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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.