here is the latest update
from the gogetfund me update, which I couldn’t post from my web site due to something suspicious.
Under SB 277, a physician is permitted to issue a medical exemption if she determines that immunization “is not considered safe” for the patient. I confess to perhaps naively thinking that we could defend the Board’s case against Dr. Stoller by showing why he did not consider immunization safe in the 10 patients involved in the Medical Board’s accusation against him. To that end, we are offering a great deal of evidence in the form of medical literature, transcripts (like the Simpsonwood transcript originally publicized by Bobby Kennedy) and also recent things like the WHO conference excerpts.
In response to all this evidence, the Board is making an almost unbelievable argument to stop any of this information into evidence:
The board is literally arguing that vaccine safety evidence and data is irrelevant to any legitimate issue in the case.
The board’s view is that the only issue in the case is whether the medical exemptions issued by Ken complied with ACIP Guidelines. If they didn’t, then the Board claims the case is over, because actual evidence of vaccine safety should not even be admissible since it is not relevant, even though SB 277 specifically states that a physician’s decision for exemption should be based on a determination of immunization safety for the patient. That’s really what the board is saying!
The board doesn’t think there is any medical judgement to make. All a physician has to do is look at the contraindication and precaution list in the ACIP guidelines and act accordingly. But of course, that’s not what SB 277 said, and around and around we go.
Our view is that the language of SB 277 and the integrative medical standard for vaccine exemptions (allowable under Bus.& Prof. Code Section 2234.1) permits the kind of exemptions written by Ken in this case, and also protects other California integrative physicians who have written broader than ACIP guideline based exemptions. If we ultimately win, all such physicians will be protected. If we don’t, I would expect all these other physicians to suffer the same fate as Ken will in this case. So, this is important for the doctors and the entire community.
We will know by Thursday afternoon whether the administrative law judge will disregard the words of SB 277 and agree with the Board. If she does, it will probably be a much shorter hearing that we had hoped, and with a foregone conclusion, at least until we get to the appellate courts.
(Note, administrative law judges in medical board cases only issue a “proposal for decision” with a recommended sanction. The Board has the power to accept, reject or change the ALJ’s proposal. I predict, this case will be ultimately decided by the California Appellate Courts sometime in 2021 (or 2022 if it gets to the Cali. Supreme Court), so buckle-up, and prepare for a long ride!)
The hearing begins on Monday, March 16th.
Stay Tuned for an Update by Friday on whether the judge agrees with the Board and finds that vaccine safety is irrelevant to writing medical exemptions under SB 277. I have no prediction on what she will do, because I am not sure we’re not not living in the Twilight Zone.
We’re still accepting donations! Thanks to all who have given so far.
Rick Jaffe, Esq.
Tommorow, the ALJ will tell us whether we get to present evidence justifying ten SB 277 medical exemptions that Ken Stoller issued which stated that immunization was not safe for these children. Yes, it is surprising that we might not be able to present evidence on vaccine safety since vaccine safety (or lack thereof) is the actual statutory basis for writing medical exemptions under SB 277. But maybe special rules apply to cases involving vaccines, or maybe it is the times we live in.
The Board’s view is that there is no medical judgement to be made. Physicians just consult the ACIP chart of contraindications and precautions. If the basis isn’t on the chart, there’s no exemption for that shot. Of course, that’s not what the law says (or not what the passed version of the law says), but again, maybe it’s the times we live in.
Part of our case is based on the testimony of the highly regarded physician, James Neuenschwander who gave a moving and very elegant presentation at a recent ACIP meeting. In administrative cases (and civil trials) the parties have to exchange expert reports. The community might be interested in reading Neu’s (as he’s referred to) report. So here it is. It is very, very good.
Another part of our case which is also being attacked by the board is testimony from Greg Glaser, the general counsel of Physicians for Informed Consent and the most knowledgeable person on California vaccine law in the state. He worked with the group of integrative doctors to assess the impact of SB 277. We feel his information is critical to understand why integrative physicians believe they had the right to write medical exemptions under SB 277 much broader than ACIP guidelines.
Greg’s testimony is about his analysis of the law which he conveyed to Ken and others, which we think is a relevant consideration in this case. If nothing else, it shows the state of confusion of a significant number of California physicians who had the impression from the statute and statements from Senator Pan that exemptions could be written based on family history of even cousins. Apparently, their bad for actually reading the law and taking Senator Pan seriously and literally, and worst of all, for actually using the space in between their ears to decide what’s best for their patients, even if it conflicts with the ACIP chart.
Tomorrow, we will find out whether he will be permitted to testify. There is a legitimate legal issue involved here. Typically, lawyers cannot testify about what U.S. law is or means because the only legal expert in a case is the judge. This is mostly due to possible jury confusion, and to make sure the jury follows the judge’s instructions about the law. But, of course that is not a problem when there is no jury, like in administrative law cases. I am completely confident that the judge will understand that she decides the legal issues in the case, and that she is able to accept Greg’s testimony for the limited purposes for which it is offered, but we’ll see.
Here is Greg’s witness statement. Like Neu’s, it’s quite brilliant and compelling.
here is the gogetfunding page for donations:
More by Friday.
Rick Jaffe, Esq.
A few days ago, the LA Times published an articled titled, “New California school vaccine rules have left nurses, doctors and parents confused”
Here it is:
It is a good and very informative piece, as they all are when they are written by this journalist.
It’s been suggested that I comment about it, and, because of the basic point, I am getting many requests from parents and some physicians to explain the law, since the only thing everyone seems to agree with is that the new law is confusing. (Actually Senator Pan doesn’t seem to think it is confusing, but…..).
I confess that I also do not completely understand the new law, but before I tell you what I do not know/understand about the law, let me tell you what I do know and am confident about, and I am telling you this because misinformation is being provided which needs to be corrected.
Here is what I know about the law:
If your child is enrolling in a new grade span in the fall 2020, your child needs a 2020 dated ME. A pre-2020 grandfathered ME will not allow your child to be enrolled in a new grade span in the fall of 2020.
I am 100% certain that this is the CDPH’s position, because it has said so.
Here is the language from its FAQ’s
“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.”
here is my prior post which discusses this issue. It has the pdf of the whole CDPH explanation.
Continuing with what I do know: The new law does provide that physicians who have been subject to the most common forms of medical discipline can/will have their ME’s revoked. I know this because that’s what the law says. Here it is, specifically 120372 (d)(4) provides:
“(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 that is what I do know.
Here is what I don’t know or can’t say for sure under the new law:
1. Are these revocations automatic or does the process of revocations for 2021 (and later) ME forms apply?
Here are some of 120372 (d)(4) immediately preceding and subsequent provisions. You tell me whether families who have grandfathered ME’s from disciplined doctors can avail themselves of the revocation process set forth in the statute.
“(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.
(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.
(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.”
This last highlighted provision strongly suggests to me that the families with Bob Sears’ ME’s should be able to avail themselves of the full process.
To the extent that the current law remains in effect in 2021 (and as I’ll discuss, I have my doubts about this), this should be a major battle ground.
Every single Bob Sears exemption (and the exemptions of any other physician sanctioned in 2020) should be contested. That will probably require some concerted action, perhaps through the entry of a new national player with more resources than the current vaccine concerned groups. More about this another time.
But again, every single grandfathered exemption which the CDPH attempts to revoke under 120372 (d)(4), should be vigorously contested.
Here is something else I do not know:
Under SB 276, so called grandfathered exemptions would only be valid if they were filed with the CDPH. The filing requirement was removed in SB 714. That creates an administrative hole in the law because while grandfathered ME’s from disciplined physicians are revoked or revocable, under the current law, there is no formal mechanism by which grandfathered ME’s are forwarded to the CDPH. So how does that agency find out about those ME’s? Practically speaking, I suppose the schools on an ad hoc basis forward them, but, as indicated in the comments in the LA Times article, schools like systems, process and guidelines, and there are none now.
My guess (or maybe my hope) is practically speaking, most grandfathered exemptions even most written by Bob Sears are safe for this and at least the first part of the next school year. But come the beginning of 2021, all bets are off.
update: comment that parent on Facebook was told their Sears exemption was no longer valid: That may well increases as a result of the LA Times article, but it’s not clear that is legal.
Based on the LA Times article, we know that Senator Pan thinks and wants all of Bob Sears’ ME’s to be revoked now.
There is zero chance he is going to sit out this legislative session. So expect a new bill from him next month. I have no special access or secret knowledge, but I do not how to read the tea leaves and learn from the past, like the creation of the false PR narrative of fraudulent ME’s and how he exploited the Disneyland measles thing.
Coronovires is the perfect panic for him to exploit. So expect his new bill to, in all but in name rescind the SB 714 protections, require all grandfathered ME’s to be filed with the CDPH, and to clean-up/clarify the revocation provision for grandfathered ME’s from disciplined doctors. You also should start preparing for this next round.
Rick Jaffe, Esq.
In under three weeks, Ken Stoller’s Medical Board case for writing medical exemptions from infectious disease immunization beyond the ACIP guidelines will go to hearing. For sure, if you haven’t donated to his legal defense fund, please do. Here is the link.
Given all the international fear about the possible pandemic, the quarantines, restrictions on travel and the increase of protective measures around the world and even here in the US, it might be less than an ideal time to try this case. But you play the cards are you dealt. Sure, in a technical sense, coronavirus may be irrelevant to the actual issues in the case, but still…
Because of how I roll, we will confront the issue directly in the case. You’ll have to wait and see how we do it.
Thinking about how we are going to address the issue in the hearing got me thinking about how the VC community is addressing and should address the issue.
I spend some, but not a great deal of time on social media. I have seen discussion from the primary blogger Larry Cook talk about Vitamin C or Liposomal. I think a discussion about possible natural treatments is a good thing. There is a lot of talent out there, and anyone who is raising awareness of inexpensive, natural, harmless possible treatments is doing a public service, as long as they do not minimize the seriousness or risks of the disease, because doing so would play into the rabid provaxxer view that all these “anti vaxxers” are wackos!
So, my advice is to get the medical information out there, but don’t feed into the pro vax “wacko” narrative.
As a related aside, I handeled an FDA felony criminal case a dozen or so years ago defending the inventor of arguably the most popular cold remedy, who subsequently invented a treatment for avian flu during its outbreak. It was a combination of a couple different herbal extracts, like teas, echinacea, and some other stuff, each with literature based proven effects on parts of the viral replication cycle. He did some lab work and tested it out at a prominent Hong Kong Hospital, with apparently amazing results. Unfortunately for him, the epidemic ended in Asia, so he tried to reimport it into the US, and that’s where he got into trouble with the feds, primarily because he called it a bird flu treatment, which is a no-no under the FDA law. He got indicted on multiple felony counts. Eventually he pled out to a misdemeanor with no jail time which isn’t a bad result since the US Attorneys’ office are “felony factories” and they usually don’t do misdemeanors.
I hope some of my more biochemically inclined maverick docs and lab scientists are working along those lines, but if they are, a word of advice from an FDA criminal defense lawyer: don’t call it a cure or treatment!
Back to the matter at hand. Based on TV reports over the past few days, the Coronavirus is becoming the dominant news story, and once it gets to the US ( and per CDC “it’s not if, but when”) the story and disruptions it will cause will become an ever-present and all encompassing force in American life for some undetermined time.
The thought leaders in the vaccine concerned movement need to get ahead of this. The wacko fringe may start promoting conspiracy theories. Some luney-tune is going to claim it’s a big pharma hoax to promote current or future vaccines. I hope the community will shut down that crap when it arises (as I’m sure it will).
I actually see this as an opportunity for the community to show itself as thoughtful, responsible and flexibly adapting to life’s circumstances. When you have a fire on a ship in the middle of the ocean, you don’t have a debate on the environmental impact of the fire retardant and you don’t argue about whether it is really is a fire, or just the fire retardant industry’s ploy to sell more product, because if you do, and don’t act, then the fire will end the debate, and natural selection ultimatley gets rid of the terminally stupid and clueless.
So, to the thought leaders, you may not have the hard deadline I have to get in front of this (and in truth, I’ve already had to deal with this problem in other matters, but I can’t talk about that now). However, it behooves you all to get ahead of this and turn it into the opportunity to both be part of the solution and help advance the process of educating the public.
For what it’s worth.
Rick Jaffe, Esq.
Recently, it has been reported that the Cali. Medical Board has sued the San Diego School District to order the releasae of vaccine medical exemptions records in its possession.
Here is an article explaining it, which provides a telling statement from the School District. See if you can spot it and what you think it means.
So, what’s going on?
Less than meets the eye.
First, a point of legal clarification. School records are not HIPAA protected, rather they are protected by another federal statute FERPA. So, don’t bother complaining that your child’s school records are federally protected by HIPAA, because they are not, as HIPAA only protects medical records, and once the doctor’s medical exemption is tendered to the school, the federal protection changes from HIPAA to FERPA. Got it?
Next important point (and the most important point). California citizens have a state constitutional privacy right to have their medical records remain private. That privacy right was extended to include medical records in a case in the late 1970’s. However, in the last dozen years or so, that right has been eroded by the medical board’s successful efforts to obtain patient medical records over patient objection.
This has happened by way of the medical board filing special proceedings/motions to compel compliance with investigative subpoenas. These special proceedings are not full lawsuits. There is no discovery. There is no evidentiary hearing (technically there could be but they are never granted). There is just some paperwork submitted to a “Law and Motion Judge”. These judges are very, very busy. There are usually 10 to 20 motions on the judge’s docket on the day these motions are heard. The day before the so called “hearing,” a “tentative decision” is issued, which gives the result, and explains the reasoning. If the losing party wants to tell the judge why he/she is wrong, he or she can attend the “hearing.” Good luck with that.
The standard for granting these motions to compel compliance with the board’s investigative subpoena is “good cause.” It is established by the board submitting a declaration (affidavit) from a doctor who says that she has reviewed what ever information she has reviewed and it seems like the doctor has violated the standard of care for whatever reason (in these cases, for giving a ME which is not in compliance with ACIP guidelines), but the board needs the patient medical records to be sure. It’s very hard to counter argue. It’s not the judge’s job to weigh medical opinions, even if you put in a counter opinion. Bottom line, now that the board has figured out what it has to say to get the medical records, the courts just grant the board’s request and issues the requested court order.
I am aware of three such motions against physicians issuing ME’s. I was the attorney on one of them. All three resulted in an order forcing the doctor to turn over the records. One case went up on appeal (not my case, as I wouldn’t appeal this kind of special proceeding with the limited record) and that resulted in an appellate court saying some very harsh words about the doctor, and now there is negative appellate court authority on the issue which is a bad thing.
OK so what’s the deal with the action against the San Diego School District Thing?
As I said, the state constitutional privacy right belongs to the patient/family. It does not belong to the doctor or possessor of the information like the school district. So, while the doctor has been given the legal standing to assert the patient’s rights, arguably, neither the physician nor the school district have the authority to waive these rights, that is to say, produce the records without a court order.
So, out an abundance of caution, the San Diego school district is refusing to comply with the board subpoena absent a court order to do so. A court order will give the school district perfect and absolute protection from irate parents who object to the release of their child’s school records.
This is exactly what happened in NorCal about a year ago when the board filed motions to compel a school district and a HMO to produce FERPA and HIPAA protected records. They basically told the court that they needed a court order to produce the records. And in those two cases, they were the entities that filed the complaints. So, I think it’s fair to assume that the reasons the student records are being subpoenaed from the San Diego school district is because someone (probably in the nurse’s offices) filed complaints with the board about permanent medical exemptions for seemingly healthy (or very healthy) students. I cannot think of anyone else who would have access to this school information, other than the school itself.
So, what does not mean that the medical board has sued the San Diego School District for the release of medical exemption records?
It means that this is how the game is played. The board is giving the school district the legal cover to provide the records that the school district wants the board to have, so the board can investigate the complaints filed by the school district, and get these kids vaccinated or removed from the school district. And that’s all it means.
Rick Jaffe, Esq.
here it is: click on the update page
Rick Jaffe, Esq.
Like many, I have been following the battle by the vaccine concerned against New Jersey Legislature’s attempt to remove the religious exemption to childhood vaccination. Last year, New York removed religious exemptions by strong-arming one legislator to change his previously cast vote in opposition. In New Jersey, it’s coming down to a last-ditch compromise to carve out or preserve religious exemptions for families who can afford to send their children to private schools where the schools will allow/honor religious exemptions. I have to say, that’s a new one to me.
Here is the way one news story describes it:
“The compromise would end religious exemptions for vaccines in public schools and day care centers — but allow private institutions to admit children whose parents declined to have them vaccinated, according to Sens. Joe Vitale, the bill’s sponsor, and Declan J. O’Scanlon.
Private schools would be required to post outside the building the number of unvaccinated children at each facility.”
My guess is that the posting of the number of unvaccinated on a school’s building is a way to not so subtly pressure private schools to reject accepting the religiously vaccine exempt. It’s like a giant scarlet letter or a sign saying “Caution: this is a leper colony. Enter at your own risk!” I find this requirement fairly appalling. It may work for schools which do not have a significant percentage of religious exempt students, but I know from my dealings with similar issues in California, that some schools are not financially viable if they lose all their vaccine exempt students to home schooling or departure from the state. So, I believe that if the bill passes, some schools will become safe-havens for the religiously exempt.
What about families who don’t have the money to send their children to private schools?
Well they are out of luck under the bill. Whatever rights the richer among us have to exercise our religious rights/freedoms do not apply to the poor, as many in the community have lamented.
I guess that is just tough luck for them. Sucks to be poor. It’s too bad there is no law against that kind of blatant discrimination.
Oh wait, there is. It’s called the Constitution, and specifically the parts that talk about religious freedom and the equal protection under the law. As many of you might know from past posts, I am not a big fan of lawsuits challenging the removal of the personal belief or religious exemptions to vaccination. All past constitutional challenges have failed, and I have repeatedly predicted that future challenges will also fail, so long as we are talking about the complete removal of that right.
However, I am equally certain that a law which only removes the right for those too poor to send their kids to a private school will be struck down on constitutional grounds.
I think what happened is that in a desperate attempt to pass the bill through the Senate, they came up with this ill thought out, idiotic idea. That fact that the Dems are proposing a bill which so obviously discriminates against the poor, shows how that the irrationality of the issue has caused politicians to lose sight of their core values. But as indicated, the New Jersey courts will not let this stand.
To all you braving the cold tomorrow, (including my Cali. Latinas friends, the New Yorkers and Oregonian health freedom fighters) keep up the fight! If it doesn’t work out, a slew of lawyers will soon be joining you for the next phase.
Rick Jaffe, Esq.