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Some Perspective on Today’s SB 276 Health Committee Hearing, and the need for a rethink about exemptions (and think humanitarian exemption)

Some Perspective on Today’s SB 276 Health Committee Hearing, and the need for a rethink about exemptions (and think humanitarian exemption)

Today will no doubt be gut-wrenching for you, as you watch the hearing and merely state your name and opposition to the latest iteration of SB 276. Regrettably the nature of the hearing does not afford you the opportunity to relate your stories of prior vaccine injuries to your child There will be opportunities to do so, in different contexts, after the bill passes through the Health Committee and the Appropriations Committee (and let’s be realistic, that’s most likely going to happen).

Because this is essentially a new bill (in form anyway), I am told it has to go back to the Senate for reconsideration. So theoretically, there is another opportunity to make the case in opposition to the Senate. But let’s be realistic. SB 276 passed the Senate under the version which removed the physician’s ability to make medical vaccine exemption decisions. The new version, in form at least purports to give the decision back to them. But as I’ve shown in my last post, it really doesn’t.

It seems obvious that the national context right now is against exemptions of any kind, at least in states which have experienced measles outbreaks. Any state which has some kind of PBE or religious exemption is just one outbreak away from legislation removing the exemption, and that’s assuming there is no national movement (some might call it a conspiracy) to remove these exemptions everywhere.

Because of this, and the extremely limited scope of CDC based medical exemptions, I think the whole exemption issue needs to be rethought. In California, it needs an immediate rethink, because it could positively impact the SB 276 debate.

What I have learned from talking to the families of Ken Stoller’s patients (and the families of other broad exemption writing physicians) is that most of you vaccinated one of your children, and that child was seriously and, in many cases, permanently injured. As I pointed out in many prior posts, Congress recognized that vaccines would cause such severe and permanent injury is a small group of children. You are the families of those children, and something needs to be done to protect these kids and your other children.

One of the reasons why people like you are so vilified by the press and the authorities is because they think you are selfishly endangering other people. There are two asserted bases of this belief. First, herd immunity. Second, the children who cannot be vaccinated under CDC guidelines because of age, or being temporarily immunocompromised, most often from cancer chemotherapy. In other words, the greater good and need to sacrifice argument.

That got me thinking. Isn’t one child sacrificed to the greater good enough? Why shouldn’t that be reason enough to get an exemption, one based on humanitarian considerations.

Think “Saving Private Ryan”

In WWII, because so many families were losing multiple sons, the Army developed a rule protecting a family’s other children.

Maybe there should be a humanitarian exemption added to SB 276, for the vaccine injured families.

The natural question would be how does a family prove that the injury was caused by vaccines?

Well I have an answer for that which is grounded in current vaccine law.
They don’t have to. There should be a presumption that the injury was caused by the vaccine if the symptoms or injury occurred in a close temporal proximity. The state would have the burden of proving to an administrative law judge that there was some other specific cause of the injury, based on published studies. That is the way it works currently in the majority of vaccine court cases. So there shouldn’t be a problem with the burden shifting approach. Congress and the he vaccine court and immunity act recognized, that it’s impossible to show a causal connection in any one case. An injury in some circumstances and some proximity is proof enough for the vaccine court, in some illnesses. There is no reason why it should not be the case in an exemption context.

The humanitarian exemption would not protect all children who might suffer an adverse event from a vaccine. Protecting them is going to require defeating SB 276. But if there was a humanitarian exemption added to SB 276, it would protect the most vulnerable families and from what I can tell, these are most of the families who are receiving medical exemptions from the few physicians still writing them.

So how do we get there?

First, a bill has to be drafted. I’ve reached out a bit and I think that can happen.

Second, potential sponsors have to be approached. It would be nice if sponsors could come from both parties in both houses.
And then comes the stories, and that will be your chance to make yourself heard.

If any of you read this in line to speak today, maybe tell the Members that you support a humanitarian exemption for the vaccine injured, and let them know what’s coming.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RicK Jaffe, Esq.
rickjaffeesquire@gmail.com

Thanks for the Support at the Stoller San Francisco Rally on Friday! And some updates

Thanks for the Support at the Stoller San Francisco Rally on Friday! And some updates


Last Friday we held a rally to support Dr. Ken Stoller’s attempt to stop the San Francisco City Attorney’s subpoena for his medical vaccine exempt patient medical records. We started at the San Francisco Chronicle’s office and walked to City Hall. NBC covered the walk by helicopter, but not the event. ABC did tape my press conference (which was more of an informal chat to the crowd). I didn’t see the piece, if it aired. The event was also taped by Frontline USA and is available on its website. Scoll down to June 14th on the website. (Sorry for moving in and out of the picture frame, but I’m a pacer unless my hands are glued to a lectern).

Thanks to Heidi Light, Denise and a few others who helped with the event. It literally wouldn’t have happened without you folks.

Update on the Stoller Case and Media
No response from the City Attorney yet on the case. I’m sure it’s coming and it will be good. You’ll hear about it because no doubt there will be another press release, and all the media will cover it, and further vilify Ken Stoller, with a couple lines from his attorney.

Speaking of press vilifying him, expect a negative story from the San Jose Mercury soon, digital maybe tonight and in the paper tomorrow. They apparently got all or a good portion the San Francisco medical exemptions, deidentified, and the reporter had some questions. We’ll see how much of my answers make it into the story, but it’s a safe assumption that it will be highly critical of him, with the aforedescribed few lines from his attorney.

Update on the SB 276 Assembly Health Committee hearing
It’s still on for Thursday, so be there if you can make it. I’ve heard some concern voiced that it’s not getting enough public dissemination in social media circles. I hope that changes. I know some of the groups are diligently working on arranging for speakers and physicians to be present. Go there and make your voice heard!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

What’s Next, and Stay On-Message at the Cali. Assembly Health Committee SB 276 Hearing Next Week

What’s Next, and Stay On-Message at the Cali. Assembly Health Committee SB 276 Hearing Next Week

Yesterday, it was announced that the Assembly Health Committee would hold its hearing on SB 276 on June 20th.

I have two pieces of advice, the first of which is in part self-serving.

I once asked a very busy and successful Hollywood personality/author/entrepreneur how she managed to juggle so many different ventures and activities. She told me that she had a simple rule: She just focuses on “what’s next”, and once the current thing is done, she moves on again to what’s next. Easy for her since she has multiple assistants who lined-up the series of what’s next tasks. Still, I think it applies to the movement to defeat SB 276.

What’s next in the battle is Friday’s action against the San Francisco City Attorney’s effort to subpoena Ken Stoller’s medical records of his vaccine exempt patients. Here is the link to the event page. https://www.facebook.com/events/1580569842074414/

The physical event starts at the San Francisco Chronicle’s Office. The message is that the media does not give fair or adequate coverage to the vaccine debate, and particularly the serious and permanent injuries caused by vaccines, a fact which is accepted by the federal judiciary and the Congress that granted the vaccine manufacturers absolute immunity from suit.

The event then moves by-foot to the San Francisco City Attorney’s Office with the message that the City Attorney withdraw the subpoena, and that physicians have (and should continue to have) the discretion to issue medical vaccine exemptions based on factors broader than CDC contraindications, which is exactly what Ken Stoller is doing, and he is following the law (SB 277) exactly.

We are trying to make this an international event, with people from around the world contacting the City Attorney, by fax, email and phone, expressing their opinions, and sharing stories to help the City Attorney understand that he was given bad information.

It’s hard to predict how large this international communications effort will be, but my feeling is that if it’s big enough, the message will be heard all the way to the Assembly in Sacramento next week, sort of like a stone’s throw rippling in the water. After Friday’s event, ride the wave to Sacramento, for what’s next, after Friday.

And, Stay On-Message

The hearing next week concerns a bill which will remove a physician’s ability to make an important medical decision, and place it in the hands of government employees who have never met or spoken to the patient for whom they are making the decision, and whose records these officials have not reviewed. That should be an affront to all physicians, but especially to the state administrative agency that protects the public, in part by making sure that only physicians with a doctor/patient relationship make such decisions. Sadly, it isn’t, not yet anyway.

Your job is to convince the members of the Health Committee that physicians with a doctor/patient relationship not government employees with no contact with the patients should make these decisions. Short, succinct stories showing the limitations and harm caused by an overly narrow focus on contraindications would be an excellent way to show that for non-health care people who testify.

I’ll repeat what I’ve said before the Senate Health Committee hearing: it’s not about your constitutional right to make personal decisions for your children and exercise those rights to decline all vaccines because of your personal, philosophical or religious beliefs. There used to be a statutory right to do so, but then came SB 277, and that statutory right was eliminated. Efforts to establish a constitutional or other statutory right have all failed. It’s over! If you try to relitigate that rescinded and currently non-existent right, you are undercutting your efforts to defeat SB 276.

Specifically, if this is perceived to be just about your attempt to protect the power of physicians to indirectly effectuate parents’ personal belief exemptions, then your efforts will fail, as they should. So, my advice is to focus on what this is actually about rather than relitigate a prior battle.

That’s the way I see it anyway.

Call and fax the City Attorney on Friday! And if you’re in the neighborhood, stop by and show your support.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

CALL TO ACTION: To the Vaccine and Medical Privacy Concerned Communities

CALL TO ACTION: To the Vaccine and Medical Privacy Concerned Communities

On Friday June 14, 2019, at 12:00 PM PDT, there will be a showing of international support:

1. Demanding that the San Francisco City Attorney, Dennis Herrera, withdraw the Subpoena he issued against Dr. Ken Stoller to turn over the medical records and sensitive genetic information of his vaccine medical exemption patients. The City Attorney’s actions are an afront to the rights of all patients and must be stopped, or you can expect other government entities to follow in his steps!

2. To stand UNITED in defeating SB 276, which eliminates physician decision making authority to issue medical vaccine exemptions, and places this critical medical decision in the hands of government bureaucrats who have NEVER met or spoken to the child or family. SB 276 passed the California Senate and will soon be before the California Assembly.

The local event will start at the San Francisco Chronicle building, 901 Mission Street, and then proceed to the City Attorney’s Office at 1390 Market Street, (about a mile walk).

During this critical time, we are asking everyone across the world who is concerned by the City Attorney’s actions and bills like SB 276 to voice your opposition to the City Attorney by contacting the City Attorney’s office on June 14th by phone 415-554-3944, fax 415-437-4644, and email cityattorney@sfcityatty.org.

Please be polite and respectful in your communications.

The message can be as short as “Doctors, Not Bureaucrats”, Withdraw the Subpoena”, “Health, Not Politics”, “Protect my medical privacy rights”, “Do Not Open the Door to Medical Privacy Abuse”, “Don’t Target Fragile Children and Families” or anything else (polite and respectful) which strikes your fancy.

You could try to educate the City Attorney with personal stories, or say, and point out that twenty eight out of thirty-eight cases of measles in the Bay Area were adults (Latest state numbers: 40 out of 51 cases are in adults.)

Or emphasize the fact that 38% of the measles cases in the 2015 Disneyland outbreak were from the vaccine. https://doi.org/10.1128/JCM.01879-16. Or state that Governor Brown made it a point to specifically allow broadly written medical exemptions with SB 277.

Maybe with enough feedback, the San Francisco City Attorney will realize that he was the recipient of bad information about the measles problem in the Bay Area, and other misinformation, which I’ve discussed in the Stoller v. Dennis Herrera, Complaint.

(The Complaint is attached to this post http://rickjaffeesq.com/2019/06/04/dr-kenneth-stoller-files-lawsuit-against-the-san-francisco-city-attorneys-subpoena-for-his-patients-medical-records-and-genetic-information/.)

This event is global! It is being supported by many California state organizations, other states’ organizations, and national and international organizations and groups. Here is the link to the Facebook event page. https://www.facebook.com/events/1580569842074414/

Ladies and Gentleman, it is time to go big or go home! Make your voices heard. GET INVOLVED and spread the word to your communities and leaders to join in!

#myrecordsnopolitics

#myrecordsnosb276

#standforstoller

Rick Jaffe, Esq.
Rickjaffeesquire.com

Kenneth Stoller MD v. SF City Attorney et al, pending in the San Francisco Superior Court: The Short Version

Kenneth Stoller MD v. SF City Attorney et al, pending in the San Francisco Superior Court: The Short Version


Here is a brief summary of Ken Stoller’s lawsuit against the San Francisco City Attorney (SFCA):

The SFCA held a press conference announcing that he had issued an administrative subpoena on Dr. Ken Stoller for his medical records all his patients throughout the state for whom he has written a vaccine medical exemption. The basis of the subpoena is an alleged investigation about whether Dr. Stoller’s exemption writing practices is a public nuisance, presumably in light of the uptick in measles cases in the Bay Area and throughout California.

We think this is a bogus investigation and therefore, we filed a lawsuit to quash the subpoena and asked for other relief.

There are several critical and incontrovertible facts which show the bad faith behind the SFCA’s so-called investigation.

Fact 1:

The primary vector or cause of the Bay Area measles outbreak is not medically exempt unvaccinated school children. Rather, it is adults who traveled abroad. Here is the news article which reports that 28 of the 38 Bay Area measles cases were in adults traveling abroad. https://www.sfchronicle.com/health/article/Measles-cases-jump-to-38-in-California-amid-13795838.php.

There is no published data about the 10 children yet. However, extrapolating from the genetic test results of the 2015 Disneyland outbreak which established that almost forty percent of the 194 measles cases were from the vaccine. https://doi.org/10.1128/JCM.01879-16,

and, adding the most conservative numbers of the MMR primary vaccine failure rate of 10% https://www.ncbi.nlm.nih.gov/pubmed/15176719, it is likely that almost half of the 10 measles cases were in children who got it either from the vaccine, or because the vaccine didn’t work on them.

Conclusion: Since the overwhelming majority of the San Franciso Bay Area measles cases are not from the medically vaccine exempt school children, to target them as a potential public nuisance is irrational and suggests that it is just a pretext.

Fact 2:

On April 24, 2019, Senator Pan related to his Senate Health Committee the Medical Board’s concern that it was having difficulty obtaining the patient medical records from exemption writing physicians, and complained about the possibility of fake exemption writing going on.

Fact 3:

14 days later, on May 8th, the SFCA issued a subpoena for all of Dr. Stoller’s records and other information concerning the medical exemptions he has written throughout the state. (There would be nothing stopping the SFCA from sharing these records with other government agencies.) The SFCA’s public nuisance investigation is based on the same false “fake exemption” narrative Senator Pan has been using as his justification for SB 276.

Fact: 4:

The SFCA’s attempt to use the public nuisance laws as a basis of investigating a physician’s medical practice and seeking medical records and genetic test information is unprecedented in California or anywhere else in this country. The fact that the initial request is for deidentified records does not mitigate the intrusion into the patients’ rights to control their personal medical information. The SFCA’s office, unlike the Medical Board, is not obligated to protect and not disseminate the information to other government agencies, which given its resources, it can easily reidentify the patients’ identity, and then target the families, which has been suggested by a possible SFCA ally.

Fact 5:

The original version of SB 277 proposed by Senator Pan limited vaccine medical exemptions to CDC contraindications. Because of push-back, he was forced to broaden exemptions far beyond the few CDC contraindications. The law which was passed allows for considerations, including without limitation, “family history.” According to Senator Pan, even a “genetic association, with a sibling, cousin, [or] some other relative [could justifiy a finding that] it’s not safe for a vaccine . . .” and “even if that child has not yet suffered harm, then they [the physicians] an exercise their professional judgment to provide an exemption” (Senator Pan’s recorded testimony explaining SB 277 to his fellow Senators)

Fact 6:

In SB 276, Senator Pan has changed his mind and now seeks to limit vaccine medical exemptions to the same limited CDC contraindications which he tried and failed to have included in SB 277. His main PR tactic is to promote the false “fake exemption” narrative by relying on the fact that Dr. Stoller and others like him are writing medical exemptions based on these broader factors referenced in SB 277, which Senator Pan himself blessed in order to pass SB 277.

Conclusion:

These facts and circumstances suggest that the SFCA’s unprecedented subpoena and public nuisance investigation of Dr. Stoller’s medical practice is part of a campaign to pass SB 276 by advancing the false narrative that there are a few doctors writing false or fake exemptions. The reality is that these doctors are following the law as interpreted by Senator Pan himself. Unhappy that these physicians have taken his words literally and seriously, Senator Pan is now vilifying these physicians to pass what he could not get passed in SB 277. He is now going even further with SB 276 by having state government employees who have never met or spoken to the patient and family make a critical and potentially life-altering medical decision.

The Legislature should reject SB 276, and we hope that the courts will stop the SFCA’s attempt to misuse the public nuisance laws to violate the privacy and autonomy rights of Dr. Stoller’s patients.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

One done, 79 to go, and what else is next

One done, 79 to go, and what else is next

Paul just post this as part of a comment about the lawsuit:

“Today I discussed this lawsuit with my CA legislator’s staffperson, and provided her office with a copy of the complaint.”

Seems like a very, very good idea. I have to believe that there are vaccine concerned in the districts of all of the other 79 Assembly folks. One of the reasons I wrote the complaint the way I did was because any open minded, reasonable person would see what’s really behind this SB 276 crap, and if there were enough reasonable people in the Assembly, the bill would die. While I wouldn’t expect each member to read it, I would expect someone in their staff to do so and advise them to vote no.

So swing by your local assembly person’s office, have alittle chat with the staff and give them some bedtime reading.

I wrote my post about the Medical Board’s dilemma for the community, the legislators and for the members of the medical board. Because I actively appear in medical board cases, I don’t feel comfortable sending the post to each member. But I have to believe that people out there know each member, and it has been suggested that it be sent to each of them. Seems like a not half bad idea.

Next, some of you pointed out a couple typos with the percentages of exemptions, and that I used the wrong antonym (said less rather than greater in comparaing the probably vaccine injury percentage (.75%) to the current exemption rate (.7%). I now realize that .75% is greater, not less than .7%. (I blame my 4th grade math teacher for that error.). These errors have already been corrected in a Notice of Errata filed with the court this morning. Thanks for the corrections. If there are any more, let me know. We want to get this right.

There will probably be some kind of public action against the City Attorney’s office in the next few days. It won’t require travel, but will involve communications. Stay tuned, and if you have any thoughts about it, shoot me an email.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Dr. Kenneth Stoller Files Lawsuit Against the San Francisco City Attorney’s Subpoena for his Patients’ Medical Records and Genetic Information

Dr. Kenneth Stoller Files Lawsuit Against the San Francisco City Attorney’s Subpoena for his Patients’ Medical Records and Genetic Information

Today, Dr. Kenneth Stoller has filed a lawsuit to stop the San Francisco City Attorney’s attempt to obtain the medical records and genetic information of his vaccine exemption patients. The basis of the City Attorney’s subpoena, which was served and widely reported in the media on May 8th, is a purported public nuisance investigation about Dr. Stoller’s practice of writing medical exemptions for children who do not meet the strict CDC (Centers for Disease Control) vaccine contraindications.

here is the gogetfunding page to support this lawsuit.
https://gogetfunding.com/legal-defense-fund-stoller/

We believe that there is no real investigation. Rather, the City Attorney’s press conference announcing the subpoena was intended to create public support for SB 276, which would remove medical vaccine exemption decision making from physicians and place it in the hands of state or local public health officials. Under this bill, an important medical decision will be made by state or local government employees who have never met or spoken to the patient or family.

SB 276 was introduced and is being promoted by Senator Richard Pan who has created the false public relations narrative that SB 276 is necessary to stop a few physicians from writing what he considers to be fake or fraudulent medical exemptions. In reality, some physicians like Dr. Stoller are issuing medical exemptions based on the clear and explicit statements made by Senator Pan and others, that medical exemptions could be written based on considerations much broader than the narrow CDC contraindication guidelines that he now seeks to impose on all Californians via SB 276.

Many of the medical exemptions written by Dr. Stoller (and other like-minded physicians) are for siblings of vaccine injured children. These exemptions are valid medical exemptions written to protect the families’ other children from potential adverse reactions, they are neither fake nor fraudulent.

In addition to seeking to quash the City Attorney’s subpoena, this lawsuit seeks to prove that if there is a public nuisance, the vector or cause is not the medically vaccine exempt children, as the public is being led to believe. This lawsuit also seeks to establish the legal rights of the families of vaccine injured children to obtain an exemption based on considerations beyond CDC guidelines as a right to receive medical care and advice different from the conventional medical majority view.

Here is the (corrected) complaint. I think many of you will like it.

correctedcomplaint

Here’s the gogetfunding link again.

https://gogetfunding.com/legal-defense-fund-stoller/

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com
916-492-6038 (California office number

The Cali. Medical Board is Stuck Between a Rock and a Hard Place on SB 276 (updated with the good news links)

The Cali. Medical Board is Stuck Between a Rock and a Hard Place on SB 276 (updated with the good news links)

Last week, the Medical Board of California held a multi-location public hearing and comment on SB 276. By accounts, there were many excellent speakers making cogent points against SB 276. The consensus of opinion was that the Board members listened attentively and heard the concerns of the speakers. And that’s a very good thing.

The result per a recent press release was that the members of the Medical Board support the concept of the bill but not the particulars, presumably meaning the Board is quietly recommending that the bill be reworked.

Apparently, what the Board likes is that the vaccine exemption process contains a consent to release the exemption applicant’s medical records to the Board, thereby solving its asserted difficulty in obtaining medical records in its investigation of exemption writing doctors. What it doesn’t like apparently is the limitation of exemptions to CDC contraindications and precautions, and perhaps it wants some clarification on who in the government makes the decision.

And therein lies the dilemma which the Medical Board faces: SB 276 violates the Board’s prime directive and core principle, which is that medical decision making is the practice of medicine, and that requires a doctor/patient relationship.

A corollary is that the doctor/patient relationship always has certain requirements like a direct interaction/communication (most often initially, face-to-face) and a contemporaneous written record of the interaction.

Obviously, vaccination exemption decisions by public health officials are not consistent with this.

And you know what else SB 276 isn’t consistent with?

The actual CDC guidelines which ostensibly (but not in reality) SB 276 is nominally effectuating.

Who is supposed to make the vaccine contraindication decision according to the CDC?

If you guessed state or public health officials who may or may not be a licensed California physician, you guessed wrong.

The CDC’s contraindications page makes pretty clear that the guidelines are meant for the physician or the “Persons who administer vaccines should screen patients for contraindications and precautions to the vaccine before each dose of vaccine is administered… The provider should ask the parent or guardian if the child is ill. If the child has a moderate or severe illness, the vaccination should be postponed.”

Even the CDC contraindication based limited analysis involves medical decision making which is basically called vaccine counseling.

But of course, the person doing the vaccine administering isn’t the person doing the actual screening for contraindication, at least in the sense of deciding whether the vaccine should not be administered.

(As an aside, the CDC technically doesn’t issue any guidelines for physicians. Here is something from a recent email from the CDC:

“CDC does not have guidelines for exemption. Vaccination exemptions laws are a matter of state (or local) law, and/or institutional guidelines.
What some may use, or interpret as reasons for medical exemption, are contraindications, and perhaps precautions, as listed in the General Best Practice Guidelines at
https://www.cdc.gov/vaccines/hcp/acip-recs/general-recs/contraindications.html, particularly in table 4-1. The language from California quoted below specifically names contraindications listed by CDC.
How a state uses that information is their prerogative.
M. Suzanne Johnson-DeLeon, MPH
Health Education and Information Specialist
Immunization Services Division
National Center for Immunization and Respiratory Diseases, CDC”)

Meaning the CDC is passing the buck to the states

This all reminds me of that commercial for the online security service. You know the one where the dentist looks into a patient’s mouth and says “Boy, that’s the worst cavity I’ve ever seen.” The patient tells the guy, “Ok doc fix it” to which the guy in the white dental coat says, “Oh, I’m not a dentist, I’m just a dental monitor. You’ll have to go to an actual dentist to get it fixed.”

So, based on 2018 medical exemption numbers, four thousand medical exemption consultations are going to play out that way, or actually worse. Because the dental monitor will have to tell the patient that the state official who approves the actual dental procedure, who you won’t ever see or speak to, isn’t going to approve it, so just go home and be in pain the rest of your life.

So, here is the Medical Board’s dilemma:

It might be arguable that having public officials make exemption decisions based solely on contraindications might be consistent with the Board’s core principle because 1. There are very few contraindications, and 2. Contraindications are vaccine specific and mostly temporary. I suppose it could be argued that for contraindication based decisions, there is little discretion or decision making. You either have and can document a contraindication or you can’t.

It gets harder with CDC precautions since some of them “may” justify a delay in some vaccines. The word “may” necessarily involves discretion, which in the medical biz, means medical decision making.

And of course, any basis for exemption beyond CDC contraindications and precautions involves full-on medical decision making. And that, according to the Medical Board’s core position, is the practice of medicine.

My view is that once SB 276 went beyond CDC contraindication, it turned all the public health officials into potential felons for practicing medicine without a license (theoretically at least). The California physician licensed health state health officials who deny exemptions would be violating the Medical Board’s core principle of making a medical decision without a doctor/patient relationship.

The dilemma is that it appears that members of the Medical Board now understand that CDC contraindications and precautions are too narrow to protect Californians from potential harm from vaccination. Meaning there are some children who should not be vaccinated even though there is not a group of CDCs recognized contraindications or precautions which would justify exemption under the current version of SB 276. But on the other hand, suggesting that the bill be amended to include other factors like family history and genetic considerations, puts the public health officials’ decision deeply in the realm of activities which the Medical Board actively regulates with rules under the core principle that medical decision making requires a doctor/patient relationship.

What might a Board proposed amendment look like?

It might look like this:

If the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which public health official does not recommend immunization, that child shall be exempt from the requirements of Chapter 1 (commencing with Section 120325, but excluding Section 120380) and Sections 120400, 120405, 120410, and 120415 to the extent indicated by the physician’s statement.

Ok, all I’ve done is taken SB 277 and replaced “physician” with “public health official.”

Would anyone at the Medical Board think that makes any sense and/or are comfortable with having public health officials make such an important medical decision for families? I hope not, and from initial accounts, the Governor also doesn’t like the idea. Good for him!

The Board’s two obvious responses to SB 276

In short, some person has to have the authority to make vaccine medical exemption decisions. It is the physician under SB 277 (current law), but it is a public health officer under SB 276.

The Governor and some members of the Medical Board are starting to push back on this, as they should. Hopefully, a majority of the members of the Medical Board will realize that SB 276 is fundamentally and irreparably inconsistent with the Board’s core principle. This will require the Medical Board to inform the Legislature that it does not approve of SB 276. I hope it will follow the Governor’s lead and do just that.

HOWEVER, there is currently a high degree of concern if not fear amongst the physicians writing broader medical exemptions. They took Senators Pan and Allen seriously when they informed the public during the SB 277 fight that physicians had the discretion to write exemptions based on family history, even beyond immediate family. Having relied on the Senators’ public statements, these physicians are now under attack by the very people who publicly approved these broad-based exemptions.

The Medical Board needs to take a hard look at exemption writing and come-up with some guidelines. Many in the vaccine concerned community might not like that for fear that the Board would just endorse CDC or some other limited basis of exemption. That is certainly possible. But I’ve heard many stories from the parents of vaccine injured children, and I think those stories would powerfully impact the Board, as I believe they did last week at the Board’s public meeting.

I have been very impressed with the community’s self-organization, and I feel it is up to the task of presenting a convincing case supporting the broad exemptions which Senators Pan and Allen previously advocated.

If SB 276 does die, the exemption writing physicians are going to need some clarity or at least clarification about what’s permissible, and on some of the technical things like exemption documentation requirements, and even things like temporary exemptions. Otherwise, my guess is that every exemption writing physician will eventually face Board action. I know that some of the Board’s outside experts seem to think that any exemption beyond CDC contraindication is not valid, regardless of whether or not it is consistent with the language of SB 277. And that for sure needs to be rectified by the Board.

In short, I’m hoping the Medical Board will say NO to SB 276, and instead start the process of issuing a policy statement/guideline to clarify the seemingly very broad discretion and expansive factors/considerations which Senators Pan and Allen advocated during their public selling of SB 277. I think that would be the best way to protect the rights of the vaccine injured who need medical exemptions beyond CDC contraindications, and give some needed reassurance to the few physicians writing them.

The hard working folks at Educate. Advocate (https://www.educateadvocateca.com/sb-276/
facebook.com/EducateAdvocate) wanted me to post some of their links to the good news things mentioned above (and for which they deserve a big chunk of the credit (along with a couple other very effective groups (shira, christina and dana))).

Governor Newsom comments regarding medical exemption bill SB 276 June 1, 2019 http://bit.ly/NewsomNoSB276

Press Release of Medical Board of California Meeting regarding SB 276 May 28 2019 http://bit.ly/SB276PR

Transcript of Medical Board of California committee concerns
http://bit.ly/MBCConcernsSB276

YouTube Video of Concerns by Medical Board of California board members
http://bit.ly/VIDEOMBC

(Links proved by Kristie Sepulveda-Burchit, Educate. Advocate.)

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Update on Dr. Ken Stoller’s Battle against the SF City Attorney’s Office

Update on Dr. Ken Stoller’s Battle against the SF City Attorney’s Office

here it is:
https://gogetfunding.com/legal-defense-fund-stoller/

The short of it is that it’s going to be over next week or a new phase will begin.

Stay closely turned!

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com