My post yesterday which shared the CDPH communication to the California schools revoking all medical exemptions written by physicians who have been disciplined by the medical board has sparked outrage, confusion, and questions. I think it might be helpful (though regrettably not satisfying) to give you some perspective as someone who has been litigating these issues for the last few years. I think some of the facts you might not know or might have forgotten.
1. You have been living on borrowed time and that time may be up for most MEs by the beginning of the next school year.
Some perspective: Under the original and final version of SB 276, grandfathered ME’s were required to be filed with the CDPH by July 1, 2020, and they all were subject to review and revocation if they didn’t meet conventional standards, which none of them did/do (in my view anyway). Here is my post from 2019 describing SB 276. https://rickjaffeesq.com/2019/03/30/memo-to-cali-parents-of-currently-vaccine-medically-exempt-children-what-happens-if-sb-276-becomes-law/ . Here is the quote from SB 276 which says it all:
“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.”
As I said in my post, under SB 276 prior MEs written beyond ACIP guidelines (and that means essentially every single one of them for the children of those reading this post) were or would have been over/done/toast under SB 276. It was just a matter of time of how long it would take for some authority to revoke them, (under SB 276).
However, because of the public outcry you folks managed to direct towards Governor Newsom, right before the end of the legislative session, he blinked and forced Senator Pan and his allies to soften the blow. One of the most important concessions he extracted was removing the requirement that grandfathered ME’s had to be filed with the CDPH. That was a big thing and a big win because – though you might forget it now – many of you had privacy concerns about filing your child’s ME, and you vowed that you would not do it, even if it meant that your child’s ME would not be effective.
The other bigger thing was removing the CDPH’s power to review and revoke these non ACIP compliant ME’s. That was huge, and in effect created a grandfathered status to these MEs. That was a bitter pill to swallow by SB 276’s proponents and bought some extra time for some of these MEs.
The tradeoff was a new provision (in the companion bill, SB 714, companion bill because it was too late to amend SB 276). The new provision provided that grandfathered MEs written by physicians who had been disciplined FOR ANY REASON would be revoked.
But there was a technical/practical problem with that compromise solution arising from the fact that the CDPH didn’t have access to these MEs the way it did under SB 276. The solution CDPH came up with was issuing its recent letter to the schools revoking all the MEs written by disciplined docs and attaching a list of every doctor who had ever been disciplined by the medical or osteopathic board for any reason since who knows when and including dead doctors and doctors who do not even practice in California but maintain California licensure (and the latter being more of an assumption on my part).
My point is that under SB 276 I think all of your non-ACIP MEs would have been revoked by the beginning of the 2020-21 school year. Under SB 714, and perhaps to lessen the impact of its decision, the CDPH is revoking MEs as of the 2021-2022 school year, but it is only revoking those MEs written by disciplined doctors. And that leads to my second point of perspective and it’s a mixed bag.
2. The 92-page list of disciplined doctors is meaningless and not worthy of your outrage
FYI: I represent quite a few doctors under investigation or who have been charged by the board for misconduct for writing non ACIP ME’s. I am also familiar with some of the other investigations and charged cases. I also work with people who have very close contact with California physicians who are vaccine concerned and have written MEs. Without going into details, I think the overwhelming majority of MEs were written by a very, very small number of California physicians, especially the MEs written based solely on family history (and not ongoing medical or developmental problems). I would further say that most of these MEs were written by someone other than the child’s PCP (or sole PCP).
What I am getting at is the fact that there are 92 pages of doctor names or 8500 names on the list is unimportant because there are only a handful or two of physicians who have written all or almost all of these non-ACIP MEs. Beyond that, I will obliquely say that if your child’s ME was not written by his/her PCP and you found your ME writing physician through some parental online social media platform, chances are the doctor who wrote that ME is under an investigation even if you do not know it, because investigations are confidential until either an accusation is filed by the board, or the board has to go to court to obtain medical records. The point being, you are likely not to know if your ME writing physician is under investigation absent these two legal and public events.
And now a piece of perspective that some of you will like
Every one of my cases and investigations involve an MD. I do not have a single ME case involving a DO (which is not to say there are no other lawyers handling investigations for DO’s because I know there are). I am not aware of any DO’s who have been disciplined by the DO board for writing MEs. I am aware of at least one investigation by the DO board and it closed the case based on facts that would have caused the Medical Board to have filed charges. I tentatively and cautiously conclude that the DO board is more open-minded than the Medical Board on this issue. If so, then it looks to me that if your child’s ME was written by a DO, you have a much better chance of it staying in effect throughout the grade span.
And let’s clear up some confusion about why all disciplined docs are having their MEs revoked.
Commenters to the prior post wondered why the MEs of physicians who had been disciplined for reasons other than vaccine exemption writing are being revoked because they think the statute requires that the discipline be related to vaccines. Unfortunately, that is not the case, but it could appear confusing because of the not ideal structure and order of the law.
The simple of it is that all grandfathered MEs written by a physician who has been disciplined for any reason can be and now will be revoked as of the 2021-2022 school year. Here is the applicable language from Health & Safety Code Section 120272:
“(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.”
For new medical exemptions (ie those submitted through online forms) it’s a little different. Here are the operative provisions:
“(B) If there is a pending accusation against a physician and surgeon with the Medical Board of California or the Osteopathic Medical Board of California relating to immunization standards of care, the department shall not accept a medical exemption form from the physician and surgeon unless and until the accusation is resolved in favor of the physician and surgeon.
(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”
I think these statutory provisions are relatively clear.
So is there really nothing that can be done to protect these MEs or at least delay the revocation or enforcement, Really?
(hint: this is the part which you should pay close attention to.)
Such was a question posed in a comment to my post yesterday, and it caused me to go over the situation again and again in my mind. The good of it is that the SB 276/714 was a rush job and rush jobs sometimes create headaches for the sponsors down the road, witness the above with the revocation of MEs from disciplined docs.
Let me just obliquely say that I think the statute has some structural problems and that in some cases, what is said is not what might not have been meant, and what is said may lead to unintended or unthought-of opportunities.
I have every reason to believe that these issues will surface prior to the effective date of the CDPH’s revocation letter. I believe that these issues, concerns, and opportunities will surface in a multifaceted approach involving administrative and civil procedure vehicles and with public social media and direct-to-school participatory efforts.
That would be the hope and the plan anyway. There would or could be a lot of moving pieces to set up, but my sense is that the community is up for the task. We still need to see a couple more pieces put on the board by the other side, but they are coming, (and if they don’t then that’s even better).
The point is that I think me and some of my friends and colleagues (i.e., the usual suspects) may have another move for the families who have MEs from disciplined doctors, and it should come around the time of the attempted enforcement of the revocation order, and it might possibly slow things down and maybe even lead to good things.
Rick Jaffe, Esq.