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Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

Grandfathered Exemptions under the New California Vaccine Law: Clear as Mud

The new California vaccine exemption law is vague, badly written and not well thought-out.

First, let’s get on the same page. Look at SB 714, because that is really the operative law in that it changed SB 276 even though both because law the same day. Here it is:
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB714

What is a grandfathered medical exemption?

What is commonly referred to as grandfathered vaccine medical exemptions are exemptions written by a California licensed physician on or before December 31, 2019.

What school years does a current or grandfathered medical exemption apply to?

Subject to what comes later in this post, if you child currently has a permanent medical exemption, it should be effective for the current school year (2019-2020).

If your child will not be starting a new “grade span” next school year, then under the terms of the grandfathering provisions, your child’s exemption should be good for next year also (2020-2021), and should remain valid until your child enters the next grade span.

There are exactly three “grade spans”

“(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

This much of the law of grandfathered exemptions is clear.

It is also clear that there is no longer any such thing as a permanent medical exemption. Exemptions are at most good for one grade span.

Can a grandfathered exemption be revoked?

Yes, under the following provision in 120372:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.”

Is the revocation automatic?

My current thinking is that these exemptions should not be automatically revocable or revoked, but I am not sure. What I can relate to you is that the subpart immediately preceding (4) dealing with grandfathered exemptions has the following language:
“(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.”

If this subpart (3)(C) applies to grandfathered exemptions, then grandfathered exemptions would have to go through this revocation process and presumably the appeal process as well. I think there is every reason to believe and hope that the authorities will use the revocation process in (C) for exemptions written by physicians under a board order. (As of today, I only know of one such physician, Bob Sears, but there surely will be more in the future).

But as a lawyer who is attuned to jurisprudence and how the law should be, I do have a small, nagging concern on the application of this subpart (C) department of health revocation process and whether it applies to grandfathered exemptions. Also, fyi, I am a hope-for-the-best, but expect-the-worst-kind of a guy. Caution: My concern is in the weeds.

The revocation process is triggered by a review of medical exemption submitted to CAIR. Under 276, grandfathered medical exemption letters had to be submitted to CAIR, but not so under the final version of the law, i.e., with SB 714’s changes.

So, how can there be a revocation process for exemptions which are not in the department of health’s reviewable CAIR database? What is the statutory mechanism by which the department of health obtains and then reviews grandfathered exemptions?

Of course, on an ad hoc basis, schools will probably submit questionable exemptions to the department of health. However, that really does not solve the problem that there is a gap or hole in the statutory scheme. There is a revocation process for exemption forms all of which are centrally filed. But grandfathered exemptions (and 2020 transitions exemptions) are not in the database and hence not directly accessable by the department of health, which is supposed to handle the exemption revocation process. And to me that’s a head scratcher.

That gap might cause an interpretation that grandfathered exemptions are not subject to the revocation process by the department of health, which could lead to an interpretation that exemptions written by physicians under probation are automatically revoked/revocable.

Beyond this technical issue, we are dealing with vaccination. The state authorities and schools believe the fake exemption narrative, and they sure don’t like Bob Sears. So, I have to at least wonder whether some schools, perhaps with quiet consultations with the public health department, might decide that his exemptions are automatically revoked, (because he is currently under probation with the Medical Board).

I don’t think a court would necessarily see it that way, meaning upholding an automatic revocation interpretation. However, it is possible that based on the government narrative promoted by the media (i.e., renegade, unethical physicians writing fake medical exemptions for thousands of healthy kids, which endanger zillions of people), some schools might simply not accept medical exemptions written by a physician on probation, even before the full implementation of the new law.

One of the reasons I think that might be a possibility is because prior to the new law taking effect on September 9, 2019, schools were not honoring exemptions written by physicians who were under board investigation, and there was absolutely no legal authority for schools to do that.

Now, there is a statute which states that an exemption written by physician under probation can be revoked, AND, the provision does not expressly state that the rule for revocation of medical exemption forms applies to these grandfathered exemptions.

So, my conclusion is that while I think the revocation process should apply to grandfathered exemptions and that medical exemptions written by physicians on probation should not be automatically revoked/revocable by the health department, I cannot say for certain, and I surely wouldn’t predict that is the way the statute will be interpreted by the department of health, or implemented by the schools. Given the times and climate, it would not shock me if sooner or later, some schools will simply refuse to accept a grandfathered exemption written by a physician under Board probation, which would force a family to home school or take legal action.

I hope to be proven wrong. For now, watch, wait and let’s see how this shakes out. I would note that every day, something new seems to be happening with the Medical Board and schools. I can almost hear the conversations over the phone lines and see the email exchanges between all these government, legislative and school officials plotting and planning, and what I am sensing is there is more to come.

Rick Jaffe, Esq.

Medical Vaccine Exceptions Submitted after Full Implementation of the New California Vaccine Law

Medical Vaccine Exceptions Submitted after Full Implementation of the New California Vaccine Law

Previously I’ve tried to explain each of the two operative provisions of the new California vaccine law, Health and Safety Code Sections 120370, and 120372 separately. In retrospect, that was confusing.

I think a better approach is to talk about the three types of medical exemptions under the new law, and the different types are really just temporal differences, meaning grandfathered exemptions (current exemptions and those written up until December 31, 2019), transition exemptions written during calendar year 2020, and medical exemption forms submitted upon the full implementation of the law on or after January 1, 2021.

What I have written has made some folks eyes glaze over because of all the information, so in this post I am only going to talk about what I think is the clearest part of the new law, namely exemptions under full implementation starting January 1, 2021. And to make this easier to read, there will be no statutory citations or quotes from the statute.

Here is what the new law requires in 2021 and beyond, and what it means to the families.

1. Exemptions are by submission of a state created form which will contain at least the information set out in the statute. (the form could contain more requested information).

2. Exception forms are filed in the CAIR database.

3. Exemptions must be based on the current standard of care, which theoretically could possible include family history, but only if it comports with the accepted standard of care. In my opinion none (or virtually none) of your exemptions will meet that standard.

4. The state has the power to review any medical exemption form.

5. A medical exemptions can be revoked if it does not comport with the accepted standard of care.

6. A decision to revoke an exemption can be appealed.

7. During the appeals process, (however long that takes), your child stays in school.

8. In addition to exemption revocation, some exemption forms will not be accepted; specifically all exemptions written by doctors (i) under most forms of board sanction, (ii) who are the subject of a board sanction proceeding, (i.e. have an Accusation filed against them) and (iii) who the department of health thinks is creating a public health risk by writing that/those exemptions. I predict that this last “public health risk” exception will be applied to any physician writing exemptions for all vaccines for an entire grade span which is the closest thing there is to a permanent exemption under the new law.

9. I read an exemption which is “not accepted” as not being subject to a revocation appeal, because “not accepted” is different from revocation. But that could be a matter of interpretation by the health department.

That is the new law as it will apply to all exemption forms submitted on and after January 1, 2021

What it Means to Physicians

The law creates extreme disincentives for physicians to write medical exemptions. Anyone writing 5 or more medical exemptions can and probably will get reported to the Board for investigation.

The state department of health has the right to reject all medical exemptions from any doctor who it thinks is endangering public health. As indicated above, I believe these folks believe that any physician who writes even one exemption beyond the conventional standard of care is endangering public health, so it is unlikely that any such exemption form you submit will be accepted.

In addition, physicians cannot charge for an examination for a temporary exemption or for filling out the form.

It will only be the brave and very foolhardy doctor who attempts to obtain a medical exemption from all vaccines for a grade span for any child.

In short, I think the new law will end medical exemptions for what the vaccine community considers the medically or vaccine “fragile.” I think it also ends exemptions for all vaccine injured children, unless a child has a contraindication for every single vaccine from which exemption is sought.

I think this part of the law is clear. What the law says and how it will be interpreted as to the other two categories of vaccine exemptions – grandfathered and exemptions written in 2020, is not clear. To explain why, I will have to cite and quote the law and get into the weeds, which I’ll do in another post.

Rick Jaffe, Esq

Now That SB 276 And SB 714 Are Law, What Does It All Mean For Parents?

Now That SB 276 And SB 714 Are Law, What Does It All Mean For Parents?

I have received many emails and calls from parents requesting advice about how the new law applies to their children. Sorry, I don’t do medical exemption consultations for particular cases, but I can try to explain what the law says and means.

The California Health and Safety Code Section which was changed by SB 277 a few years back, and changed yesterday by SB 276 and SB 714 is Section 120370 (SB 276 and SB 714 made changes to several other sections as well, but 120370 is one of the two big ones, and I will discuss both of them.)

SB 276 and SB 714 were passed together, but SB 714 modified SB 276, which means that the new legal version of 120370 incorporates the changes made by SB 714 to SB 276

Here is the new version of Health and Safety Code, Section 120370

SECTION 1.
Section 120370 of the Health and Safety Code
“(a) (1) Prior to January 1, 2021, if the parent or guardian files with the governing authority a written statement by a licensed physician and surgeon to the effect that 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 the physician and surgeon does not recommend immunization, that child shall be exempt from the requirements of this chapter, except for Section 120380, and exempt from Sections 120400, 120405, 120410, and 120415 to the extent indicated by the physician and surgeon’s statement.”

This subsection basically creates a time demarcation line. Prior to January 1, 2021, meaning from today until December 31, 2020, medical exemptions technically are going to be handled the way there were last week, prior to SBs 276 and 714, which is to say that the physician writes a letter containing the basic information about the exemption set forth in this statute.

What happens on and after January 1, 2021 is set out in Section 120372, the other big section on vaccine exemptions, which I will discuss shortly.

Section 120370 has two other important parts: Here they are:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.
For purposes of this subdivision, “grade span” means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive.”

This is the so-called grandfathering provision which Governor Newsom required, and because it was too late to amend SB 276, it was put in the quickie SB 714.

This section appears to grandfather families who currently have medical exemptions to keep their exemptions until the child enters the “next grade span.”
So, if for example, your child is in second grade on January 2, 2020, then theoretically under this subsection, the exemption should be good until your child enters the 7th grade. However, if your child is in the 6th grade on January 2, 2020, the exemption would only be good for the 6th grade because in the fall 2020, your child will be enrolling in the next grade span and exemptions are only good for the child’s current grade span.

Obviously, parents with kids in the beginning or middle of grade spans will be less unhappy about the new law than parents whose kids are in the last year of the grade span as of summer 2020.

The next part of 120370 is subsection (3). Here it is:

“(3) Except as provided in this subdivision, on and after July 1, 2021, the governing authority shall not unconditionally admit or readmit to any of those institutions specified in this subdivision, or admit or advance any pupil to 7th grade level, unless the pupil has been immunized pursuant to Section 120335 or the parent or guardian files a medical exemption form that complies with Section 120372.”

I read this as saying that starting after July 1, 2021, a child either has to be immunized, have a medical exemption compliant with the new law, or be grandfathered exempt in the child’s grade span.

There is one more part to 120370, dealing with exposure to diseases:

“(b) If there is good cause to believe that a child has been exposed to a disease listed in subdivision (b) of Section 120335 and the child’s documentary proof of immunization status does not show proof of immunization against that disease, that child may be temporarily excluded from the school or institution until the local health officer is satisfied that the child is no longer at risk of developing or transmitting the disease.”
Basically, a school can keep unvaccinated kids out of school if it thinks the child has been exposed to a disease for which there is a vaccine.”

And that is all there is to the new Section 120370.

Next is Section 120372. There are 10 subsections, but only the first few are important for families.

Subsection (a) creates the requirement that the CDPH create a vaccine exemption form, which form will be the only way to get a vaccine medical exemption after January 1, 2021. The form gets filed with CAIR (which most families don’t like) and submitted to the school. Subsection (a) sets out the (minimum) information required to be included in the form. Of note, this subsection states that a doctor can’t charge for filing out the form nor for doing an examination for a temporary medical exemption.

The other major part of subsection (a) is that medical exemptions are not valid beyond the child’s current grade span. (a)(2)(G).

Here is 120372 (a)

“(a) (1) By January 1, 2021, the department shall develop and make available for use by licensed physicians and surgeons an electronic, standardized, statewide medical exemption certification form that shall be transmitted directly to the department’s California Immunization Registry (CAIR) established pursuant to Section 120440. Pursuant to Section 120375, the form shall be printed, signed, and submitted directly to the school or institution at which the child will attend, submitted directly to the governing authority of the school or institution, or submitted to that governing authority through the CAIR where applicable. Notwithstanding Section 120370, commencing January 1, 2021, the standardized form shall be the only documentation of a medical exemption that the governing authority may accept.
(2) At a minimum, the form shall require all of the following information:
(A) The name, California medical license number, business address, and telephone number of the physician and surgeon who issued the medical exemption, and of the primary care physician of the child, if different from the physician and surgeon who issued the medical exemption.
(B) The name of the child for whom the exemption is sought, the name and address of the child’s parent or guardian, and the name and address of the child’s school or other institution.
(C) A statement certifying that the physician and surgeon has conducted a physical examination and evaluation of the child consistent with the relevant standard of care and complied with all applicable requirements of this section.
(D) Whether the physician and surgeon who issued the medical exemption is the child’s primary care physician. If the issuing physician and surgeon is not the child’s primary care physician, the issuing physician and surgeon shall also provide an explanation as to why the issuing physician and not the primary care physician is filling out the medical exemption form.
(E) How long the physician and surgeon has been treating the child.
(F) A description of the medical basis for which the exemption for each individual immunization is sought. Each specific immunization shall be listed separately and space on the form shall be provided to allow for the inclusion of descriptive information for each immunization for which the exemption is sought.
(G) Whether the medical exemption is permanent or temporary, including the date upon which a temporary medical exemption will expire. A temporary exemption shall not exceed one year. All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.
(H) An authorization for the department to contact the issuing physician and surgeon for purposes of this section and for the release of records related to the medical exemption to the department, the Medical Board of California, and the Osteopathic Medical Board of California.
(I) A certification by the issuing physician and surgeon that the statements and information contained in the form are true, accurate, and complete.
(3) An issuing physician and surgeon shall not charge for either of the following:
(A) Filling out a medical exemption form pursuant to this section.
(B) A physical examination related to the renewal of a temporary medical exemption.”

Subsection (b) is straightforward and innocuous:

“(b) Commencing January 1, 2021, if a parent or guardian requests a licensed physician and surgeon to submit a medical exemption for the parent’s or guardian’s child, the physician and surgeon shall inform the parent or guardian of the requirements of this section. If the parent or guardian consents, the physician and surgeon shall examine the child and submit a completed medical exemption certification form to the department. A medical exemption certification form may be submitted to the department at any time.”

Subsection (c) is the part which sets up the database, which people fearful of big brother won’t like.

“(c) By January 1, 2021, the department shall create a standardized system to monitor immunization levels in schools and institutions as specified in Sections 120375 and 120440, and to monitor patterns of unusually high exemption form submissions by a particular physician and surgeon.

Subsection (d) is the main operative part which should scare the Bejesus out of any doctor even considering trying to write medical exemptions under the new form and law.

The big ones are that many exemptions will be monitored by the department of public health i.e. schools under 95% immunization rates, docs who write more than 5 exemptions per year, and schools which don’t report vaccination rates. (d)(2)(A)-(C).

Here it is:

“(d) (1) The department, at a minimum, shall annually review immunization reports from all schools and institutions in order to identify medical exemption forms submitted to the department and under this section that will be subject to paragraph (2).
(2) A clinically trained immunization department staff member, who is either a physician and surgeon or a registered nurse, shall review all medical exemptions from any of the following:
(A) Schools or institutions subject to Section 120375 with an overall immunization rate of less than 95 percent.
(B) Physicians and surgeons who have submitted five or more medical exemptions in a calendar year beginning January 1, 2020.
(C) Schools or institutions subject to Section 120375 that do not provide reports of vaccination rates to the department.”

I am going to go out of order now, because the reality is that vaccine exemption examiners can review any exemption they want, irrespective of the school’s immunization rate, school reporting status or how exemptions a doctor writes because of “(9) Notwithstanding any other provision of this section, a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

Translation: they are going to examine every single exemption of any doctor who routinely writes medical exemptions and is not a pediatric oncologist or ID physician.

Next is (3)(A)-(C) and that is even worse. This gives the health department the right to review and reject (or accept, yea right) any medical exemption issued under this section 120372.

Here it is:

“(3) (A) The department shall identify those medical exemption forms that do not meet applicable CDC, ACIP, or AAP criteria for appropriate medical exemptions. The department may contact the primary care physician and surgeon or issuing physician and surgeon to request additional information to support the medical exemption.
(B) Notwithstanding subparagraph (A), the department, based on the medical discretion of the clinically trained immunization staff member, may accept a medical exemption that is based on other contraindications or precautions, including consideration of family medical history, if the issuing physician and surgeon provides written documentation to support the medical exemption that is consistent with the relevant standard of care.
(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.”

Section (4) is what I refer to as the Bob Sears payback rule, and it most likely means less than what appears at first blush.

Here it is:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.

That would good news except that all or most of the exemption writing physicians are currently under board investigation for writing exemptions, and below I’ll discuss a provision which allows the department not to accept exemptions written by Bob Sears and other like-minded doctors. Operatively, all exemptions by the handful of physicians writing broader than CDC contraindications will be reviewed and revoked, in my opinion.

Sub paragraphs (5) and (6) set up the appeals process for exemption revocation and is straightforward. Don’t expect the appeal overturn any exemption revocations.

Here is the appeals process.

“(5) The department shall notify the parent or guardian, issuing physician and surgeon, the school or institution, and the local public health officer with jurisdiction over the school or institution of a denial or revocation under this subdivision.
(6) If a medical exemption is revoked pursuant to this subdivision, the child shall continue in attendance. However, within 30 calendar days of the revocation, the child shall commence the immunization schedule required for conditional admittance under Chapter 4 (commencing with Section 6000) of Division 1 of Title 17 of the California Code of Regulations in order to remain in attendance, unless an appeal is filed pursuant to Section 120372.05 within that 30-day time period, in which case the child shall continue in attendance and shall not be required to otherwise comply with immunization requirements unless and until the revocation is upheld on appeal.”

Subparagraph 7 adds to the disincentive not to write exemptions because the health department can determine that a physician is a danger to public health and if so, it will 1. report the physician to the Medical Board and 2. simply not accept any exemption from that particular physician. I assume there is no appeal available to the family in this case since the exemption has not been filed and revoked. Rather it was not accepted by virtue of the doctor being red-flagged.

In addition to red flagging a doctor who is dangerous, this sub (7) also provides that exemptions are not accepted from physicians who have been accused of professional misconduct, or are on probation.

Here is (7):

“(7) (A) If the department determines that a physician’s and surgeon’s practice is contributing to a public health risk in one or more communities, the department shall report the physician and surgeon to the Medical Board of California or the Osteopathic Medical Board of California, as appropriate. The department shall not accept a medical exemption form from the physician and surgeon until the physician and surgeon demonstrates to the department that the public health risk no longer exists, but in no event shall the physician and surgeon be barred from submitting these forms for less than two years.
(B) If there is a pending accusation against a physician and surgeon with the Medical Board of California or the Osteopathic Medical Board of California relating to immunization standards of care, the department shall not accept a medical exemption form from the physician and surgeon unless and until the accusation is resolved in favor of the physician and surgeon.
(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

To make sure physicians get the message, the department notifies the medical board of any doctor who has written more than 5 exemptions in a year.

Here it is:

“(8) The department shall notify the Medical Board of California or the Osteopathic Medical Board of California, as appropriate, of any physician and surgeon who has five or more medical exemption forms in a calendar year that are revoked pursuant to this subdivision.”

We’ve already talked about (9) which gives an exemption examiner the right to review any vaccine medical exemption. Here it is again.
“(9) Notwithstanding any other provision of this section, a clinically trained immunization program staff member who is a physician and surgeon or a registered nurse may review any exemption in the CAIR or other state database as necessary to protect public health.”

The other parts of 120372 are mostly ministerial or deal with privacy issues, and is straightforward. Here they are:

“(e) The department, the Medical Board of California, and the Osteopathic Medical Board of California shall enter into a memorandum of understanding or similar agreement to ensure compliance with the requirements of this section.
(f) In administering this section, the department and the independent expert review panel created pursuant to Section 120372.05 shall comply with all applicable state and federal privacy and confidentiality laws. The department may disclose information submitted in the medical exemption form in accordance with Section 120440, and may disclose information submitted pursuant to this chapter to the independent expert review panel for the purpose of evaluating appeals.
(g) The department shall establish the process and guidelines for review of medical exemptions pursuant to this section. The department shall communicate the process to providers and post this information on the department’s website.
(h) If the department or the California Health and Human Services Agency determines that contracts are required to implement or administer this section, the department may award these contracts on a single-source or sole-source basis. The contracts are not subject to Part 2 (commencing with Section 10100) of Division 2 of the Public Contract Code, Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code, or Sections 4800 to 5180, inclusive, of the State Administrative Manual as they relate to approval of information technology projects or approval of increases in the duration or costs of information technology projects.
(i) Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and administer this section through provider bulletins, or similar instructions, without taking regulatory action.
(j) For purposes of administering this section, the department and the California Health and Human Services Agency appeals process shall be exempt from the rulemaking and administrative adjudication provisions in the Administrative Procedure Act Chapter 3.5 (commencing with Section 11340), and Chapter 4 (commencing with Section 11370), Chapter 4.5 (commencing with 11400), and Chapter 5 (commencing with Section 11500) of, Part 1 of Division 3 of Title 2 of the Government Code.”

So, what’s the Bottom line?

Theoretically, all current vaccine exemptions holders should be good to go to school for the entire fall 2019-2020 school year. For those students going to another grade span in the fall 2020, they are out of luck in terms of being vaccine exempt, or so I see it.

I have concerns about whether all schools will follow the law and the grandfathering, based on what I have been seeing before SB 276 and SB 714 became the law yesterday. We will see how this evolves.

I may write something about some of the other aspects of the new law, but this should lay out and explain the basics in the two primary provisions.

As stated, some of you will be less unhappy and will have more time to figure things out than others. Hope this helps. Again, and sorry, but I don’t do family consultations about vaccine exemption status, alternative plans or why a family’s case is exceptional. (they all are!)

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

UPDATED: Senator Pan’s New Amendment to Change SB 276 (after it passes)

UPDATED: Senator Pan’s New Amendment to Change SB 276 (after it passes)

I am not a California legislative expert and I am not sure what is going on, but today, I received an automated notice as a SB 276 bill watcher of an amendment. Originally I thought that Senator Pan blinked and made the changes requested by the Governor. But then I am not sure what changes the Governor wanted. So I am doubly unsure.

The amended bill has a different bill number, SB 714, and it says it will only go into effect if SB 276 is enacted. So I am guessing this it is stand alone change to SB 276, and is probably intended to allay the concerns of those folks Senator Pan has to listen to, without changing SB 276 which is on the Governor’s desk and probably can’t practically be amended at this point.

However, what I am clear about is that whatever this SB 714 amendment is, it does not resolve the vaccine concerned’s issues, and does not help the families of vaccine injured children who do not want to risk further damage to their vaccine injured child or risk the health and well-being of their other children.

Here is a link to this, whatever it is (and it is now clear that it is a companion bill representing the agreement between the the Governor and Senator Pan).

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB714

Here are the big changes that I see in my first pass at this thing.

1. All Current Vaccine medical exemptions will accepted up until they are not, meaning until the exemption is revoked, and almost all will be.

Here is the amended language:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.”

“grade span is defined below:

2. All medical exemptions are only good for a “grade span” which “means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive..”

There is no such thing as a permanent medical exemption

Here is the language:

“All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.”

3. The penalty of perjury part of the physician’s certification has been removed.
Here is the language:

“A certification by the issuing physician and surgeon, under penalty of perjury, surgeon that the statements and information contained in the form are true, accurate, and complete.”

Here is the big one:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.”

“has been subject to disciplinary action” probably means that the physician has been sanctioned or disciplined by the Board, as opposed to just being the Respondent (defendant) in a Board disciplinary action/proceeding. If so, the exemptions of Bob Sears can be revoked since he has been sanctioned by the Board, but the exemptions of Ken Stoller cannot (yet) because while he is the subject of a current disciplinary proceeding, no disciplinary action has been taken against him. But honestly, I am not sure about that.

Are the medical exemptions written by the disciplined/sanctioned doctors automatically revoked? NO

“(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.”

So an exemption written by a disciplined doctor still has to go through the SB 276 review process before it is revoked. My view is that almost every single medical exemption written by a disciplined physician using broader than CDC contraindications will be revoked.

That means if you have a medical exemption and the writer has been disciplined (or possibly the subject of a disciplinary action), it will most likely be revoked, but it is unclear when. My guess is that there will be some very quick process, because the appeal is just a procedural fig leap to create the illusion of due process.

4. Here is part two of the Bob Sears payback rule:

“(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

So Bob Sears and any other physician who gets probation as a board sanction is out of the medical exemption writing business. I am assuming this provision only applies to post January 2020 exemptions and not exemptions written prior thereto, which under (2) above appear to be valid for the first half of calendar year 2020. But then, you never know with these jokers.

So what’s the bottom line?

Currently, medically vaccine exempt will technically continue to be vaccine exempt until the (i) the physician who wrote the exemption is under a board disciplinary order and whoever reviews exemptions decides that it is not consistent with applicable standards (CDC, APA, AAFP, ACIP) and if appealed, the appeal affirms the revocation (and pretty much all revocation appeals will be affirmed).

When will that happen? Who knows, but that is what is coming so plan accordingly.

This is a typical Pan move. Make it look like he’s giving something up to placate the powers he needs to placate, but in reality, he’s turning the thumb screws another full turn on the vaccine concerned/vaccine injured families.

Governor Newsom: If you’re listening, don’t be fooled by this bill/amendment. It does nothing to protect the vaccine injured families. Please reconsider your support for this bill.

And by the way, the community thinks that home schoolers are Senator Pan’s next target.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com

Updated: Senator Pan’s New Bill to Change SB 276 (after it passes)

Updated: Senator Pan’s New Bill to Change SB 276 (after it passes)

I am not a California legislative expert and I am not sure what is going on, but today, I received an automated notice as a SB 276 bill watcher of an amendment. Originally I thought that Senator Pan blinked and made the changes requested by the Governor. But then I am not sure what changes the Governor wanted. So I am doubly unsure.

The amended bill has a different bill number, SB 714, and it says it will only go into effect if SB 276 is enacted. So I am guessing this it is stand alone change to SB 276, and is probably intended to allay the concerns of those folks Senator Pan has to listen to, without changing SB 276 which is on the Governor’s desk and probably can’t practically be amended at this point.

However, what I am clear about is that whatever this SB 714 amendment is, it does not resolve the vaccine concerned’s issues, and does not help the families of vaccine injured children who do not want to risk further damage to their vaccine injured child or risk the health and well-being of their other children.

Here is a link to this, whatever it is (and it is now clear that it is a companion bill representing the agreement between the the Governor and Senator Pan).

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB714

Here are the big changes that I see in my first pass at this thing.

1. All Current Vaccine medical exemptions will accepted up until they are not, meaning until the exemption is revoked, and almost all will be.

Here is the amended language:

“(2) Commencing January 1, 2020, a child who has a medical exemption issued before January 1, 2020, shall be allowed continued enrollment to any public or private elementary or secondary school, child care center, day nursery, nursery school, family day care home, or developmental center within the state until the child enrolls in the next grade span.”

“grade span is defined below:

2. All medical exemptions are only good for a “grade span” which “means each of the following:
(A) Birth to preschool, inclusive.
(B) Kindergarten and grades 1 to 6, inclusive, including transitional kindergarten.
(C) Grades 7 to 12, inclusive..”

There is no such thing as a permanent medical exemption

Here is the language:

“All medical exemptions shall not extend beyond the grade span, as defined in Section 120370.”

3. The penalty of perjury part of the physician’s certification has been removed.
Here is the language:

“A certification by the issuing physician and surgeon, under penalty of perjury, surgeon that the statements and information contained in the form are true, accurate, and complete.”

Here is the big one:

“(4) Medical exemptions issued prior to January 1, 2020, shall not be revoked unless the exemption was issued by a physician or surgeon that has been subject to disciplinary action by the Medical Board of California or the Osteopathic Medical Board of California.”

“has been subject to disciplinary action” probably means that the physician has been sanctioned or disciplined by the Board, as opposed to just being the Respondent (defendant) in a Board disciplinary action/proceeding. If so, the exemptions of Bob Sears can be revoked since he has been sanctioned by the Board, but the exemptions of Ken Stoller cannot (yet) because while he is the subject of a current disciplinary proceeding, no disciplinary action has been taken against him. But honestly, I am not sure about that.

Are the medical exemptions written by the disciplined/sanctioned doctors automatically revoked? NO

“(C) A medical exemption that the reviewing immunization department staff member determines to be inappropriate or otherwise invalid under subparagraphs (A) and (B) shall also be reviewed by the State Public Health Officer or a physician and surgeon from the department’s immunization program designated by the State Public Health Officer. Pursuant to this review, the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.”

So an exemption written by a disciplined doctor still has to go through the SB 276 review process before it is revoked. My view is that almost every single medical exemption written by a disciplined physician using broader than CDC contraindications will be revoked.

That means if you have a medical exemption and the writer has been disciplined (or possibly the subject of a disciplinary action), it will most likely be revoked, but it is unclear when. My guess is that there will be some very quick process, because the appeal is just a procedural fig leap to create the illusion of due process.

4. Here is part two of the Bob Sears payback rule:

“(C) If a physician and surgeon licensed with the Medical Board of California or the Osteopathic Medical Board of California is on probation for action relating to immunization standards of care, the department and governing authority shall not accept a medical exemption form from the physician and surgeon unless and until the probation has been terminated.”

So Bob Sears and any other physician who gets probation as a board sanction is out of the medical exemption writing business. I am assuming this provision only applies to post January 2020 exemptions and not exemptions written prior thereto, which under (2) above appear to be valid for the first half of calendar year 2020. But then, you never know with these jokers.

So what’s the bottom line?

Currently, medically vaccine exempt will technically continue to be vaccine exempt until the (i) the physician who wrote the exemption is under a board disciplinary order and (ii) whoever reviews exemptions decides that it is not consistent with applicable standards (CDC, APA, AAFP, ACIP) and if appealed, the appeal affirms the revocation (and pretty much all revocation appeals will be affirmed).

When will that happen? Who knows, but that is what is coming, so plan accordingly.

This is a typical Pan move. Make it look like he’s giving something up to placate the powers he needs to placate, but in reality, he’s turning the thumb screws another full turn on the vaccine concerned/vaccine injured families.

Governor Newsom: If you’re listening, don’t be fooled by this bill/amendment. It does nothing to protect the vaccine injured families. Please reconsider your support for this bill.

And by the way, the community thinks that home schoolers are Senator Pan’s next target.

Rick Jaffe, Esq.
rickjaffeesquire@gmail.com