California Legal Update re SB276/714

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.

Overview

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

          Grandfathering

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.

          Titers

A child with demonstrated titers can qualify for a New Form ME under CDC/ACIP/AAP guidelines.

Government Database & Physician Scrutiny

          Orwellian Database

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.

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Protect Constitutional Rights – Join A New Lawsuit Challenging SB277

This post may be considered an
advertisement for legal services.

California Health Freedom lawyer Greg Glaser is planning to bring a constitutional challenge to SB277 (California’s mandatory vaccination law).

Unlike previous challenges to SB277, this new lawsuit will focus exclusively on Christian families restoring our Constitutional right to a religious exemption.  So Greg is seeking Christian homeschooling families in California who are willing to be plaintiffs.  Greg assures there is no cost to the plaintiffs, and family privacy will be safeguarded every step of the way.

If you are potentially interested in being a plaintiff, your family would need to have a completely unvaccinated (natural) child, where your family matches this general description: The child is age 6 or older, and completely unvaccinated and healthy.  The family is Christian and very health conscious (i.e., eats all organic, chooses exclusively natural remedies). The parents and child currently homeschool, and do not have a medical exemption to vaccination.

— Note that Greg also provides free legal services
to all people seeking exemption to vaccination —

Please Contact Greg

If you are interested in learning more about potentially joining this lawsuit as a plaintiff, you can please contact attorney Greg Glaser at (209) 785-8998, or greg@gregglaser.com

 

This post may be considered advertising in California under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements.

 

 

New Petition Announced This Month To Close Two Loopholes Allowing Forced Medication and Quarantine

(NaturalNews) In December of 2011, Natural News was the first news organization to report a major loophole in American emergency laws – the loophole gives public health authorities ambiguous discretion to forcefully separate parents and their children during emergencies, and then vaccinate the children: Loophole in Vaccine Law, by Greg Glaser (November 2011).

Fortunately today, two health freedom attorneys for the Pandemic Response Project (PReP) are working to close this loophole at the State level (starting in California) through a proposed new law called the Peaceful and Natural Dignity Act (PANDA). We are asking fellow health freedom supporters to watch our informative video and sign the petition at Change.org, to help us put the new proposed law before the California legislature for debate: Read and sign the health freedom petition.

In summary, the proposed PANDA law explicitly confirms the fundamental right of peaceful and non-incarcerated individuals and families to:

(a) Remain free of forced medical treatment during times of peace and emergency, and
(b) Self-quarantine on private property during times of emergency.

So PANDA would close two loopholes in California’s emergency response laws that threaten to: (1) quarantine and criminalize individuals for remaining un-medicated, and (2) strip families of custody rights for remaining un-medicated.

Apart from California, other States in the Union are also vulnerable to the same loopholes described above. Accordingly, the PReP attorneys hope to tailor a PANDA statute for each State.


Greg Glaser
(originally published on Natural News on December 20, 2013)

Potential loophole in vaccine law could mandate vaccines in children during declared emergency

(NaturalNews) In times of peace, every State in America allows exemptions from vaccines on religious, moral, and/or philosophical grounds, so vaccines are never technically mandatory. [1] Parents even have the power to assert the exemptions of their children. [2] The US government also admits that vaccine exemptions are available during both peacetime and during an emergency for parents and children alike. [3]

However, there is a potential loophole applied to children specifically that could theoretically be exploited by the powers-that-be. During an emergency, if a parent exercises a vaccine exemption, they can be placed into quarantine or isolation to ‘protect the public’. [4]

Once the parent is placed into quarantine/isolation, there is no guarantee that the unvaccinated parent and child will remain together in the same quarantine/isolation area (see legal citations below), so a parent can automatically lose his/her ability to provide guardianship to his/her minor children.

Thus, the children can become wards of the State upon a parent’s refusal to accept vaccination. And the State can be expected to vaccinate the children at its first opportunity, or put them in the care of a family member willing to vaccinate. [5]

In order to close this loophole and protect the right of children to be peacefully natural, States should do the following:

First, pass a clear law that parents in quarantine or isolation do not lose their fundamental parental rights to assert their child’s vaccine exemption.

Second, pass a clear law that during a declared emergency families shall be entitled to self-quarantine together by remaining on private property until cleared to leave by the family’s medical or naturopathic doctor.

Legal Overview Exposing the Loophole

Quarantine laws have traditionally been interpreted to be within the State police power to regulate “public health and safety.” [6]

Citizens can view the quarantine and isolation laws in their state by navigating to the table on State quarantine law provided by the National Conference of State Legislatures (2010). [7] In California, for example, the rules are very open-ended and therefore deferential to the State. [8]

According to a year 2010 law review article, “A search of California health codes and local ordinances shows that California merely grants health authorities the power to quarantine but does not implement a system of overseeing the quarantine process… In fact, similar to California, many states have historically lacked comprehensive quarantine procedures and developed their quarantine regulations on an ad hoc, disease-by-disease basis.” [9]

Importantly, States have also been passing provisions of the (military-sponsored) Model State Emergency Health Powers Act. [10] This Model Act contains no safeguards allowing parents to stay with their children during quarantine. Safeguards are limited and frequently ad hoc — historically, and also by some State statutes today, public health authorities have allowed families to quarantine together in certain instances — it appears to depend on the nature of the perceived threat. [11]

At the federal level, the Public Health Service Act (42 U.S.C. section 264) and its CFR regulations (42 CFR parts 70 and 71) give the government wide discretion in quarantine powers. [12]

Even the hospital sector (which stands at the ready to implement public health orders) recognizes its role in separating and unifying parents. For example, according to the emergency response guidelines of the American Academy of Pediatrics (2009), hospitals should prepare “A plan that minimizes parent-child separation and includes system tracking of pediatric patients, allowing for the timely reunification of separated children with their families.” [13]

How comforting is this? Can we really expect unvaccinated (natural) children to be processed by the system of state and hospital control without being needled?

Indeed, in the midst of an emergency, just imagine the logistics of ensuring an unvaccinated child asserts his/her proper vaccine exemption throughout each stage in a quarantine processing. Medical professionals relying on government FAQ papers and Fact Sheets to understand their responsibilities during an emergency are likely to feel they have the power to vaccinate (and more) in the parents’ absence. [14]

End Notes

(1) See e.g., Vaccine Legal Exemptions, by Alan Phillips (2011). See also, Constitutional Law Analysis Memo on Forced Vaccination During Emergency, by Greg Glaser (October, 2010).

(2) Id.

(3) See e.g., Mandatory Vaccinations: Precedent and Current Laws, by Congressional Research Service (February 2011). See also, Glaser, supra.

(4) Id., Federal and State Quarantine and Isolation Authority, by Congressional Research Service (January 2007). A “quarantine” is either like ‘house arrest’ or a ‘concentration camp’ with others. By contrast, “isolation” is like a prison cell for one person.

(5) See e.g., California Welfare and Institutions Code section 300 et seq.

(6) See e.g., Morgan’s L. & T.R. & S.S. Co. v. Bd. of Health (1886) 118 U.S. 455; Compagnie Francaise de Navigation a Vapeur v. State Bd. of Health (1902) 186 U.S. 380.

(7) It appears noteworthy that the National Conference of State Legislatures highlights in terms of State power, “The parens patriae power is the power of the state to serve as guardian of persons under legal disability, such as juveniles or the insane. See Heller v. Doe, 509 U.S. 312, 332 (1993) (‘[T]he state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves….’)”

(8) “Each health officer shall enforce all orders, rules, and regulations concerning quarantine or isolation prescribed or directed by the department.” Cal. Health and Safety Code section 120195. “Each health officer, whenever required by the department, shall establish and maintain places of quarantine or isolation that shall be subject to the special directions of the department. Cal. Health and Safety Code section 120200.

“A person subject to quarantine or strict isolation, residing or in a quarantined building, house, structure, or other shelter, shall not go beyond the lot where the building, house, structure, or other shelter is situated, nor put himself or herself in immediate communication with any person not subject to quarantine, other than the physician, the health officer or persons authorized by the health officer.” Cal. Health and Safety Code section 120225.

“All physicians, nurses, clergymen, attendants, owners, proprietors, managers, employees, and persons living with, or visiting any sick person, in any hotel, lodginghouse, house, building, office, structure, or other place where any person is ill of any infectious, contagious, or communicable disease, shall promptly report that fact to the health officer, together with the name of the person, if known, the place where he or she is confined, and the nature of the disease, if known.” Cal. Health and Safety Code section 120250.

(9) A History of Abuse and Lack of Protection: The Need to Update California’s Quarantine Powers In Light of the H1N1 Influenze Outbreak, by Arsen Kourinian, Loyola of Los Angeles Law Review, Vol. 43:693 (2010).

For illustrative purposes, see also the “Procedures for isolation or quarantine” in the State of Washington: WAC 246-100-040. And see also this Massachusetts law, “The Department or local board of health may authorize physicians, health care workers, mental health workers, personal care attendants, parents or guardians of minor children, and others access to individuals in isolation or quarantine as necessary to meet the needs of isolated or quarantined individuals.” Massachusetts Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements, 105 CMR 300.210(H)(2)(e).

(10) According to the quasi-military Center for Law and the Public’s Health, even as of 2006, “thirty-eight (38) states and the District of Columbia have passed sixty-six (66) bills that include provisions from or closely related to the Act. The extent to which the Act’s provisions were incorporated into each state’s laws varies.” Legislative Surveillance Table.

Regarding the military-industrial complex role in vaccines, see Constitutional Law Analysis Memo on Forced Vaccination During Emergency, by Greg Glaser (October, 2010).

(11) See e.g., Paula Mindes, Tuberculosis Quarantine: a Review of Legal Issues in Ohio and Other States, 10 Journal of Law and Health 403-418, 408-413, 418-423 (1995-96) (“The public health powers in state statutes include: compulsory examination and treatment, emergency detention and quarantine. Quarantine may be defined as either in-home isolation or commitment to state facilities. These measures are accomplished through public health orders or court orders. Some states have civil and/or criminal penalties for failing to comply with a such an order. Other statutes do not spell out penalties. Some statutes define which diseases are contagious and therefore subject to quarantine regulations. Others authorize state health departments to decide which illnesses are contagious. Some empower public health authorities to make quarantine or isolation decisions without any direction as to illnesses or conditions. Thirty-three states permit authorities to isolate people in their homes. In most cases there are no due process protections specified out in the law. Forty-two states permit commitment to treatment facilities. Thirty-six states require a court order to commit someone to a facility. Several do not require a court order or a hearing. Generally court orders will be initiated by a petition from public health authorities requesting a hearing. Written notice to the person concerned is usually required, but the hearing may be held with or without the patient. Only thirteen states explicitly grant the right to be represented by counsel in any part of the proceedings. Of these, eleven will provide counsel to indigent individuals. Release is accomplished when a determination is made that the person is no longer a threat to the public health, or no longer infectious. Some statutes specify criteria for release which may be vague (“no longer a danger to the public health”) or specific (evidence in sputum tests that the person is no longer actively contagious). Ten states have no statutory time limits on the length of time a patient may be held without discharge or recommitment. In many states the only explicit due process protection afforded persons who are quarantined is the opportunity to petition the court for release.”)

(12) See for example the FEMA guidelines, because as noted by the American Academy of Pediatrics in a letter to FEMA, dated November 9, 2007, “ESF #6 fails to address how it will support States or other entities in caring for children whose caregivers may be killed, ill, injured, missing, quarantined, or otherwise incapacitated for lengthy periods of time. Legal and other issues must be addressed in the case of children who may require non-family care for weeks or months, or who must be taken into the care of the State.” FEMA rejected this recommendation, as can be seen in both ESF #6 — Mass Care, Emergency Assistance, Housing, and Human Services Annex (January 2008) and ESF #8 — Public Health and Medical Services Annex (January 2008).

(13) See, Emergency response guidelines of the American Academy of Pediatrics (2009).

(14) See e.g., Overcoming Legal Obstacles Involving the Voluntary Care of Children Who are Separated from their Parents During a Disaster. Journal of Pediatric Emergency Care, by Foltin G., et al (June 2008).


Greg Glaser
(originally published by Natural News on November 7, 2011)