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Under Revised SB 276, public health staff still make the final medical vaccine exemption decisions, and they still will reject all broader than CDC guideline-based exemptions

Under Revised SB 276, public health staff still make the final medical vaccine exemption decisions, and they still will reject all broader than CDC guideline-based exemptions

Until the June 17th Amendment, the biggest knock against SB 276 was that it put medical vaccine exemptions decisions in the hands of state public health officials. That even bothered the Governor (for one day anyway), and it seems to be concerning to the members of the Medical Board.

The revised bill creates the illusion of fixing that problem, by allowing physicians to submit what is called a “vaccine exemption certification” which on its face purports to be an operational exemption from vaccines. But it really isn’t. None of the exemptions written beyond CDC guidelines will go into effect, because the revised bill allows low level public health staff to review any medical exemption and rescind it if doesn’t comport with CDC guidelines.

Here is how it works under the proposed bill and why none of the medical exemption certifications based on broader than CDC contraindications will survive (and neither will the physicians who are brave enough to write them).

After an exemption certification is filed (under penalties of perjury), it can be reviewed at any time by a health official per:

“(8) Notwithstanding any other provision of this subdivision, a clinically trained immunization program staff member may review any exemption in the CAIR as necessary to protect public health.”

Assuming there are any physicians still writing exemptions when the bill’s proposed mechanism comes into effect on January 1, 2021 (and I don’t think there will be, because the elimination of these physicians is the real purpose of the amended bill), these exemption writing physicians are known and will be red flagged by the “clinically trained immunization program staff member” (notice it doesn’t say a licensed medical doctor).

What are these clinically trained folks looking for? The bill spells it out:

“(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.”

How will the public health department evaluate the additional information concerning non-compliant CDC et al based exemptions?

“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.”

I do not think these clinically trained staff will conclude that there is sufficient “written documentation” to support these broader than CDC exemptions under the conventional standard of care employed by most physicians, and hence, all these exemptions will be denied.

The good news (tacticly) is that this subsection makes it clear that the ultimately authority on medical exemptions is the public health department, based on the “medical discretion” of these low level staffers.

THAT DOES NOT SOLVE THE PROBLEM WHICH PRECIPITATED THE AMENDMENT, NAMELY THAT STATE EMPLOYEES ARE MAKING THESE DISCRETIONARY VACCINE EXEMPTION DECISIONS, NOT THE PHYSICIAN WHO HAS A DOCTOR/PATIENT RELATIONSHIP.

AND THAT IS WHY THE BILL IS STILL FATALLY FLAWED AND SHOULD BE REJECTED BY THE ASSEMBLY.

And by the way, there are really two standards of care for vaccine medical exemptions

My view is that there are two standards of care for medical vaccine exemption, the conventional one, which I understand this subsection is referring to, and an alternative standard of care, which is used by the exemption writing physicians under attack. This alternative standard of care was endorsed by Senator Pan in his push to pass SB 277 (See my prior post discussing what he said: http://rickjaffeesq.com/2019/05/11/remembering-what-the-politicians-said-about-the-scope-of-medical-exemptions-under-sb-277/.

Moreover (and as discussed in a bit), an alternative standard of care is recognized by California physician regulation law.

In my case against the San Francisco City Attorney, I am asking the court to recognize the right of people like you to receive a vaccine medical exemption based on this alternative standard of care, but it might be a good thing to bring up at the hearing tomorrow.

To avoid you having to wade through my 30-page complaint, here’s what I said:

“FIFTH CAUSE OF ACTION
DECLARATORY JUDGEMENT THAT PATIENTS HAVE A STATE STATUTORY AND CONSTITUTIONAL RIGHT TO OBTAIN A MEDICAL EXEMPTION BASED ON AN ALTERNATIVE STANDARD OF CARE

1. Plaintiff repeats and realleges the allegations set forth in paragraphs 1 – 73 above.
2. California citizens have a right to receive unconventional medical care and advice from California licensed physicians Bus. & Prof. Code section 2234.1, and that includes medical advice and services concerning childhood vaccines. The rationale being, per Section 2234.1(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.”
3. Therefore, there are certainly no shortage of physicians critical of using family history and genetic associations to grant medical exemptions because using information beyond CDC guidelines has not gained consensus status, and the science is not settled on identifying children vulnerable to adverse events.
4. Plaintiff seeks a declaratory judgment that the patients of Dr. Stoller, and the patients of other like-minded physicians, have a right to receive a vaccine medical exemption based on an alternative standard of medical exemptions beyond CDC guidelines, under Bus. & Prof. Code 2234.1 and a state constitution right. cf Schloendorff v. NY Hospital, 211 NY 125, 105 NE.102 1914 (J. Cardoza) (overruled on other grounds Bing. V. Thunig 2 NYS 656, 143 NE2d 3, (1957) (New York citizens have a privacy right to control their own bodies); Schneider v Revici 817 F.2d 987 (2nd Cir. 1987). (Acknowledging a patient’s right to receive unconventional medical treatment).
5. Dr. Stoller will demonstrate that the alternative vaccine standard of care which he uses (and again which had been endorsed by Senator Pan in SB 277) is safer and creates less of a risk of serious harm and permanent injury for children than the CDC guideline based standard of care, which further justifies the Court recognizing the patients’ right to obtain medical exemptions under this alternative standard of care, notwithstanding any current or future law to the contrary.
6. Plaintiff also seeks a declaratory judgment that based on the existing scientific research, and evidence of wrongdoing, including the suppression of vaccine injury findings, and the intimidation of physicians and researchers, the alternative standard of care for vaccine exemption is safer for children than the CDC guidelines.”

Maybe some of you should make this point at the hearing tomorrow, and in your communications to the Assembly

IN SHORT

When you look at it closely, the revised bill just doesn’t solve the fundamental problem, which even the Governor and Medical Board recognize, namely that vaccine medical exemptions are ultimately made by state public health officials exercising their medical discretion, and that should not happen. It must be the physician who has a doctor/patient relationship who has the final say. END OF STORY.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

SB 276 new amendment filed. It was a head fake not a curve ball/tactical retreat benefiting Current Exemptees: Sceptics 1, Hypocrite accusers 0, People (like me) who were relieved and grateful 0

SB 276 new amendment filed. It was a head fake not a curve ball/tactical retreat benefiting Current Exemptees: Sceptics 1, Hypocrite accusers 0, People (like me) who were relieved and grateful 0

As most of you already know, Senator Pan’s amendment was filed yesterday afternoon, May 17th. Here it is.

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB276

Unfortunately, it doesn’t protect the children with current exemptions (or it does, if you’re in the mainstream). Friends and commenters have correctly analyzed the bill. No sense reinventing the wheel on this. Here is some of new bill language, related by one commentator:

There is no “grandfathering” in the amended text:
(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, as specified in paragraph (1) of subdivision (a), the State Public Health Officer or local public health officer may revoke the medical exemption.

Here is the skinny on the amendment from one popular professional source:

So, obviously the rumors about grandfathering in existing VMEs were FALSE. The amendment language simply states that CDPH isn’t required to review or approve old exemptions, BUT they still CAN if they decide to. Doctors and their patients will still have to re-submit all older exemptions into the NEW SYSTEM, and part of the new system is a CONSENT for the release of medical records to the medical board. This will open up ALL old medical exemptions to medical board investigation. HOWEVER, doctors can only submit an old exemption if there is a contraindication or precaution, which 99.9% of them won’t have, so doctors won’t be able to re-submit these. If a doctor doesn’t re-submit the old exemption, then it becomes invalid Dec 31, 2020. And they can’t re-submit without a contra or precaution. Any that they DO submit will be investigated by the medical board. It’s totally bogus, and actually has made the bill WORSE, not better.

So, where are we?

Back to where the bill was before the May 17th amendment:
Under SB 276, there will not be any medical exemptions beyond CDC contraindication and CDC precautions, and expect that all current exemptions will be voided by the state or local health officials.

I have to give credit to Senator Pan. He is a very skilled politician. He knew what he had to do to get his bill through the appropriations committee, and did it by creating the illusion of a tactical retreat which suggested that there would be less of a financial impact than the critics stated. And he did it without making any tactical retreat whatsoever, and without changing the underlying economic costs of the bill. I’m sure you all hate it, but for better and worse, that’s politics.

Senator Pan is doing his job very effectively. Time for you all to move on to the next phase of the battle and be effective.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com