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A post with two titles: The dissenting opinion everyone interested in the vaccine issue should read/ The Strongest Argument against Cali SB 276

A post with two titles: The dissenting opinion everyone interested in the vaccine issue should read/ The Strongest Argument against Cali SB 276

In late January 2019, Federal Circuit Court of Appeals Judge Newman issued a dissenting opinion which everyone interested in the vaccine issue should read and study. The Court of Appeals had affirmed the vaccine court’s denial of compensation to an alleged vaccine injured child on the stated grounds that the child’s injury was a result of a genetically confirmed pre-existing condition. The family moved for rehearing and en banc rehearing, which was denied, but Judge Newman wrote a dissenting opinion which was joined by one other judge. The case is Oliver v. HHS. For reasons set forth in the dissenting opinion of Judge Newman, it seems like the majority got it wrong. But that’s not why the opinion is really significant.

At the recent PIC seminar and in a recent post, I told the vaccine concerned to stop saying the Supreme Court said that vaccines are unavoidably unsafe, because it didn’t.

Here is the post where I explained what the Supreme Court actually said.

I pointed out in my PIC talk that there was plenty of powerful true things from official sources which could be used to show what you need to show, and referenced a portion of Judge Newman’s dissent in Oliver. Here it is (but you won’t like the beginning of the quote).

“The National Childhood Vaccine Injury Act of 1986
It had long been known that a small percentage of childhood vaccinations have led to grave injury and permanent disability, as discussed in the legislative record:

Childhood vaccines are essential to maintain the health of our society. They have been invaluable weapons against the dread diseases that used to kill or injure hundreds of thousands of children every year: polio, measles, pertussis, diphtheria, tetanus, rubella, mumps, and smallpox. But while these vaccines have brought the gift of life and health to millions, there are a very small number of children every year who are injured by unpredictable side effects of the vaccines through no fault of their own or the vaccine manufacturers.
132 Cong. Rec. S17,343–02 (1986) (statement of Sen. Kennedy). The House Report reiterated the concern for unforeseeable injury flowing from compulsory vaccinations:
While most of the Nation’s children enjoy greater benefit from immunization programs, a small but significant number have been gravely injured. . . . . ..
But it is not always possible to predict who they will be or what reactions they will have. And since State law requires that all children be immunized before entering school, most parents have no choice but to risk the chance—small as that may be—that their child may be injured from a vaccine.
H.R. Rep. No. 99-908, at 4–6 (1986), as reprinted in 1986 U.S.C.C.A.N. 6344, 6345–46.
The legislative record states that about one half of one percent of children each year experience vaccine-related injury;1 and with four million births each year in the United States, this is about 20,000 vaccine injuries per year.2

Footnote 1: To Amend the Public Health Service Act to Provide for the Compensation of Children and Others Who Have Sustained Vaccine-Related Injury, and for Other Purposes: Hearing on S. 2117 Before the Comm. on Labor & Human Res., 98th Cong. 21 (1984) (“S. Hrg. 98-1060”).”
Footnote 2: Joyce A. Martin et al., Births: Final Data for 2017, 67 National Vital Statistics Reports 1, 3 (2018), 508.pdf.”
(emphasis added)

So according to Judge Newman, back in 1983 Congress acknowledged that 20,000 kids would suffer grave injury and permanent disability from vaccines.
(So, folks, stop misquoting the Supreme Court about “unavoidable injury” and start accurately quoting Congress, reaffirmed two months ago by two federal appellate court judges instead.)

In the mid 80’s, kids got somewhere between seven to ten vaccines (and I’ve seen numbers as high as 20 or so shots including boosters.) Now kids are given around 72 shots of about 20 plus different vaccines, or so I read.

Does anyone other than Paul Offit think that giving 3 to 10 times the number of vaccines or separate vaccine shots to kids wouldn’t increase the number of children gravely injured and permanently disabled by vaccines? (I suppose that’s a rhetorical question, because the answer is that most of the vaccine mafia would probably agree with Offit and his view that an infant/child’s immune system is robust enough to handle even 10,000 vaccines).

Assuming just a linear increase, that would make the number of gravely vaccine injured, permanently disabled children around 70,000, per year (3 and a half times the old injury numbers). Maybe it’s less, but maybe it’s a lot more (and there might be some indication that it is a lot more based on what I understand to be the dramatic increase in autoimmune disease since in the last 30 to 40 years). But’s let’s just consider a linear increase to 70,000.

Here is some perspective

In 2018, 70,000 people died of opioid overdose, and that is called an epidemic and a crisis. So, if my relatively conservative speculation of the current annual number of vaccine gravely injured and permanently disabled children is in the ball park, why isn’t that a public crises?

I suppose the answer is obvious and right in the language quoted by Judge Newman because as Congress acknowledged back in 1983 “Childhood vaccines are essential to maintain the health of our society.”

But that raises the question: if 70,000 is the cost of maintaining the health of our society, is there some higher number where the cost would be considered unacceptable? No one in authority is going to answer that question. Instead, there is the mantra that vaccines are safe and effective and side effects are rare.

Nonetheless, I think it’s a question which should be asked, and repeatedly asked since back in the days when there was an arguably reasonable vaccination schedule, Congress itself acknowledged the grave injury and permanent disability of 20,000 children caused by just a relatively few vaccines given during childhood.

The other critically important thing about Judge Newman’s dissent

Actually, I’d say the most important part of the dissent is Judge Newman’s discussion of the new vaccine paradigm called adversomics/vacinomics/personal vaccinology. It may be the first or one of the first and most significant judicial recognition of this emerging vaccine paradigm.

From past posts, you’re probably getting that I think the only way the legal status quo and continued attacks on the vaccine concerned abates or changes is by a change from the last century’s,(but still accepted) one-size-fits-all vaccine paradigm. Judge Newman’s dissent is a very important starting point for the acceptance of the shift to personal vaccine determinations based on family history and genetic testing. Regrettably, the state of genetic testing in terms of vaccine risk assessment is still in the crude beginning stages. But……….

Let’s look at the conceptual intersection between the Congressionally admitted vaccine induced gravely injured and permanently disabled, and personal vaccinology, through the lens of “Childhood vaccines are essential to maintain the health of our society.” Hold those three ideas together in your head, shake them up and what do you get?

Honestly, I don’t see an end to mandatory vaccinations coming from this mix, nor do I see a right to a personal belief exemption.

But what I do see a need for families with a strong history of vaccine reactions or autoimmune disease to obtain as much information as they can about their child’s personal vaccine risk assessment, and make a risk/benefit assessment based on the best available evidence, and that would involve whatever genetic testing is available, mindful of its current limitations.

And that means a robust medical exemption option based on a doctor/patient interaction and analysis based on the best and most current tools available.

Vaccines may be necessary to protect the “public,” but Judge Newman’s dissent makes clear that the Government has known for decades that children will be gravely injured and permanently disabled by vaccines. We now have more injured children, but we also have a somewhat better understanding of which kids might be at greater. The idea that a vaccine exemption based on these tools and new information could be overturned by a government employee (who may or may not be a physician) using last Century’s analytical concepts seems to me to be a profound and unconscionable disserve to the future injured and their families who might have been saved by robust medical exemption process.

Here is the judge Newman’s opinion.
Decision – 2019 – oliver – scn1a – dissent in fed cir – 17-2540.Order.1-9-2019.1

This post and Judge Newman’s opinion is as good as I’ve got about why SB 276 (and the pending Oregon bill) should be rejected.

Good luck!

Rick Jaffe, Esq.

Memo to Cali. Parents of Currently Vaccine Medically Exempt Children: What happens if SB 276 becomes law?

Memo to Cali. Parents of Currently Vaccine Medically Exempt Children: What happens if SB 276 becomes law?

By now, all Cali. Vaccine Concerned (“VC”) know that earlier this week, Senator Richard Pan dropped the bill he’s been hinting about for some time. His SB 276 will eliminate the power of physicians to issue vaccine medical exemptions. Instead, doctors will submit form applications/requests for exemptions which will be reviewed and approved or denied by unspecified state health officials.

Even more significant, but unsurprising is SB 276’s stated standard for which medical exemption applications will be reviewed: CDC contraindications, period, but GULP!

Before I continue, let’s have alittle perspective: This is just the first cut/draft of the bill. Like with SB 277, the legislative process may result in changes which could make the bill less – let’s just say – terminal to the hopes of the VC. Of course, the elimination of the contraindication exemption from SB 277 directly resulted in what Senator Pan believes are all these unjustified/fraudulent exemptions. So, expect him to be more recalcitrant this go around. But perhaps the same pressures which forced the elimination of the contraindications standard in SB 277 will surface again. Early signs are good. Senator Ben Allen (SB 277 co-sponsor) has stated he’s going to honor his SB 277 commitment to maintain a robust exemption option, and so for now (under the current version) he’s not with Senator Pan.

Still the situation for the Cali VC and especially the families with current complete medical exemptions is dire and alarming.

That’s because of the retroactive effect that SB 276’s contraindication standard will have on already issued permanent medical exemptions.

The retroactive effect is effectuated by the bill’s requiring all current vaccine exemptees to submit their exemptions to the DOH by July 1, 2020 and those exemptions will be reviewed a state or local public health official.

Here is the operative language of this part of the bill:

“2) If a medical exemption has been authorized pursuant to Section 120370 prior to the adoption of the statewide standardized form, the parent or guardian shall submit, by July 1, 2020, a copy of that medical exemption to the department for inclusion in the database in order for the medical exemption to remain valid.
(d) If the State Public Health Officer or a local public health officer determines that a medical exemption submitted to the department is fraudulent or inconsistent with applicable CDC guidelines, the State Public Health Officer or local public health officer may revoke the medical exemption.”

Ok, so it all comes down to whether a current medical exemption is inconsistent with applicable CDC guidelines.

Here is my bottom-line opinion on this:

There are no (or virtually no) currently issued medical vaccine exemptions for all vaccines throughout the duration of children which are consistent with CDC vaccine contraindications.

In fact, if the standard is CDC contraindications, I think the Department of Health could take the position that all of the permanent, all-inclusive vaccine exemptions are defective of their face for two reasons.

First, contraindications are vaccine or multi-vaccine shot specific and the contraindications differ (I’ll show you the contraindications in three of the basic vaccines in a bit). I suspect the state-approved form is going to list each vaccine/shot separately and ask the physician to note the contraindication to each vaccine. If a current exemption doesn’t do that, then without more, I’d say the exemption is not consistent with the CDC standards.

Second, for reasons I don’t want to publically explain, I’ve seen what I expect to be the academic infectious disease pediatrician view on this, and I believe these academics will take the position that there is no medical condition or family history which would justify an exemption from all vaccines throughout childhood. I don’t even think that’s surprising since even mega activist Barbara Loe Fisher has said about the same thing.

So, for all practical purposes, if you have a healthy child and you have a permanent all-inclusive vaccine exemption from a VC physician (and frankly, only VC physicians write permanent all-inclusive exemptions, because the concept/practice doesn’t exist with the majority of pediatrians), once the health officials review it, it will most likely be revoked.

What happens if that happens?

It’s unclear from the bill. For new exemption requests which are rejected, the physician has 30 days to submit additional information supporting the exemption request. But I don’t see a similar provision for review of existing exemptions, at least under the current bill. My guess is that they’ll go with the most administratively efficient solution which is that in the revocation notice, the parents will be informed of their right to reapply with the current form and show why each of the vaccines from which they wanted to be exempted is justified under each vaccine’s contraindications.

If I’m right, none (or almost none) of the prior permanent exemptions for all vaccines will be approved by the officials (unless your child is so immunocompromised that he/she lives in a bubble, and of course I’m not talking about temporarily immunocompromised kids, like say kids undergoing cancer chemotherapy).

Let’s look at a couple of specifics, and we’ll start with MMR because of the recent hullabaloo.


“Some people should not get MMR vaccine or should wait.
Tell your vaccine provider if the person getting the vaccine:
• Has any severe, life-threatening allergies. A person who has ever had a life-threatening allergic reaction after a dose of MMR vaccine, or has a severe allergy to any part of this vaccine, may be advised not to be vaccinated. Ask your health care provider if you want information about vaccine components.
• Is pregnant, or thinks she might be pregnant. Pregnant women should wait to get MMR vaccine until after they are no longer pregnant. Women should avoid getting pregnant for at least 1 month after getting MMR vaccine.
• Has a weakened immune system due to disease (such as cancer or HIV/AIDS) or medical treatments (such as radiation, immunotherapy, steroids, or chemotherapy).
• Has a parent, brother, or sister with a history of immune system problems.
• Has ever had a condition that makes them bruise or bleed easily.
• Has recently had a blood transfusion or received other blood products. You might be advised to postpone MMR vaccination for 3 months or more.
• Has tuberculosis.
• Has gotten any other vaccines in the past 4 weeks. Live vaccines given too close together might not work as well.
• Is not feeling well. A mild illness, such as a cold, is usually not a reason to postpone a vaccination. Someone who is moderately or severely ill should probably wait. Your doctor can advise you.
This information was taken directly from the MMR VIS””

That seems pretty straightforward, but there’s some wiggle room in terms of what kind of first degree relative autoimmune issue might qualify.

Here are the Lord’s words on DPTa:

“Some children should not get DTaP vaccine or should wait.
DTaP is only for children younger than 7 years old. DTaP vaccine is not appropriate for everyone – a small number of children should receive a different vaccine that contains only diphtheria and tetanus instead of DTaP.
Tell your health care provider if your child:
• Has had an allergic reaction after a previous dose of DTaP, or has any severe, life-threatening allergies.
• Has had a coma or long repeated seizures within 7 days after a dose of DTaP.
• Has seizures or another nervous system problem.
• Has had a condition called Guillain-Barré Syndrome (GBS).
• Has had severe pain or swelling after a previous dose of DTaP or DT vaccine.
In some cases, your health care provider may decide to postpone your child’s DTaP vaccination to a future visit.
Children with minor illnesses, such as a cold, may be vaccinated. Children who are moderately or severely ill should usually wait until they recover before getting DTaP vaccine.
Your health care provider can give you more information.
This information was taken directly from the DTaP VIS”

And Jesus/Moses/Mohammed spoke onto the flock about HIB contraindications as follows: (and some of this nonsense seems about as current)

“Some people should not get this vaccine.
Hib vaccine should not be given to infants younger than 6 weeks of age.
A person who has ever had a life-threatening allergic reaction after a previous dose of Hib vaccine, OR has a severe allergy to any part of this vaccine, should not get Hib vaccine. Tell the person giving the vaccine about any severe allergies.
People who are mildly ill can get Hib vaccine. People who are moderately or severely ill should probably wait until they recover. Talk to your healthcare provider if the person getting the vaccine isn’t feeling well on the day the shot is scheduled.
This information was taken directly from the Hib VIS”

OK, so do you want to know for sure if you child’s current complete medical exemption will be continued by the state or local health officials?

Then go through all the childhood vaccines and see whether he/she fits a contraindication for every single vaccine. Per previous, I think that no otherwise healthy child is going to get there.

What about a complicated medical history? Easy, if it’s in the contraindication for a specific vaccine, you get it (for that vaccine). If not, you don’t.

And that’s the same basic response to any question you might have about your child’s particular medical issue or family history. (See my comment later on about dirt.)

Here is the CDC URL.

But let’s circle back to the beginning

Right now, SB 276 is just a first iteration of a bill. Bills get changed in the law making process, and bills get killed, even vaccine bills, as we’ve seen recently in Washington. And it’s much easier to kill a bill than pass one.

There are many reasons this bill should die, not the least of which is because it takes medical decision making out of the hands of physicians, which seems like not only a bad thing, but something which even the Medical Board of California and the California Medical Association shouldn’t be happy about.

It also reduces a critical decision about a child’s future health and safety to contraindication statements which in many cases are several decades old, and frozen in time without any consideration of what has been learned in the last decade or two, and without consideration of new emerging technologies.

The notion that an army of state or local health officials are going to make these vital and potentially life altering medical decision, seems stupid as dirt, but maybe that’s an insult to dirt.

Still, we live in a democracy, and the way it works is that you mount an effective legislative campaign, enlist as many allies as you can, work as hard as you can, and hope for the best.

Rick Jaffe, Esq.

SB 276 gets Amended, but still knocks-out current medical exemptions, and fragile children won’t qualify for future exemption

SB 276 gets Amended, but still knocks-out current medical exemptions, and fragile children won’t qualify for future exemption

On April 30, 2019, SB 276 was slightly amended.

Here is the link to the amended bill.

Here is the short of it:

1. Precautions are added to contraindications: The amended bill adds the following language after contraindications: “or that a specific precaution regarding a particular immunization exists. . . . “

What practical effect will that have on those with current medical exemptions or parent of medical fragile children?

I’d say none. Neither the CDC, AAP, AAFP or vaccine package inserts (from which precautions are taken) recognize the concept of medical fragility. And more importantly, it’s just a vaccine-by-vaccine determination. Basically, the conventional standard of care doesn’t recognize the concept of an exemption from all vaccines for all of childhood for healthy children. That’s something that only exists in the world of the vaccine concerned and the physicians who subscribe that this minority medical view.

2. Delay of filing of current medical exemptions:

The time for current exemptions to be filed has moved from July 1, 2020, to either December 31, 2020, (based on the change to the text of the statute) or December 31, 2021 (based on the legislative counsel’s digest) 1. So basically, if you currently have a vaccine exemption, it will be good for the first part of the 2020-2021 school year (or 2021-2022 school year based on the legislative counsel’s digest), and for many, much or all of it, because it may take some time for the public health authorities to reject them. (They’ll catch the inconsistency at some point and correct it.)

3. Parent filed medical exemption requests?

Here is the new language in the bill:

“The bill would require the department, in consultation with local educational agencies and local public health officers, to develop a process for a parent or guardian to request a medical exemption and the department to approve or deny the request and communicate its decision to the school district and the parent or guardian, as specified.”

Looks to me like the bill gives parents the ability to cut-out the physician from the exemption applying process.
I’m fine with that, but the only real practical benefit to the families is that they won’t have to pay a physician to have their exemption request denied.

4. Administrative review process:

The revised bill contains the following additions:

“(3) The denial of a request for a medical exemption may be appealed to the State Public Health Officer.
(4) For purposes of filing an appeal, the physician and surgeon may submit additional information to the department within 30 days from the notification for further review by the State Public Health Officer or designee.”

So there will be some sort of review process. I take from this addition that the plan is to have local public health officials make the initial determination (read rejection of the exemption request) and then someone from the state health department will handle the appeal (read rubber-stamp the exemption rejection, but even rubber-stamping is expensive, when done by governments).

And my friends, that’s the most interesting part of the bill. I’ll explain why very soon. You’ll want to pay attention.

Rick Jaffe, Esq.

My First Take on Senator Pan’s June 17th SB 276 Revision

My First Take on Senator Pan’s June 17th SB 276 Revision

I have to give the guy credit. He’s very good at Legislative tactics, meaning throwing curveballs to the opposition and giving them little time to react.

It’s two days before the hearing and he’s introduced what appears to be a substantially revised bill, which is more complicated and apt to confuse his colleagues in the legislature all the while seeming to address the main points of criticism, thereby taking the wind out the sails of his opposition.

I’ve looked over the new bill carefully and I think I’ve figured out the main points anyway. I’ll go into details and quoting the statute later, but I wanted to get out the big picture quick and dirty:

For current medically exempt: Not much difference from prior versions. Exemptions still have be be submitted and are subject to review and revocation, with some small differences which I’ll discuss later.

The big, at least nominal changes are for new exemptions after the proposed exemption process takes effect on January 1, 2021.

Under prior versions: docs write medical exemptions applications, which are approved or rejected by state public health officials.

Under the new version, docs write “medical exemptions certifications” which seemingly are actual medical exemptions, like under the current law. exemptions.

But here is the rub: The exemptions are reviewable and revocable by a public health official or process, basically anytime a public health official wants to review any exemption. And since the health officials have all the exemptions, I have to believe they will simply target the known few exemption writing physicians which remain.

So practically speaking, the physician writes, let’s call it a conditional exemption, but it seems certain that any exemption which is broader than CDC contraindications, precautions and CDC family history indications (if there is even such a thing) will be rejected. The practical result will be the same as under prior iterations of the bill, no broad based complete, non temporary medical exemptions.

This version really goes after the exemption writing physicians hard, and especially the exemption writing physician’s who are not the child’s PCP.
The bill requires the exemption writing physician to notify the child’s PCP about the exemption.
What do you think a conventional PCP will do after he/she gets that notification? File a complaint with the medical board for fraudulent medical exemption writing.

The new version also provides that once there is an accusation against a physician involving an immunization issue, that physician will no longer be able to right exemptions unless and until he’s cleard of the charges.

There are two other targets painted on the backs of exemption writing physicians.

First, special treatment/negative consideration if the physician writes more than 5 medical exemptions.

Second, each medical exemption certification has to be signed under penalty of perjury. This last requirment will either be meaningless or could end medical exemptions for good, depending on the wording of the certification. I may discuss the differences in a later post.

So to recap: We’ve gone from doctors submitting applications for public health officials’ approval, to physicians writing exemption certifications which are immediately reviewable by public health officals, and will be approved or rejected under basically the same of CDC, APA ACIP guidelines, and heven help the physician who continues to write exemptions, because they will be in a whole world of hurt if they do.

Bottom line: same result, nominally different method to achieve it, and alot nastier for the exemption writing physicians. You really get a sense from this version how much Senator Pan and his allies hate these doctors.

RicK Jaffe, Esq.

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

A Very Short Response to the 11 Reasons Thing Circulating on FB Vaccine Aware Pages

Many people have asked me to comment on a post raising 11 reasons (I think that’s the number) why SB 276 is illegal. I glanced at it quickly. Although I acknowledge and appreciate the effort, most or all of the points and discussion is recyled from arguments raised and rejected in prior court cases.

There were at least four challenges to SB 277 in state and federal courts, all of which were rejected. The lawyers who challenged SB 277 were smart, articulate, wrote very good papers and raised every conceivable issue, and they all lost. Here are three of the SB 277 decisions.

Whitlow v. California, 203 F.Supp.3d 1079 (S.D. Cal., 2016)

Love v. State Dep’t of Educ., 29 Cal.App.5th 980, 240 Cal.Rptr.3d 861 (Cal. App., 2018)


Here is a family law case in which the religious right to oppose mandatory vaccination was rejected. Price v. Price (In re Marriage of Price) (Cal. App., 2019)

Here is a West Virginia federal case which you should read because it involves a physician written medical exemption rejected by school authorities.
(Spoiler alert: The court of appeals upheld the rejection, and rejected the religious argument as well). This case will be cited and discussed in detail by the Attorney General’s Office in every forthcoming SB 276 legal challenge.

If you read these decisions, you will get a better understanding of the law and how judges think (primarily relying on the limbic parts of their brains). Caution, it will depress and/or anger you.

I have addressed the discrimination argument against mandatory vaccination in a prior post. Here it is:
The short of it is that it’s a non-starter.

Neither HIPAA nor FERPA provide a private right of action for a state government agencies violation of these federal statutorily created rights.

While it is true that appellate courts sometimes change the law, for reasons which I stated many times, in the vaccine context, it is really an uphill battle.

That being said, SB 276 involves medical exemptions, not personal belief and religious exemptions. To me that means that a successful challenge cannot focus on the usual suspects, i.e., claims like substantive due process, education rights, religious choice, medical freedom, but something different. So, keep up the thinking and interacting about these issues, and maybe one of you will come up with something that might work.

Rick Jaffe, Esq.

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”???

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:

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.

“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

“How Long Will My Child’s Current Vaccine Medical Exemption Be Good for?”

I get asked that alot these days. But, as I have said repeatedly in these posts, I can’t answer each family’s specific question about this, not even the families who have exemptions written by Ken Stoller (who I represent). So again, I won’t be answering any of your calls or messages about your child’s specific circumstances.

Aside from my inability to deal with the shear volume of families who have questions, the reason I can’t answer specific questions or offer a legal opinion about specific cases is: 1. The new law has some vagueness in it and more importantly, 2. Regardless of what the law says, – even when it is clear – it is not clear to me that the schools will follow the law.

That being said, here is what I know to be the case about the new law:

If your child is not changing a grade span (entering a new check point) and is staying in the same school, your child’s medical exemption should continue to be technically valid next school year.

But there is a big caveat/exception:

If the physician who has written the medical exemption is under a medical board disciplinary order (roughly speaking), and the department of public health finds out about the exemption, the exemption can be revoked. I assume, (but do not know for sure) that the revocation will be automatic based solely on the physician’s disciplinary status and will not require the revocation procedure set forth in the statute. But as stated, I am not sure, because the statute is not clear about this.

Right now, I think there are only one or two California licensed doctors under board order, and I would expect every exemption that those physicians have written will be revoked after the public health department learns about the exemption. The board is currently investigating many, if not most of the physicians around the state who have written the majority of medical exemptions.

No one knows how these cases will shake out, but my educated guess is that the board will try to put all of these doctors under a board order, so that all their medical exemptions can eventually be automatically revoked by the department of public health. In the next year or two, I would expect that other physicians will be put under board order, so I would expect the list of physicians whose exemptions can be revoked will increase.

How will the department of public health find out about grandfathered exemptions in 2020 and beyond, since SB 714 eliminated the CAIR reporting of these exemptions?

Two ways: I suspect many public schools will send all their students’ medical exemptions of otherwise healthy children to the state public health department, because I think most public schools do not want unvaccinated healthy but “medically fragile” children in their schools.

Second, I think the county public health department offices will go around to the schools and request to see the vaccine exemption records, despite the fact that it is not technically legal to do so absent very specific circumstances which do not normally exist.

My gut tells me that the state department of health under the direction of Charity Dean already has a plan for discovery all of these medical exemptions, and that we are in the early stages of implementation, with more serious efforts coming in 2020. But this is just my best guess based on some of the things I am hearing around the state from different sources.

Beyond the ability to revoke medical exemptions issued by physicians under board discipline, the department of public health has the ability to rescind exemptions that do not comply with the new law, meaning exemptions beyond CDC guidelines adapted by the various lettered organizations and consensus statements. However, that power appears to be limited to exemption letters written in 2020, and exemptions forms submitted in 2021 and beyond. It does not apply to pre-2020 exemptions which are commonly described as “grandfathered.” Under the current law, the only way a grandfathered exemption can be revoked is if the exemption writing physician is under board order as discussed above.

What about if your child is changing schools within a grade span? Will the medical exemption still be valid?

I have two things to say about that: First, there is nothing in the new law which states or implies that an exemption for a grade span becomes invalid upon changing schools. That the good news. The bad news is that I am hearing that some public schools are taking the position that exemptions are not valid if the child moves to a new public school. This position is another manifestation of the fact that the vaccine fragile medically exempt are not wanted in the public schools. At some point, this may end up in court, but until then, I would expect this to continue and increase in frequency.

What’s the bottom line?

Let’s compare and contrast the SB 276/714 situation to the implementation of SB 277’s removal of the PBE (personal belief exemption). There are still families who have valid PBEs because their children are still in the same grade span when these pre 2016 PBEs were filed. Other than entering a new checkpoint/ grade span, there was no way for the public health department to cancel a PBE.

Now, grandfathered medical exemptions can (and will) be revoked if the exemption writing physician is or goes under a board disciplinary order. More physicians will come under board order in the future, so many more exemptions will be subject to being revoked, and the public schools and the county public health departments will make sure that all of the exemptions written by the disciplined physicians find their way to the public health department (or the public schools on their own will simply reject these exemptions).

But even beyond that, public schools are starting to reject or not honor medical exemptions for the vaccine fragile, which actions I think will continue and increase. How long this process will take for any specific exemption to be rejected/revoked is impossible to say. But my guess is that the majority of grandfathered vaccine fragile based medical exemptions will eventually be revoked for kids in the early part of a grade span. So many or most of these families will need another plan, if they want to continue to decline vaccination. Right now, the only two options are home schooling and moving to another state. Of course, things could change, but the above is the most likely outcome, as I see it right now.

Rick Jaffe, Esq.

Cali. Medical Board Orders Ken Stoller’s license revoked as of March 18th 2021; We will appeal!

Cali. Medical Board Orders Ken Stoller’s license revoked as of March 18th 2021; We will appeal!

In an order dated February 16th, the Medical Board of California ordered the revocation of Ken Stoller’s medical license for writing 10 medical exemptions that did not comply with ACIP guidelines, and also for not requesting prior medical records for the patients, and using genetic testing information which was not considered scientifically proven.

The order goes into effect on March 18, 2021. We will, of course, appeal (technically called a writ of administrative mandate), most likely by the end of next week. We will also file a request for a stay of the order. We will know if we get the stay within a week or two of filing the stay request, if not sooner.

The Board adopted the ALJ’s proposed decision, and all I can say is that the hearing that Ken and I attended seemed to go a lot better than the one the judge heard. Basically, the judge accepted everything the UC Davis head of Pediatric Infectious Disease, Dr. Dean Blumberg said, that vaccines are proven safe and effective and are necessary for both the childrens’ sake and for the sake of everyone who comes in contact with them, and that it was an extreme departure not to follow the ACIP guidelines or have what he considered to be a valid scientifically established reason not to vaccinate these children. I suppose in the times such are they are, it is not a completely unexpected result.

Here is the decision. But,

Warning: if your child has a current medical exemption, reading the judge’s opinion may cause nausea and/or considerable outrage.


Those of you who heard all or some of the hearing, see how it lines up with your impressions.

The two big issues on the writ will of course be 1. that SB 277 gave Ken and other doctors the right to depart from ACIP/Red Book guidelines and use family history and genetic information to base broader than ACIP contraindications and precautions. The judge said little about that right in her proposed decision. The second main legal-based argument is that Bus. & Prof. Code. Section 2234.1 gives complementary and alternative physicians the right to provide minority view treatment and advice.

Here is what the statute says:

B&PC Section 2234.1

“A physician and surgeon shall not be subject to discipline pursuant to subdivision (b), (c), or (d) of Section 2234 solely on the basis that the treatment or advice he or she rendered to a patient is alternative or complementary medicine, including the treatment of persistent Lyme Disease, if that treatment or advice meets all of the following requirements:

“(1) It is provided after informed consent and a good-faith prior examination of the patient, and medical indication exists for the treatment or advice, or it is provided for health or well-being.

(2) It is provided after the physician and surgeon has given the patient information concerning conventional treatment and describing the education, experience, and credentials of the physician and surgeon related to the alternative or complementary medicine that he or she practices.

(3) In the case of alternative or complementary medicine, it does not cause a delay in, or discourage traditional diagnosis of, a condition of the patient.

(4) It does not cause death or serious bodily injury to the patient.

(b) For purposes of this section, “alternative or complementary medicine,” means those health care methods of diagnosis, treatment, or healing that are not generally used but that provide a reasonable potential for therapeutic gain in a patient’s medical condition that is not outweighed by the risk of the health care method.

(c) Since the National Institute of Medicine has reported that it can take up to 17 years for a new best practice to reach the average physician and surgeon, it is prudent to give attention to new developments not only in general medical care but in the actual treatment of specific diseases, particularly those that are not yet broadly recognized in California.”

I think the judge misread the statute (or read something into it which doesn’t exist, requirement-wise.) But you can decide for yourself.

These are issues of the first impression for the California appellate courts, so I would expect this case to at least make it to the court of appeals. There is no appeal as of right to the California Supreme Court in a case like this, but I would expect that the Supreme Court might well want to weigh in.

This is just the opening round of the first battle. There are a number of other physicians under investigation or under accusation for the same conduct, so this will continue on many fronts.

And regrettably, if the Board’s order is not stayed and goes into effect on March 18, 2021, then all of Dr. Stoller’s medical exemptions could be revoked under SB 276/714, formally via some process, or I suppose informally by the school notifying the family that the medical exemption is no longer valid in light of the board’s order. The community has seen many cases where schools just decide on their own not to honor exemptions in the case of the death of an exemption writing physician, or the child transferring schools within a grade span. So, expect schools to act on their own on this. (And sorry, no individual consultations on this. I will keep posting as we progress or as we receive feedback from the schools from the families who have Dr. Stoller’s medical exemptions.)

Rick Jaffe, Esq.