On September 9, 2019, SB276/714 was enacted into California law. Below is a summary of how the new law will affect California children who attend school.
New medical exemptions in California are effectively dead, effective January 1, 2021. If you already have a medical exemption, DO NOT give your medical exemption to the government database that is being created. The government database is reserved exclusively for future ME forms that the CDPH will issue next year.
MEs written before 2020 are grandfathered and should NOT be submitted to the government database. MEs written in the year 2020 are also not submitted to the government database, but MEs written in 2020 are not grandfathered. New MEs written after 2020 will be extremely rare because the law requires they be (1) based on strict CDC/ACIP/AAP guidelines (more detail below re “standard of care”), and (2) submitted to the new government database.
The new government database is essentially a tool to discourage physicians from writing new MEs. Indeed, it is unlikely that physicians will write many new MEs moving forward, because if the CDPH revokes five of that physician’s MEs in any calendar year beginning 2020, the physician is automatically referred to the Medical Board for investigation.
Please see details below. I will also send a follow-up newsletter when CDPH issues official guidance on the new law sometime soon in 2019-2020.
Medical exemptions written prior to January 1, 2020
The new law allows automatic ‘grandfathering’ of any medical exemptions written before the year 2020 (“Old/Current MEs”). That means for any Old/Current MEs written between 2015-2019, families may rely on their Old/Current ME until the child reaches their next checkpoint year (TK/K, 7), at which point the child could only get back into school with a new ME that meets CDC/ACIP/AAP guidelines.
Read this section of the grandfathering law carefully, “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.” Cal. Health & Safety Code section 120372(d)(4).
Disciplinary action means that the physician has been actively disciplined following a complete medical board proceeding. Disciplinary action does not mean that the physician has simply been accused by the Medical Board.
It is unknown whether the “disciplinary action” must be specific to the patient in question in order to invalidate that child’s ME, or whether disciplinary action regarding one child’s ME would somehow invalidate Old/Current MEs for every child seen by the physician. It seems unlikely that the Medical Board and/or CDPH would take the position that disciplinary action regarding one child would categorically invalidate MEs for every other child seen by the physician, but it is too early to know. My prediction is that if the Medical Board disciplines a physician for a physician’s standard practice or methods relating to Old/Current MEs, the CDPH may attempt to rely upon that Medical Board order/ruling in order to invalidate Old/Current MEs for every child seen by the physician.
Reminder: Current/Old MEs should not be submitted to the new government database maintained by the CDPH. See section below “Government Database and Physician Scrutiny” for more detail.
Same Old Requirements for Old/Current MEs
Just as before, any Old/Current MEs can still be rejected by a school if the school determines they do not comply with the legal requirement for a written and signed CA physician’s statement/letter providing: (1) The specific nature of the physical condition or medical circumstance for which the physician does not recommend immunization; (2) That the physical condition or medical circumstance is permanent; and (3) Each specific required immunization from which the student is permanently exempt.
To be clear: Old/Current MEs are not required to meet CDC/ACIP/AAP standards.
Special Note for TK Grandfathering
A child enrolled in TK in 2019 with a medical exemption should be grandfathered until 7th grade, because TK & K are the same gradespan.
Medical exemptions written in the year 2020
The Year 2020 is a unique year under the new law. I will refer to MEs written in the year 2020 as “2020 MEs”.
2020 MEs can be written on a physician’s letterhead/form. 2020 MEs do not need to be written on any government form. 2020 MEs do not need to meet CDC/ACIP/AAP guidelines, but rather they follow the same standard as MEs issued in 2015-2019 (“not considered safe”). However, because 2020 MEs are neither grandfathered nor submitted to the government database, they are basically only useful for one year: 2020. And indeed, the only children who will need 2020 MEs are children entering daycare or a checkpoint year (TK, K, 7) in 2020. Accordingly, I expect that physicians writing 2020 MEs will only write temporary exemptions that expire by the end of the year 2020. Moreover, I expect the CDPH will provide the new government ME form sometime in the year 2020, which will incentivize physicians to adhere to CDC/ACIP/AAP guidelines in 2020.
Medical exemptions written January 1, 2021 and afterward
The Extinction of MEs
Beginning January 1, 2021, the CDPH will require a standardized form for new MEs (“New Form MEs”). The new form will require that the New Form ME comply with CDC/ACIP/AAP guidelines for contraindications and precautions, which are obviously very hard to meet: link.
Notably, the new law also contains a provision that says, “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.” However, based on the legislative history, it is expected that the Medical Board will interpret this section narrowly.
New Form MEs can be written as ‘temporary for 1-year’ or ‘permanent until the next grade span’. A permanent New Form ME must be re-written and re-submitted by the physician at checkpoint years (TK, K, 7) to remain valid.
Under the new law, the CDPH and Medical Board are entitled to contact the physician to discuss New Form MEs, and to access the patient’s related medical records upon request. See Cal. Health & Safety Code section 120372(a)(2)(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.”
The new law also specifies other requirements for the New Form ME, such as: (a) the physician has physically examined the child, (b) the physician is the primary care physician for the child, or else the reason why the primary care physician is not writing the new ME, (c) how long the physician has been treating the child, and (d) an authorization from the parents consenting to medical record sharing with the government.
A child with demonstrated titers can qualify for a New Form ME under CDC/ACIP/AAP guidelines.
Government Database & Physician Scrutiny
Sometime in the year 2020, the CDPH will launch their new government database for New MEs written January 1, 2021 and afterwards. Effective January 1, 2021, the database will be required for any family desiring to rely upon a New ME written January 1, 2021 and aftewards. Old MEs should not be submitted to the new database. The CDPH will use the new database to target the following for CDPH internal review and possible formal investigation of physicians and schools:
“(A) Schools with an overall immunization rate of less than 95 percent.
“(B) Physicians who have submitted five or more medical exemptions in a calendar year beginning January 1, 2020.
“(C) Schools that do not provide reports of vaccination rates to the CDPH.”
All New MEs that meet one of the above categories (A, B, or C) will be reviewed by the CDPH to determine if the New ME meets CDC/ACIP/AAP guidelines. The CDPH will then contact the physician who wrote the New ME to request additional information. If the CDPH decides to revoke the exemption, both the physician and patient will be notified by CDPH in writing. The child can remain in school for 30-days per the Conditional Admission vaccine schedule, and the 30-days are extended further if the family appeals the revocation.
It is possible, though unlikely, that some New MEs will be accepted by CDPH outside of the CDC/ACIP/AAP guidelines, per this section of the new law, “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.” Again, based on the legislative history, it is expected that the Medical Board will interpret this section narrowly.
The new law says that CDPH must review New MEs to look for any unusually high number of New ME submissions. See Cal. Health & Safety Code section 120372(c).
Public Health Risks
The new law allows CDPH to target physicians for Medical Board discipline if the physician writes New MEs and any of the following apply:
“(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.”
Given the pattern and practice of schools wrongly submitting Old/Current MEs to CDPH, it is unclear at this time whether CDPH will attempt to apply the above provisions (A, B, C) to Old/Current MEs. Technically, the above provisions (A, B, C) should not apply to Old/Current MEs because those provisions appear in the section of the new law relating to New MEs, and attempting to apply it to Old/Current MEs would make section 7(B) duplictious and meaningless. However, it is still possible that CDPH in its zeal could interpret the new law to allow targeting of Old/Current MEs.
Other exceptions to mandatory vaccination?
The new law continues to exempt the following children from mandatory vaccination: (1) homeschool families, (2) children with an IEP, and (3) children with a grandfathered personal belief exemption.
Legal Challenges & Solutions
There is hope and action in the works.
Multiple health freedom groups have expressed their intent to bring a legal challenge to SB276/714. And a Statewide Initiative (ballot measure voted upon by the people) is also being considered among health freedom groups to safeguard informed consent in vaccination.