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Cali. SB 276 moves to eliminate physician medical exemptions, but hey numb nuts, there’s a reason they’re called “medical exemptions”

Cali. SB 276 moves to eliminate physician medical exemptions, but hey numb nuts, there’s a reason they’re called “medical exemptions”

Last night, March 25, 2019, California Senator Richard Pan’s office dropped his new bill, SB 276 correcting what he has described as the rampant unjustified/fraudulent medical vaccine exemptions being written by some physicians.

His solution is to have public health officers approve or reject medical exemption “requests” submitted by physicians. The bill also establishes the criteria for medical exemptions, and there’s no surprise here: CDC contraindications, roughly, the package insert contraindications for each vaccine.

I think that would make California the toughest state in the country to obtain medical exemptions, and perhaps the only state where exemptions are actually granted or denied by state officials (but more about that later).

Here is how the legislation is explained in the bill:

“This bill would . . .require the State Department of Public Health to develop and make available for use by licensed physicians and surgeons a statewide standardized medical exemption request form, which would be the only medical exemption documentation that a governing authority may accept.
The bill would require the State Public Health Officer or the public health officer’s designee to approve or deny a medical exemption request, upon determining that the request provides sufficient medical evidence that the immunization is contraindicated by guidelines of the federal Centers of Disease Control and Prevention (CDC).”
(emphasis added).

The bottom line is that under the bill, physicians no longer write medical exemptions; they fill out form applications/requests for a medical exemption which are decided by officials of the Department of Health, and only CDC contraindications will be accepted as a basis for a medical exemption.

Here is the bill:

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

But it gets better!

If you already have an exemption for your child, you need to submit a copy of it to state officials who will review the previously obtained exemption under the same CDC criteria, and they will revoke it unless it is consistent with CDC contraindications.

It is interesting to note that the contraindications standard for exemption writing was in the original SB 277, but it was eventually replaced with a more general standard including consideration of family history, probably due to public uproar and/or as a way to placate anyone with any concerns about vaccines.

Given all the recorded legislative history surrounding the passage of SB 277, it’s going to be interesting to see how Senator Pan and others explain away some of their past statements regarding the importance of family history in a vaccine exemption analysis, since it’s not really a big part of the CDC contraindications (and that’s an understatement).

My view is that practically speaking, if this becomes law, unless a child has had a documented prior serious adverse event (SAE) associated with a vaccine, there won’t be any type of medical exemption in that child’s future.

Furthermore, even for those with a prior documented SAE, the exemption will based on each vaccine’s contraindication, and the exemption will only cover the specific vaccine or vaccine group which was associated with the SAE. I don’t see how a healthy child would qualify for an exemption from all childhood vaccines throughout childhood, at least under the CDC contraindications.

BUT DON’T CALL YOUR MOVING COMPANY JUST YET

There’s a problem which I’ll explain via a few riddles.

1. What do you call a state official who rejects a physician’s request for a medical exemption?

A future felon (or misdemeanant), unless he/she has a California medical license, because the decision to grant or deny a vaccine exemption is a
medical decision and medical decisions can only be made by physicians (or some other licensed health care practitioner operating within the scope
of practice of that license). Otherwise it’s the unauthorized practice of medicine which can either be a felony or a misdameanor. I know about this
becasue I’ve handled many of these cases, mostly in California. See Chapter 7 of Galileo’s Lawyer for one of them).

2. What do you call a state public health official with a California medical license who has denied 5,000 exemptions?

Two things:
A defendant in 5,000 medical malpractice lawsuits.
The subject of 5,000 medical board complaints for making a medical determination without a valid doctor/patient relationship which almost always
requires a face-
to-face patient encounter.

3. What do you call the many Deputy Attorney Generals representing these public health officials?
Overworked.

4. What’s a good descriptive name for SB 276?

The California Lawyers’ Full Employment Act of 2019.
(And that’s coming from a guy who mostly doesn’t believe in filing vaccine lawsuits. See http://rickjaffeesq.com/2019/03/21/the-smartest-thing-the-vaccine-
concerned-have- done-recently-or-maybe-ever/
)

Hey numb nuts, there’s a reason they’re called “medical exemptions.”

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

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.
http://rickjaffeesq.com/2019/02/16/to-my-vaccine-concerned-friends-stop-saying-that-the-supreme-court-decided-that-vaccines-are-unavoidably-unsafe-it-didnt/

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), https://www.cdc.gov/nchs/data/nvsr/nvsr67/nvsr67_08- 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.
rickjaffeesquire@gmail.com

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.

HERE IS THE GOSPEL ACCORDING TO THE CDC:

“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”
https://www.cdc.gov/vaccines/vpd/should-not-vacc.html”

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.
https://www.cdc.gov/vaccines/vpd/should-not-vacc.html

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.
Rickjaffeesquire@gmail.com

Where is the California Medical Board’s Outrage over SB 276?

Where is the California Medical Board’s Outrage over SB 276?

Unless you follow general health care issues, you might have missed the outrage expressed by the head of the California Insurance Commission, when it came out that nurses rather than doctors were making insurance coverage decisions about expensive medical procedures, and for high cost procedures, denial of coverage means denial of care.

Here is an article explaining it.

https://www.newsmax.com/thewire/aetna-medical-director-nurses-decide/2018/02/12/id/842821/

At least Aetna had nurses reviewing the medical records before they denied coverage (FYI: I hate health insurance companies. See Chapter 2 my book for why)

SB 276 is even worse.

First, the bill doesn’t require that the public health official rejecting or revoking the exemption has to be a doctor, a nurse or even a witch doctor. Second, medical records aren’t reviewed, just an application.

As I’ve previously stated, there is a reason they’re called medical exemptions. See http://rickjaffeesq.com/2019/03/26/cali-sb-276-moves-to-eliminate-physician-medical-exemptions-but-hey-numb-nuts-theres-a-reason-theyre-called-medical-exemptions/

Could it possibly be because the decision involves making a medical judgement about whether, for example, a close relative’s family history of an autoimmune disease suggests that the risks of continued vaccination might outweigh the benefits?

Isn’t it a shame that we don’t have experts to study these issues on individual cases?

But of course, we do; they’re called medical doctors, and to reiterate, SB 276 doesn’t require these medical decisions to be made by physicians or even nurses.

Based on the Insurance Commissioner’s outrage when it came out that medical doctors were not making coverage decisions, I’m not understanding why the medical board sits silently. How can it accept a law which doesn’t require its licensees to make decisions which could severely injure children.
I exaggerate you think?

A few posts ago, I quoted from a recent appellate court judge’s dissent in the affirmance of the denial of compensation by the vaccine court The case is Oliver v HHS and Judge Newman’s words and his quote from the legislative history should be repeated to the medical board and legislators who consider SB 276.

“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″
(emphasis added; footnotes omitted).
Here is the decision again. If you haven’t read it, you should.

Decision – 2019 – oliver – scn1a – dissent in fed cir – 17-2540.Order.1-9-2019.1

So back in 1983 Congress acknowledged that 20,000 kids would suffer grave injury and permanent disability from vaccines. And that was when kids got seven vaccines in 20 shots, now the number is between 69 and 74 shots.

And this is big: We know a little (or actually a lot) more about predicting who might become vaccine injured than we did in 1983.

And who might these people be who might have that knowledge?

It’s not a trick question.

It’s the physicians. It’s not public health officials.

Let’s go sideways to consider something else:

What about all these fake SB277 medical exemptions?

Unless I’ve been in a catatonic trance these last three years and missed basically everything, as of today, April 9, 2019,
there has not been a single board adjudication that any SB 277 exemption has been unjustified, false or fraudulent and I repeat, not one. (The one board case which did involve vaccines was a consent order for Bob Sears, but that was a custody, litigation-related letter he wrote for a non-school age child prior to the enactment of SB 277.)

So, there is no evidence that there have been even a single fraudulent or incorrect SB 277 medical exemption written by a California physician.

What is the purported evidence that is the basis of SB 276?

The fact that the medical exemption rate has gone up three or four times, from under a thousand prior to SB 277 to around 4,000 in 2018. The assumption is that the difference is parents switching from PBE’s (personal belief exemptions) to medical exemptions.

What’s the evidence for that? Maybe I’m still catatonic, but I haven’t heard any. There’s no data, just the raw numbers.

Let’s assume for the sake of argument that the unsupported assumption is true, namely that every child who had a PBE is now under a medical exemption and that’s why the numbers went up by a few thousand (and that’s not a big number relative to the size of the state. I’ve heard it went from 0.2 to 0.7 percent of school age kids.) That still doesn’t prove anything to anyone who understands what the word proof or evidence means.

How do the SB 276 authors know that all these kids didn’t have family history issues exemptable under SB 277, but the families didn’t need to get the medical exemption before SB 277, and only sought it out as a result of 277? How do the legislators know that’s not the case? There’s no data. It’s just a second level assumption.

So, let’s tie these two threads together:

We know to a congressional certainty that vaccines will seriously harm and permanently injury tens of thousands of children nationally. But we have some information that we didn’t have thirty-five years ago, about which kids might be most likely to be gravely injured and permanently disabled.
The professionals who have that information and make similar medical decisions all day, every day are …. Hey, it’s not a hard question ….

Right, it’s the doctors.

But doctors won’t be able to make that decisions because the number of medical exemptions went up by one half of one percentage point. And that in spite of the fact that there’s not a single confirmed case of a fraudulent 277 medical exemption.
And from all that you get what? Doctors can’t be trusted to decide on medical exemptions?

Maybe it’s just me, but I’m not seeing how that makes any sense. (common or even regulatory sense, the half-witted, “special” brother of common sense) I’m also not understanding why the California Medical Board isn’t jumping up and down, or at least quietly telling the legislators, that they are going too far on this one.

Here’s hoping for some well-deserved outrage from the regulators. But maybe I’m being overly optimistic.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

To the Cali SB 276 Opponents: Go Big and Go Smart, or Move out of State

To the Cali SB 276 Opponents: Go Big and Go Smart, or Move out of State

I saw some Facebook video clips from the Sacramento anti-SB 276 rally which took place yesterday, April 10, 2019. The hundreds of participants seemed highly motivated. The speakers which included Rock Star Del Big Tree and RFKJr, (who I consider the brightest and most cogent star in the Vaccine Concerned firmament) was also there I’ve heard.

Del is broadcasting today, and has some other heavyweight movement leaders. It is certainly democracy at work.

I have a question for the anti-276 leaders, and some observations.

How different is what you’re doing now from what you did against SB 277? The obvious reason I ask is that if it’s not that different, and you lost on 277, maybe you need to think about what more it would take to have a different outcome.

Some Observations

I have some observations based on things I’ve seen in political heath freedom activism from the 1980’s. IMO, the most effective health political movement I’ve ever seen were the AIDS activist group Act-Up. (Actually, now Goldwater Institute which has brought you right-to-try might be as or more effective, but I have a feeling these folks have some serious cha-ching behind them, unlike ACT-Up which was grass roots.)

I’ll get back to ACT-UP in a minute, but first a couple things you won’t like to hear.

Liking, emojiing and sharing things on Facebook and other social platforms with your circle of friends is not political activism. It might feel good and it might feel like you’re doing something meaningful, but unless all this social media chatter is going to lead to some tangible political action, in my (perhaps, not so) humble opinion, it’s just a bunch of digital hot air shot out into the infinite internet space.

The problem is that you all have closed social circles and you don’t reach anyone who matters. Another way of putting it, you’re just preaching liking/sharing to the converted/committed/choir.

Unless all this hot air is focused on a specific practical plan, directed at who matters, your feel good button clicking, and small-time protests, is no more than small-time collective self-pleasuring.

So, who matters?

That’s easy. If there are Senate health committee members still in play, they matter the most.
Next, the rest of the Senate and the other house matter.
That’s sort of obvious, but, every single thing you folks do should be aimed at influencing those dozens of people who are the only people who matter.

A corollary is that if you’re not trying to repeatedly and directly influence these select group of people, you’re not in the game, as good as you might feel about what you’re doing.

And ultimately that means one of two things: Boots on the ground in Sacramento AND at their local legislative offices, or massive, and I mean stupid massive communications efforts directed at these folks.

Some history

Back in the mid 80’s, when I first started working the health freedom legal beat, I saw up close and was peripherally involved consulting with the ACT-UP folks. They were smart, and very committed. It was easy for them to be so since some were dying of AIDS, some were HIV positive and the rest knew or feared they would get it.

President Reagan wouldn’t even acknowledge the problem and the FDA was stopping people at the border from bringing in potentially life saving medications. So, these dying gays decided to do something about it. They picked a day and they effectively shut down the FDA via a phone barrage, and a lot of protests. They became too big of a problem to avoid. Reagan acknowledged the problem and started throwing money at it. The FDA relented and loosened up its rules on personal importation of unapproved drugs, and in my view, it was all because of the dying and HIV gay activists They didn’t have time to do whatever was the equivalent of Facebook liking and emojing. They acted in a big way.

I’m not suggesting that you close the Sacramento Legislature down by a massive protest. What I am suggesting is that you don’t confuse social media work with actual political work. I would venture a guess that few if any of the people you need to influence are your Facebook friends. So sure, rile yourselves up, but have an actual political plan, and that means boots on the ground and calls and emails and stupid big numbers.

And let’s talk numbers

My view, which you won’t like, is that having hundreds of people protesting yesterday might have felt good for the participants, but from my office two blocks away from the Capital I used to see protests all the time there, busloads full of people. So regrettably and respectfully, I think you folks are deluding yourselves if you think that 500 or 800 people protesting on an issue is going to have a meaning impact in a state like California. Furthermore, I think having legislators receiving dozens or even a hundred calls is equally meaningless in the grand scheme of California politics, especially on a super-hot button polarizing issue like this, where frankly you are a very, very small minority.

I recall hearing that there were three to four hundred thousand signatures on the SB 277 recall referendum. Somewhere between yesterday’s few hundred protestors and the recall number is what I would call the threshold of effectiveness, but it’s not in the order of magnitude of the yesterday’s feel good effort.

Some of you might be thinking, “Ok big talker about the good-old-days, smarty pants, so what should we do?
Fair question (if somewhat harsh).

I do have a small suggestion, but first another critical observation.

Another thing which feels good, but I question the efficacy of are legislative hearings.
It’s really fun and rewarding to assemble like-minded folk and testify, but on a hot button issue like that, I sort of doubt that experts, or even the brightest star have much of an impact on most legislators under normal circumstances. These legislative folks are all about keeping their jobs, and that just means numbers.

I think that clear and cogent arguments, like those made by RFKJr and the Janis Joplin like super VC rock star Toni Bark will be better received with the right attitude adjustment inputs before the hearing.

For example, they might be more focused, if on the afternoon before the hearing, April 23, 2019, say from 2-5 PM, every recall petition signer called and visited their legislators to let them know their views. Email is ok too, but only in addition to calls and visits.

And here’s the thing, why should the calls only come from the California VC? If the California legislators get away with taking away physician medical exemptions here, you think other states won’t try the same thing? Maybe this should be a national effort, April 23, 2019 being the California day kick-off.

I’m not a VC organizer activist, but if I were, I’d give some hard thought to having every vaccine concerned person in the country give the California legislators a piece of their minds on April 23, 2019 in the afternoon, and maybe, just maybe, that might help the VC rock stars do their job.

To adapt a common phrase: Go Big and Go Smart, or Move out of State.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

The Other Part of How to Win the Cali SB 276 battle (and what’s not going to work)

The Other Part of How to Win the Cali SB 276 battle (and what’s not going to work)

My last post “Go Big and Go Smart or Move Out of State”
generated some sharp disagreements (at least on my Facebook page), but that’s not a bad thing. These issues need to be discussed, but quickly, so that action isn’t delayed.
here is that post:
http://rickjaffeesq.com/2019/04/11/to-the-cali-sb-276-opponents-go-big-and-go-smart-or-move-out-of-state/

One criticism I got is don’t piss-off the legislators; they won’t like you. My guess is that most of the legislators already think you’re a bunch of anti vax wackos, so I wouldn’t worry too much about trying to win any popularity contests. And there’s a difference between trying to pass and kill a bill.

One comment I received raised something I haven’t mentioned in public, but which I have talked about with movement leaders, and it is another part of how to increase the chances of defeating SB 276, and that of course is:

Go small, quiet and personal

The California Legislature has 80 Assembly members and 40 Senators. Per the previous post, they matter, big time. But there are other people who matter. Each legislator has a chief of staff, at least one policy person, they all have a secretary/personal assistant, and there’s someone in charge of the legislators’ home office. That’s another roughly 500 people who also matter. If any legislator is going to agree to vote down 276, he/she will need some internal support/cajoling from the staff. So, think about reaching out to these folks also.

Let’s think numbers and connections

Let’s define the VC universe as roughly the three to four hundred thousand people who signed the SB 277 recall petition.

Let’s analogize from the 6 degrees of separation between any two random people. I have to believe that there have to be at least a couple hundred people in the vaccine concerned universe who know personally, or know someone who knows personally, one of the 120 legislators, or their 500 closest aides. Obviously, if your one of those people who knows one of these folks, for sure make the call and do what you can, and see if you can arrange a meeting with someone from the VC groups. Maybe you don’t know one of them, but maybe someone you know (outside of the vaccine concerned world) does. Personal contact with close staff surely matters.

And it’s a two-way street.
Information in, and information/intelligence back about what’s happening in the inside. You never know, there might be a smoking gun/game changer fact or memo/letter somewhere. I can’t tell you what it is, but like they say, you’ll know it when you see it.

What’s not going to work

You can forget about having doctors coming out in mass against SB 276. The CMA and the AAP are in favor of the bill, probably because most of their members who are involved in vaccination are afflicted with PCDS.

You all know what that is, but are probably not familiar with this soon-to-be proposed technical name for this disorder: Practitioner Cognitive Dissonance Syndrome. It affects pediatricians because their lifestyle income (as opposed to their professional wage) comes from vaccines, either directly or through insurance incentives. Take vaccines out of a pediatricians’ practice, and they’d be leasing Subaru’s rather than Mercedes and BMW’s, and they’d be saying good-bye to the other accoutrements of wealthy professionals. Besides, most of them are probably tired of explaining to you that they’re not going to write exemptions for your kids because they are convinced that vaccines are safe and that there is no credible evidence that it causes autism or even heartburn.

Circling back: reach out and find people who know these 500 and get to work, but do it quickly!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

The Mother of All Anti-SB 276 Letters

The Mother of All Anti-SB 276 Letters

If you want to read the mother of all anti-276 letters, here it is from my friend and colleague Greg Glaser, Esq. When I have a question about vaccines, he’s the guy I call.

Glaser Letter Opposing SB 276

It’s long but really worth it. nuf said.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

My Letter to the Cali Senate Appropriations Committee Members

My Letter to the Cali Senate Appropriations Committee Members

I heard Senator Pan testify last week for the Health Committee. I think he was wrong in telling the Committee that the Medical Board is having difficuty pursuing physicians who are writing “fake” medical exemptions. so I decided to tell the Appropriation Committee members why.

Here’s my letter:

senatorletter

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

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.

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

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.
rickjaffeesquire@gmail.com

What Happens if Cali. SB 276 Becomes Law?

What Happens if Cali. SB 276 Becomes Law?

Let’s face it, there are strong rumblings that the Dems are lined-up behind SB 276 in the Senate Appropriations Committee and in both houses in general.

That’s bad news for the vaccine concerned whose kids either have or will seek a medical exemption from all childhood vaccines. Basically, under CDC/AAP/AAFP guidelines, there is no such thing as an exemption from all childhood vaccines throughout the duration of childhood, at least not for otherwise healthy kids. And you can forget about the whole fragile child or vaccine fragile child thing. It doesn’t exist in CDC land.

What exists are CDC recognized contraindications (and you can list those on one hand, with a couple fingers left over). The amended bill adds CDC recognized vaccine precautions, some of which may come from vaccine package inserts. Here is the CDC’s list of contraindications and precautions.
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.pdf But vaccine precautions will not get the vaccine concerned an all-vaccination exemption throughout childhood.

Under the bill’s timetable, Current exemptees will get through the first part of the 2020-2021 school year, but I predict many will have their exemptions rescinded in the first few months of 2021. There may be eight or nine thousand exemptions which will be filed (or more). My guess is that the district health officials, rather than state officials will do the revocations, so the revocation workload will be spread around the state. Supposedly, there will be an internal review/appeal process, presumably by state health officials.

Sounds pretty bleak and it is, but let’s just play this out, get into the weeds of how this is likely to work, and explore possible legal remedies, few and relatively weak though they may be.

But before that, let me answer some questions I’ve received from comments to my posts and via email. (Sorry but I can’t answer most of the emails I get regarding the law and possible legal strategies. I deal with these inquires via my posts.)

1. Can you judicially stop the legislative process from passing SB 276?

That’s a Hard No. Passing laws is the legislators’ job. You can’t use the courts to stop them from doing their jobs just because you (and a small, albeit vocal group of your like-minded friends) don’t agree with a bill, even if you think it’s unconstitutional, un-American, vioates the Nuremberg Code, the Helsinki Doctrine, the Belmont Report, or the Code of Hammurabi.

2. What about the fact that the Chairman of the Appropriations Committee said he didn’t do a financial impact analysis of the bill, but is still voting for it. Can he be impeached?

Another Hard No. Courts don’t interfere with the legislative process and legislators have absolute immunity. Besides, the legislators seem to believe they are dealing with a potential health crises, so cost issues are secondary, or more likely irrelevant from their point of view, as erroneous and benighted as you think that point of view is.

3. Isn’t there a constitutionally protected right to a medical exemption?

One highly regarded vaccine attorney/professor advocate tells me that the 1905 Jacobson case, which started the whole mandatory vaccination jurisprudence, created a constitutional right to a medical exemption. She’s probably right, but I don’t see anything in that decision or other such constitutional decisions about who can make that decision, in part because the exemption issue wasn’t really the heart of the case (called the holding in legal terminology).

4. OK Mr. Lawyer, then is it legal for a state or district public health official who is not a licensed medical doctor to deny or rescind a medical exemption which after all is a very important medical decision?

Excellent question, grasshopper! But it’s complicated.

Surprisingly, the Medical Board of California has officially taken no position on the bill. The California Medical Association supports the bill. So, I’m going with neither have a problem with non-physicians making these important medical decisions. And obviously, the Dems in the legislature think SB 276 is legal, and presumably have been so advised by legislative counsel.

5. But it is constitutional or illegal?

Sorry, but I can’t give a yes or no answer to this. There does not appear to be direct legal precedent. Of course, two states already have that kind of exemption decision-making in place, West Virginia and Mississippi. However, I’m not aware that the issue has been litigated in those two states. So, we’re probably talking about a precedent setting case.

And based on what happened after SB 277’s passage, I suspect that there will be multiple lawsuits challenging SB 276 on a variety of bases. I repeatedly complained about the SB 277 lawsuits and said they would all fail.
(See my prior posts at http://rickjaffeesq.com/category/vaccines/page/4/

I won’t be making the same prediction on SB 276 lawsuits, at least not with the current version. For reasons which I won’t discuss at this time, I think the amended bill goes too far in terms of medical decision-making by non-physicians, and it’s possible that the California courts might agree. After all, as I pointed out in an earlier post, “Hey Numbnuts: there’s a reason they’re called medical exemptions.” See: http://rickjaffeesq.com/2019/03/26/cali-sb-276-moves-to-eliminate-physician-medical-exemptions-but-hey-numb-nuts-theres-a-reason-theyre-called-medical-exemptions/

Ok so there might be some legal challenges to the law, but:

What about challenges to individual denials of exemptions or revocations of existing exemptions? Can aggrieved parents sue?

I’m predicting that lawsuits will be filed against the state and local officials and governmental agencies who deny or rescind exemptions. However, there are some legal and procedural hurdles.

California law allows a legal challenge to a final administrative order of a governmental agency, by way of what is commonly referred to as an administrative mandate action. It happens all the time when medical doctors or other licensed professionals appeal to the Superior Court after a licensing board takes disciplinary action. But of course, this is a new law, so there is obviously no legal precedent for this kind of case. So for now, I am sticking with the general rule that people have a right to appeal a final administrative order (until I find something out to the contrary). Arguably, federal due process jurisprudence would require such a right to appeal, but that might need to be litigated as well, since as, stated, it’s a new law.

There are some practical and financial challenges to these future actions, but nothing insurmountable

Civil lawsuits cost money, even administrative mandate actions, starting with the filing fee, which is usually $450. Then there’s service of process fees, and some other court costs.

Class actions are a possibility, but they have their own logistical headaches. The courts don’t love class actions, and they seem to want the common issues to predominate over each case’s individual issues. A better solution might be a bunch of parents in the same district filing suit suing one district and maybe the state, for the internal review. That way, the filing fee could be spread around. The proof might differ, since each case would be different, but each case would also have some common elements. Or suits could be filed per a specific reason for an exemption, thereby increasing the common elements. Point being, there’s some flexible approaches to lighten the court cost load.

Of course, there are legal fees, but here again they get spread around amonst the plaintiffs (probably technically called petitioners.) Also, I have the general sense that money could be found. These kinds of actions might draw much attention, nationally even. It could be the first time that vaccine exemption cases get litigated, or at least partially judicially reviewed. (I’ll explain what I mean by that in another post.) My sense of the national vaccine concerned community is that the money won’t be a big problem. But then I’ve always been a “build it and they will come” kind of guy. And let’s just say I’ve built things before, so I’m reasonably confident.

Another issue is that normally administrative mandate proceedings are done on a cold record, and on papers, without an evidentiary hearing, just an oral argument for the lawyers, no trial. Based on some of the stories I’ve heard from parents, it would be a very good thing to get the parents before a judge. I think that may be possible even in cases like these. I’ve got some ideas, but there’s no need to get into it now since we’re just seeing how this thing might play out. But for sure, the goal would be get the parents (and maybe a doctor or two) before the judge.

In short, educate the California judiciary, one judge at a time, or a whole lot of them at a time. Some of these cases could find their way into the courts of appeals, and eventually the California Supreme Court might weigh-in.

There could be many, dozens or even hundreds of these cases. Who knows, all with an eye to educating the California judiciary, one judge at a time.

Think of it as a Plan B.

Rick Jaffe, Esq.
rickjaffeesaquire@gmail.com