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Some further thoughts on the Upcoming Revocation of Medical Exemptions

Some further thoughts on the Upcoming Revocation of Medical Exemptions

I have received some very astute comments in response to my recent post which discussed appealing the revocation of your child’s medical exemption due to the disciplinary action against the ME writing physicians. The information has caused me to rethink what I presented (and didn’t present, for reasons I don’t want to make public) and I want to share some concerns, and give some more details than I had not originally planned on discussing in public.

The law seems to have boxed you folks in with no clear legal recourse and a Hobson choice of doing the catchup vaccine schedule, or home or online school.

First, the new law does allow for appeals of denied ME’s and there is some limited process, but it seems like the statute focuses on appeals of 2021 and later ME’s filed online. However, since the revocation of disciplined doctors subsection appears in the same section which says that all ME’s in this section are subject to appeal, intended or not, it seems like the statute grants a right to appeal.

But the question is, appeal what?

A school letter rejecting an ME because the ME writing doctor had been disciplined seems to limit the appeal to showing that the doctor had not been disciplined. Well, that’s not much help to you who have or will receive the school revocation letter.

Beyond that problem, even on the merits, it is abundantly clear that the CDPH does not and will not allow exemptions based on family history alone. And even prior AE’s are not going to be accepted (my view) unless they have been worked up by a health care professional. I don’t think a statement by a family member is going to support serious consideration of an ME, on the merits, even assuming you get that far. The reason is that we already know how the CDPH looks at these things; i.e., it’s the ACIP guidelines period. Technically the appeal is to the overagency of the CDPH, and I wouldn’t expect those folks to take a position different than the CDPH’s views.

While I did previously suggest requesting an appeal, there are downsides.

The downside of a straight appeal

1. First, as indicated, you can expect the CDPH to take the position that the only grounds for appealing the revocation of a ME based on physician discipline is that the physician was in fact not disciplined. I guess we will find out the answer to that if some of you file an appeal and hear back.

2. Second, once the California authorities has your child’s ME and the name of the physician who issued it, there is nothing stopping the agency from filing a complaint with the medical board based on the ME. Of course, the physician has already been disciplined (which is the reason your grandfathered ME has been revoked), but the board can keep on going after doctors and the doctor should expect that the matter will be investigated. I am aware of doctors on probation for ME writing who are still under investigation as the board receives more complaints. That is a bad thing for the doctor(s) obviously. The fact that your ME writing physician has been put on probation for writing ME’s doesn’t mean the board can’t and won’t pursue more investigations for the same conduct, even if it occurred prior to the physician’s discipline. There is no double jeopardy like principle for new cases of the same conduct.

3. I suppose the biggest downside of a straight appeal is that as suggested you already know what the CDPH is going to say, ME’s have to be based on contraindications and precautions, and there is no institutional recognition (by the CDPH or the medical board) of family history based ME’s or most of the AE’s your child might have had.

And of course, the really big thing is that the infectious disease institutions do not even recognize the concept of a permanent ME which applies to all vaccines. The only proper analysis for considering a permanent ME is vaccine by vaccine because the institutional view is that there since there is no one common element in every scheduled vaccine, it makes no sense to give a permanent ME for all vaccines. (It’s different with temporary ME’s which can be for all vaccines for things like cancer treatment which compromises the immune system.)

No doubt some of you might be feeling that the whole process is rigged and that you can’t get a fair hearing, and in fact technically you can’t get any hearing. It’s all done on submission of paperwork, and then some secret panel makes a decision.

What About My God-Given Constitutional Rights to Send My Unvaccinated kids to School?

I get this a lot, in emails and voicemails to my office (Sorry, I don’t return any of these calls. I am not set up to answer individual questions about your child’s ME’s and it gets tiresome frankly to keep on explaining the same basic law to parents over the phone. Instead, I answer these questions through my posts.)

Sorry, these issues were decided by the California courts in the SB 277 lawsuits. There is no federal or state constitutional or statutory right or education right to send your unvaccinated child to school because of your personal beliefs on vaccines or your opinions about your freedom to decide medical treatments for your children, or based on your rights to informed consent. That does not exist. In California, like I said all these issues were litigated between 2016 and 2018 with the challenges to SB 277.

There may be some kind of general right to a medical exemption, but so far, it looks like the state gets to say who gets them and the criteria to be used. There are open legal issues about whether physicians had the discretion to write ME’s beyond ACIP. So far, two administrative judges and two superior court judges have said they don’t (or close to it in a couple of different contexts). I am working on that very issue now with the Ken Stoller appeal, and an upcoming hearing for another physician which I will discuss in a post in the next day or two.

The point being, if you are pinning your hopes on the fact that some judge is going to tell your school that it has to accept your unvaccinated child back into school, I think that is unrealistic. In general, and certainly during a pandemic, judges are not the friends of the vaccine concerned, especially when they are making arguments that have already been rejected by the California courts (and basically all courts throughout the country, most notably and recently in New York).

Two thoughts

I do have two thoughts: Circling back to the unfair process which does not appear to allow for a hearing.

If you are going to submit an appeal, Ask if there is a written description of the process, including any policy statements or written guidelines for evaluating appeals, and if there are none, ask that they (the Health and Human Services) state in writing that there are no guidelines (other than ACIP), written statements or internal guidelines by which the validity of ME’s are judged.

Also maybe ask whether the CDPH will be following SB 277 which allows for family-based ME’s under the terms of the statute and if not and why not. Ask for a detailed explanation.

Ask for the names of the officials who will be making the determination and ask for a copy of their CV’s. Maybe if they refuse to provide that information, say in the absence of CDPH compliance, you are requesting that your case be sent over to the Office Of Administrative Hearings (There are four locations, San Diego, LA, Oakland, and Sacramento). I suppose that, notwithstanding the above, mentioning failure to do so might result in a lawsuit based on a denial of your procedural due process rights to have a fair and transparent process might not be inappropriate. (and please, resist your urge to talk about your rights to do what you want with your kids and send them to school unvaccinated, or your informed consent rights or that they are violating your Nuremberg Code rights. Save all that stuff for your FB posts). This is just about a fair process by which this important medical decision should be adjudicated.

Second thought: It’s convenient isn’t it how the schools via their notification letters are ducking the issue and declining to get involved by telling you to contact the CDPH. Don’t let them get away with that. Your child’s school is the institution that is barring your child from going back to school. The school is involved, bring them back into it.

Respond to the letter. Maybe tell them you want to appeal the school’s decision and what process does the school have to do so. If they do not, tell them that you want that in writing, that they are refusing to provide you with a direct appeal of the school’s decision to bar your child from their institution. Request a meeting with the school principal to discuss the denial of your appeal right and because your child has special circumstances beyond what the CDPH may not recognize. (I’ve gotten enough emails and VMs to know that all the ME’s are unique.) Make yourself and your child’s issues known to the school administration. Be polite and respectful of course, but this is obviously extremely important to you, so don’t be shy in conveying that. You looking for face-to-face time, or Zoom time (which will be recorded).

If anything is going to change the revocation decision, I think it is going to have to come from you and the community via push back against the CDPH and against the schools. Based on the above, it is surely a long shot, and all responsible parents should have a plan B (or actually probably a plan A, because this is really the hail mary of all hail mary’s). Might there be some possible action depending on how the CDPH reacts? I suppose, but the grounds would be very very narrow and process-based, and I can’t stress enough how much I think that judges just don’t see the issues the way you all do, so it would be a big parental mistake to hope that some judge is going to come to your rescue. As stated, if there is to be a rescue/reprive, it’s going to come from your own actions and push back.

Rick Jaffe, Esq.

Someone posted a comment to this post which you should read. It is someone familiar with the inner workings of state and local government and the background of the Governor’s involvement in SB 714.

Here is part of it: (compliment ommited, but it’s appreciated).

Just prior to this vaccination law being implemented, Newsome was against it. As a “compromise” Pan offered that Medical Exemptions would only revoked in areas where schools had less than 90% vaccinated students, but I believe Newsome thought that was still too restrictive and pushed for children with ME’s be able to finish their school (i.e. elementary grades, etc.) EXCEPT where the ME was written by a doctor who had been officially disciplined for “matters relating to vaccination exemptions”, and at least one newspaper at the time said that this was aimed at the only doctor with a disciplinary action on vaccinations, Sears. Unfortunately that was NOT how it was written, and I called my state assemblyman, my state senator, and Governor Newsom’s office, but never received a response. I was told at the time from all my friends it was the “intent” to only target Sears, but yet hear we are with as many as 10,000 children affected!

So at this point in time, when the majority of Americans (and Californians) supporting Covid Vaccinations, it is my opinion that somehow there needs to be a representation of 10,000 children who are summarily removed from public schools and use COVID findings to our benefit:

1. Studies on COVID are stating that we would achieve “herd immunity” if 70-80% of Americans are vaccinated. Coordinate that with why would we remove a child from public school what has in excess of 90% vaccination?

2. Studies of children now being “homeschooled” during the crisis show the damage to children is very great and our children are suffering until they get back into school. SO WHY THE HELL WOULD WE THROW 10,000 KIDS INTO SUBSTANDARD SCHOOLING WHEN THEIR SCHOOLS HAVE HERD IMMUNITY FROM THE DISEASES FOR WHICH THEY HAVE BEEN GIVEN HERD IMMUNITY.

So Mr. Jaffe, thanks for honestly saying the solution is not legal, but is in fact political. I don’t believe the Governor knows this what was adopted, but even if he does, he won’t want the parents and relatives of 10,000 harmed children angry during a recall election.”

Thx Gary! good info.

If any of you know the Governor or someone in his inner circle, now would be an excellent time to make him/them aware of the plight facing many thousands of families this coming school year.