the Board, as opposed to just being the Respondent (defendant) in a Board disciplinary action/proceeding. If so, the exemptions of Bob Sears can be revoked since he has been sanctioned by the Board, but the exemptions of Ken Stoller cannot (yet) because while he is the subject of a current disciplinary proceeding, no disciplinary action has been taken against him. But honestly, I am not sure about that.

Are the medical exemptions written by the disciplined/sanctioned doctors automatically revoked? NO

“(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.”

So an exemption written by a disciplined doctor still has to go through the SB 276 review process before it is revoked. My view is that almost every single medical exemption written by a disciplined physician using broader than CDC contraindications will be revoked.

That means if you have a medical exemption and the writer has been disciplined (or possibly the subject of a disciplinary action), it will most likely be revoked, but it is unclear when. My guess is that there will be some very quick process, because the appeal is just a procedural fig leap to create the illusion of due process.

4. Here is part two of the Bob Sears payback rule:

“(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

So Bob Sears and any other physician who gets probation as a board sanction is out of the medical exemption writing business. I am assuming this provision only applies to post January 2020 exemptions and not exemptions written prior thereto, which under (2) above appear to be valid for the first half of calendar year 2020. But then, you never know with these jokers.

So what’s the bottom line?

Currently, medically vaccine exempt will technically continue to be vaccine exempt until the (i) the physician who wrote the exemption is under a board disciplinary order and (ii) whoever reviews exemptions decides that it is not consistent with applicable standards (CDC, APA, AAFP, ACIP) and if appealed, the appeal affirms the revocation (and pretty much all revocation appeals will be affirmed).

When will that happen? Who knows, but that is what is coming, so plan accordingly.

This is a typical Pan move. Make it look like he’s giving something up to placate the powers he needs to placate, but in reality, he’s turning the thumb screws another full turn on the vaccine concerned/vaccine injured families.

Governor Newsom: If you’re listening, don’t be fooled by this bill/amendment. It does nothing to protect the vaccine injured families. Please reconsider your support for this bill.

And by the way, the community thinks that home schoolers are Senator Pan’s next target.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Big Update on the Stoller Lawsuit: Subpoena Withdrawn; San Francisco Defendants Dismissed from the Case!

Big Update on the Stoller Lawsuit: Subpoena Withdrawn; San Francisco Defendants Dismissed from the Case!

Comments 5 comments

here is the update:

https://gogetfunding.com/blog-single-update/?blogpre=6112639&single=40705

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

The Final SB 276 Push: What Might Help with the Legislators and What Won’t

The Final SB 276 Push: What Might Help with the Legislators and What Won’t

Comments 4 comments

By all accounts, SB 276 will come out of the suspense docket next week. That means it goes for a vote in the Assembly and presumably back to the Senate to consider the amendments made during its travels through the Assembly, then to a Senate vote, and if it passes, on to the Governor’s desk.

Caveat: I am not an expert on the California legislative process. Nonetheless, I do have opinions on what I think might impress the legislators and what won’t.

First, here are the loser arguments in order of loser-ness:

The Biggest Loser argument: “I have a constitutional right and absolute freedom not to vaccinate my child and send him/her to public school.”

No, you don’t! That argument was made in at least four different SB 277 lawsuits, and it lost every time. You may have that right someplace, but not in California.

The Second Biggest Loser argument: “It will cost a lot of money to put SB 276 in place.”

The job of government is to protect the public. In the public health context, whatever it takes to protect the public from risks identified by the authorities designated to make such decisions is cheap at 10 times the cost. Money is irrelevant to avoid a perceived/misperceived/manufactured public health crises.

The Third Biggest Loser argument: “If the law passes, thousands of vaccine aware families will leave the state.”

As my grandfather used to say, “Don’t let the door bump you in the ass as you leave.” Respectfully, and as you most likely know, at this point in time, the vaccine aware are considered the modern-day lepers. There are recent examples of official and social actions against unvaccinated children. In this environment, you’d be more apt to get an offer of bus fare out of the state than support from most legislators if you argue that the vaccine concerned will leave if the bill passes. Actually, making life more difficult for you, if and after SB 276 passes is probably in the cards, all with an eye to accomplish exactly what you are threatening them with, namely the exodus of the vaccine aware from California. So, don’t make their day.

The Fourth Worst argument: “Doctors should be making these decisions, not state officials.” The recent amendment puts an appeals process in place where the review of physician exemptions is in the hands of physician specialists, not public health officials. That was the criticism of early versions of the bill, and it was addressed and changed.

What about the variation of the argument that a physician who has seen the patient has to have the final say on a medical exemption?

The problem is that SB 276 was supposedly introduced to eliminate the handful of physicians writing fake exemptions. Of course, to date, there are no board orders making such conclusions, but there are several doctors under investigation for doing so, as has been recently reported in several NorCal papers. So, while I would not say it’s a complete loser argument, I don’t see it swaying many legislators in light of all the drumbeat pounding out the fake exemption narrative. But for sure, it might be worth a shot.

Ok, so what is the best arguments to make to legislators?

I wish I knew, but I don’t.

But what I can tell you is what impresses and moves me, and what keeps me up nights: The stories of the families of the vaccine injured. Most of these(you) folks never gave much thought to vaccination and followed your pediatricians’ advice and the “proven” vaccine schedule, and then something bad happened after one of these visits. Most of you haven’t or couldn’t prove causation in vaccine court, and many have other children. Few or none of you will qualify for a medical exemption under CDC guidelines for either your vaccine injured child or your other children, and you are being asked to sacrifice your other child/children for the greater good on the alter of “evidenced-based guidelines.” For most of you, that’s an unacceptable option, and understandably so.

Even back when Congress passed the national vaccine immunity act in the mid 80’s Congress knew that there would be a small number of children who would permanently disabled from the 22 doses of the 7 or so vaccines given back then, despite the CDC guidelines or vaccine package inserts. The problem then and now is that despite CDC guidelines, children are still being injured by vaccines and there’s no accurate way to predict injury, witness your child. One child sacrificed ought to be enough. That won’t be possible under SB 276.

So, the most effective argument you can make with your legislator is to tell your story.
I know you already know that. Call this reaffirmance of what you are doing and will continue to do.

Good Luck

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

NY Adopts California like SB 276 Limitations on Vaccine Medical Exemptions via “Emergency” Regulation”???

NY Adopts California like SB 276 Limitations on Vaccine Medical Exemptions via “Emergency” Regulation”???

Comments 3 comments

On Friday August, 16, 2019, New York State Department of Health issued “emergency regulations” concerning the issuance of vaccine medical exemptions. The short of it is that NY has basically done what California SB 276 will do (and what the original version of SB 277 tried to do) via regulation, thereby circumventing the legislative process.

The regulation limits medical exemptions to ACIP other nationally recognized guidance documents establishing the standard of care.”

Here is the Health Department’s summary of the regulations:
https://regs.health.ny.gov/sites/default/files/pdf/emergency_regulations/School%20Immunization%20Requirements_0.pdf

Here is the part directly effecting the criteria for medical exemptions:

“A new subdivision (l) of section 66-1.1 defines “may be detrimental to the child’s health” to mean that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance. Amendments to subparagraph (ii) of paragraph (4) of subdivision (c) of section 66-1.2 require that the reason why an immunization is detrimental to a child’s health be documented in the New York State Immunization Information System. Additionally, amendments to subdivision (c) of section 66-1.3 require the use of medical exemption forms approved by the New York State Department of Health or New York City Department of Education; a written statement from a physician is no longer allowed.”

Clarifying the detrimental to “child’s health” the regulation states that:

“May be detrimental to the child’s health means that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care.”

Here is what the exemption has to contain:

“For individuals exempt from administration of vaccines, providers must submit patient information, including the reason [for the exemption] that such immunization may be detrimental to the child’s health, as defined in subdivision (l) of this section, to the statewide immunization information system within 14 days following the in-person clinical interaction that occurs at or after what would normally have been the due date for administration of an age-appropriate immnization to that child, according to current national immunization recommendations. Subdivision (c) of section 66-1.3 is hereby amended to read as follows: (c) A signed, completed [sample] medical exemption form [issued] approved by the NYSDOH or [NYCDOHMH or a signed statement] NYC Department of Education from a physician licensed to practice medicine in the New York State certifying that immunization may be detrimental to the child’s health, containing sufficient information to identify a medical contraindication to a specific immunization and specifying the length of time the immunization is medically contraindicated. The medical exemption must be reissued annually. The principal or person in charge of the school may require additional information supporting the exemption.”

BTW: Medical exemption decisions are still technically being made by the child’s physician, not by the Health Department. But of course, physician discretion to write medical exemptions beyond national guidelines has been explicitly eliminated. So in reality, New York State is making vaccine medical exemption decisions. The doc is just filing out the paperwork.

Is that a legal exercise of regulatory power?

Good (and obvious) question. I have not looked hard at the issue, yet, but I am sure some of New York’s best and brightest will do so.

If it is legal, then Senator Pan and his allies have gone to a great deal of unnecessary trouble trying to pass legislation to achieve what a couple regulators in the NY State Department of Health achieved without any legislation, so you do have to wonder….

My case for Ken Stoller against the San Francisco City Attorney raises the issue of an alternative standard of care for vaccine medical exemptions. A successful result could have an impact on the New York situation, or maybe the New York Courts ought to be asked to do the same thing.

Teaser: expect a major announcement in the Stoller case soon, and it will be a double good!

Rick Jaffe, Esq.
rickjaffeesquire.com