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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

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

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

Cali. Medical Board is Closing in on Vaccine Exemption Writing Physicians

Cali. Medical Board is Closing in on Vaccine Exemption Writing Physicians

Several vaccine writing California physicians are now under investigation by the California Medical Board. By that I mean that the Board has issued subpoenas to obtain the medical and/or school vaccination records of kids who obtained vaccine exemptions from these physicians. In some cases, the Board investigation is a result of a complaint filed by a parent (usually in a divorce situation where one parent is pro and the other is antivax/vaccine concerned) or by an HMO which acts as the child’s PCP. In other cases, the Board has issued a subpoenas to a school district to identify physicians who have written vaccine exemptions.

In terms of the Board’s ability to obtain patient medical records, the state of the law is that despite the California constitutional right to medical records privacy, in recent times, the California courts have consistently granted the Board access to patient medical records over the patients’ objection.

My view is the fight to protect patient medical records from Board disclosure is basically over in California (except for psychiatric records which are covered by a specific evidentiary privilege which has a higher burden of proof than regular medical records). That brings California in line with pretty much every other state in the country which requires a physician to comply with a board subpoena for medical records, irrespective of the patient’s wishes.

I have no doubt that in all of these investigations, the Board will obtain the medical records of the specific children who are subject of the Board subpoenas.

What will the records reveal? My guess is that in almost all cases, vaccine exemptions were given to healthy children who have a family history or genetic disposition to serious autoimmune conditions. The family history or specific genetic abnormalities, according to the exemption writing physicians, make these children susceptible to severe adverse effects from any and all childhood vaccines, and justify an exemption from all childhood vaccines for some period of time. (This is a distinct minority view at this time).

So, what’s going to happen with these investigations?

(I can speak with some authority because there has only been one Board case, and I worked on it.)

First, after the medical records are reviewed by a Board consultant, the physician will be “invited” to a recorded interview to answer questions from the consultant, the board investigator and the Deputy Attorney General assigned to the case explaining the rationale for the exemption.

(I would advise the physician to be very well prepared for the interview because as the saying goes, “Anything you say will be held against you in a court of [administrative] law.”)

The medical records and the recorded interview will be submitted to two outside medical experts. Both will be pediatricians (if the physician is a pediatrician), and one will be an infectious disease sub specialist. The Board likes to use UC affiliated physicians for added gravitas.

Both will conclude that the exemption was not medically indicated because in essence, there is no medically valid justification for a blanket vaccine exemption for a completely healthy child. Rather, there are specific vaccine contraindications based on each vaccine’s labels, according to the CDC, APA and a bunch of other entities involved in the vaccine issue (to put it neutrally).

Within 60 days from the Board’s receipt of the second expert’s report, an accusation (California term for medical board complaint) will be filed against the exemption writing doctor.

At some point the physician will either fold and accept a stayed revocation/5-year probation or the case will be tried before an administrative law judge who will issue a proposal for decision which proposal will then be reviewed by the Board.

When will this all happen?

My guess is that the accusations against the doctors currently being investigated will be filed by early to mid-2019. At least one of the cases (hint, the one I’m involved in) will go to hearing by late 2019, making the Board’s decision in late 2019 to early 2020. The board has a few months to consider the ALJ’s proposed decision. At that point, the vaccine concerned community and the exemption writing physicians should have an idea of whether these vaccine exemptions will be allowed or are Board disciplinable offenses.

It’s going to be interesting, and there will be some surprises, I promise!

Rick Jaffe, Esq.
www.rickjaffe.com
rickjaffeesquire@gmail.com