California SB276 – legislation to reduce vaccine medical exemption abuse
On 20 June 2019, after a long day of testimony on California SB276 from both sides of the mandatory vaccine issue, the assembly health committee voted 9 in favor, 2 against, and 2 abstaining to move forward with the bill which can prevent fake medical exemptions.
This post will describe the amended bill and then shortly address the day’s events.
On 22 May 2019, the California Senate voted in favor of SB276. The bill then passed to the assembly and was assigned to be heard in the Assembly health committee. However, in early June Governor Gavin Newsom expressed concerns about the bill. There followed negotiations between the Governor’s office and the bill’s initiator, Senator Richard Pan, MD, which ended with a substantially amended bill.
I will say now that while SB276 makes concessions, I think overall it is a better, and stronger system, which preserves legitimate medical exemptions and correctly focuses on the doctors writing fake exemptions as the source of the problem, and creates tools to deal with them. And at any rate, the Governor expressed willingness to sign the amended bill – and a signed bill is better than a vetoed one.
In terms of concessions, the main concession of the bill was to remove the ex-ante general review process. In the original version, every medical exemption would have to be reviewed before it is approved. In the new version, a physician would have to submit a copy of the exemption to the department, and the department would create a system to review medical exemptions from schools with less than 95% immunization rates or doctors who submitted more than 5 exemptions.
Examining the SB276 compromises
So a medical exemption for a child in a school with high rates, whose physician only grants a very rare exemption, will not be reviewed.
I think this is a reasonable compromise for SB276. It creates criteria to identify problem spots – problem schools and problem doctors – but saves concerns and efforts for those in non-trouble spots. Yes, it may mean that some children will not face oversight, but there are other measures to oversee problem doctors, and limiting oversight to problem spots would probably already happen in practice, because of scarce resources.
For existing exemptions, the process is a bit more complex. They need to be submitted to the Department of Health by January 1, 2021, but to trigger a review by the department, a local health officer has to determine that the exemption “is fraudulent or inconsistent with applicable federal Centers for Disease Control and Prevention (CDC), Federal Advisory Committee on Immunization Practices (ACIP),” and request review.
In both cases, if an exemption was found invalid the amended bill creates an appeal process. It also clarifies that the officer will be “clinically trained.”
It also broadens the grounds for exemptions: where previously only CDC contraindications and precautions could be valid, no other grounds could be allowed if they are “consistent with the relevant standard of care.”
These changes likely allow for more medical exemptions than under the original act, and more medical exemptions to stand, but they still create oversight. I am comfortable with allowing more discretion than CDC guidelines – extraordinary or complex cases may come up that do not completely fit the guidelines but still merit exemptions, and the process assures that doctors can address these cases while leaving in place a review.
Oversight of physicians writing medical exemptions
Where SB276 adds very strong provisions is in relation to the physicians writing medical exemptions. One reason I am not very worried about the relaxation of some of the elements of the original bill is that these provisions, I think, give powerful tools to deal with physicians abusing their discretion.
First, as with the original bill, the physician needs to actually see the child – no more online or phone exemption.
Second, physicians who are not the child’s treating physician need to notify the child’s treating physician of the exemption. This allows the treating physician to respond to any misinformation in the exemption if needed. Further, they can – if they choose – file a complaint with the medical board against an abusive physician, based on their knowledge.
Third, the form requires the physician to clearly address the contraindication to each vaccine the child is exempt from – no more blanket exemptions from all vaccines for all time with no detailed explanation.
Fourth, the physicians need to certify, under pain of perjury, that the information in the form is accurate. It is unclear whether the state will aggressively act against physicians who are found to have been less than fully truthful on the act, but the possibility of a criminal sanction provides a big stick in the background.
Fifth, the amended bill provides that the parents agree to release the records related to the exemption as part of the medical record form, solving the problems the medical board faced in retrieving records from parents to investigate a claim of fake exemptions.
Sixth, physicians cannot charge for filing an exemption form (though they can charge for an examination), or for renewing a temporary medical exemption (a direct response to the practice of some doctors that only wrote temporary exemptions and made money by charging for renewal).
Finally, and most importantly, the amended bill gives the department of health powers to stop accepting exemptions from a physician in two circumstances:
- if the department determines that a doctor poses a risk to public health,
- or if there is a pending accusation before the medical board related to “immunization standard”.
In other words, the department can completely shut off the ability of an abusive doctor to write exemptions. Together, these provisions make it much harder for doctors to abuse their discretion and write fake exemptions. I think the stronger oversight more than makes up for any weakening of the process.
The SB276 hearing and review
Opponents made much of SB276 requiring a doctor that writes more than five exemptions would be subject to review; and some doctors – for example, those routinely treating children with cancer, may indeed write more exemptions than others. But a review does not mean rejection – physicians treating vulnerable children who should be exempt can write many exemptions, and those will be reviewed and should be approved.
So what happened today? The usual format of such a hearing is an introduction of the bill by its sponsoring legislatures, testimony from both sides – time-limited expert witness testimony, and not time-limited “me toos” – people saying their name, affiliation, and whether they support or oppose the bill. Then there is a discussion by committee members, and then a vote.
The procedure followed that process, but there were some interesting things. There was a morning discussion, and the discussion of the bill started at around 10:40 and went until around 5.
Anticipating a large and aggressive anti-vaccine crowd, the assembly members prepared carefully, allocating an outside area to them and making clear that the number allowed in the building will be carefully limited (to 700 – not a small number), and members will be allowed in to express their support in batches.
The supporters were also provided space, separately, and aside from the few allowed in the room, watched the proceeding on a screen and only went into the room to express support.
Opponents brought with them signs – likely to get around the fact that they were not allowed to speak during the “me toos” – and had yellow stickers saying “lie” on their hands to lift.
Opponents held a rally at 8:30, and gave speeches. Among other things, anti-vaccine activists Robert F. Kennedy Jr. compared the bill to the way Jews were treated in the Holocaust, leading the Jewish Caucus of California to call the comparison out:
CA Jewish Caucus@CAJewishCaucus
.@RobertKennedyJr – Please stop making comparisons between the Holocaust and vaccines. It’s offensive.1021:22 PM – Jun 20, 2019Twitter Ads info and privacy46 people are talking about this
Testifying in support of SB276 was a mother of an immunocompromised child who explained the risk fake exemptions pose to vulnerable children, a representative of the California Medical Association, and a health officer. The “me-toos” included representatives of several important organizations, including teachers, nurses, doctors.
Much of the work of organizing the supporters, and on amending the bill, was done by the bill sponsors, including the American Academy of Pediatrics-CA , the California Medical Association, and the grassroots organization Vaccinate California lead by Ms. Leah Russin. Vaccinate California had a leading role at organizing the supporters on site.
The opponents brought several witnesses from out of state, including Attorney Kim Mack Rosenberg from New York and Robert F. Kennedy Junior. They also presented a parent of an alleged vaccine-injured child, and two doctors, including Dr. Bob Sears, who has been – and is – under investigation by the medical board, among other things for fake medical exemptions.
Robert F. Kennedy was, apparently, supposed to testify, but the other witnesses used up the allotted time. Anti-vaccine activists complained about that, but the time allotted was equal between the sides – if anything, the opponents got extra time, since one witness who was signed up as neutral was clearly opposed to the bill.
The opponents “me-toos” were lengthy, as many people presented their opposition. Many held signs or tried to give additional comments, and in some cases, the microphone had to be shut down.
After the testimony, the committee discussed the bill – with Dr. Pan fielding many questions. Dr. Pan’s behavior throughout was impressive – in the face of angry sounds from the opponents, and more than one nasty comment, he remained cool, collected and professional, answering questions – some repeated – patiently and at length.
The final vote was 9 for the bill, 2 opposed, and 2 abstaining.
Opponents, visibly very upset after the vote, remained in the building, singing songs and shouting slogans.
SB276 is now moving to the Assembly appropriations committee, and if successful there, to the assembly floor and to the desk of the Governor, who has already expressed support of the amended bill.
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
Governor Newsom Announces Support of SB276 with Amendments
Good news! Governor Gavin Newsom has announced his support of SB 276.
Dr. Pan and the sponsors of the bill have agreed on amendments that will ensure fake medical exemptions do not undermine community immunity. This means SB 276 has the Governor’s FULL SUPPORT as we head into Thursday’s hearing.
The amendments make clear that exemptions will be reviewed if they are:
- Written by a doctor who has signed more than five exemptions in any year
- Written for a child who attends a school where fewer than 95 percent — the immunization threshold for preventing outbreaks in a community — of its students are up to date on vaccines
For more information, check out the current version of the bill, and read the article on the amendments from the Los Angeles Times.
This was all made possible because of your calls and emails urging Governor Newsom and the Assembly Health Committee to support the bill. Thank you for all you have been doing! Please keep calling and sending messages — the Assembly Health Committee will consider the bill THIS THURSDAY.
LETTER: Unlike the abortion choice, vaccination impacts many
Re: “Walters: Newsom comment links California vaccination, abortion debate” (Opinion section, Mercurynews.com, June 5):
In his column on Gov. Gavin Newsom’s misguided anti-vaccine comments, Dan Walters uncritically conveys an anti-vaccine fallacy: Support for increased vaccination rates is inconsistent with support for women’s reproductive rights. How, Walters wonders, can the governor support the tougher vaccine requirements of Senate Bill 276 and still support a woman’s right to choose? The answer is simple.
A woman has autonomy over her own body. The decision about whether to have an abortion is between her and her doctor because the decision affects only her. When parents pursue fraudulent medical exemptions, they are making a choice that affects others, including children unable to be vaccinated.
SB 276, cosponsored by California physicians, addresses only fraudulent medical exemptions and leaves legitimate medical exemptions intact. Anyone opposing SB 276 in the name of the ‘physician-patient relationship’ is really saying that a few cheaters should be able to jeopardize the health of all our children.
Leah Russin, Cofounder, Vaccinate California, Palo Alto
Original letter in the Mercury News
California’s Vaccination Rate Slips as Medical Exemptions Rise
In the past few years California has gained ground in its fight to protect children from infectious diseases. But new data released this week shows that the state’s vaccination rate declined for the second year in a row.
Last fall 94.8 percent of California kindergartners had received all their shots, down from 95.6 in 2016-2017. That drop may look small, but California has about as many kindergartners as Wyoming has people. The most recent figures show that California now falls below the Centers for Disease Control and Prevention’s recommended vaccination rate of 95 percent, considered necessary to protect a community from disease outbreaks through herd immunity. Those numbers also obscure big differences in vaccination rates from one zip code to another, from as low as 19 percent in one community in northern Los Angeles County to as high as 99 percent in Watsonville, a farm town in Santa Cruz County.
Four years ago, following a measles outbreak in Southern California that began at Disneyland, California passed Senate Bill 277, a law that eliminated parents’ ability to opt out of mandated vaccinations for their kids based on personal beliefs. At first, the law seemed to be working. When it was passed, 2.4 percent of kindergartners in California weren’t vaccinated because of a personal belief exemption; today, that figure is zero.
But children can also skip vaccinations if they receive a permanent or temporary medical exemption from a doctor; these are typically given to children who have health conditions, like immune system disorders, that contra-indicate vaccination. Five years ago, just 0.2 percent of California students received a permanent medical exemption, while 2.5 percent claimed a personal belief exemption, or PBE. Since the PBE’s elimination, permanent medical exemption (PME) rates have begun to climb, from 0.7 percent to 0.9 percent for the past year.
California Department of Public Health data suggests that communities in which PBEs were popular in the past may now be obtaining PMEs. As Barbara Feder Ostrov reported in Kaiser Health News earlier this spring, many schools that previously claimed the highest PBE rates now have high PME rates.
New data released this week backs up this analysis. The California schools with the highest exemption rates today—we’re talking rates of 40, 50, even 64 percent of a group of a few dozen kindergartners—had PME rates of zero five years ago. So five years ago, kindergarten classes at these schools had no children whose health was compromised to the degree that they could not medically handle immunizations. At the time, those same schools claimed very high PBE rates—ranging from 35 percent to 87 percent. About half of the schools with the highest PME rates are Waldorf schools. (Waldorf schools follow an educational model developed by Rudolf Steiner and Emil Molt that emphasizes bringing out each child’s individual potential in a way that serves humanity.)
Take Yuba River Charter, a Waldorf-affiliated school in Grass Valley, California. (Grass Valley is northeast of Sacramento, in a county where 10.6 percent of kids have a PME and only 80.3 percent are fully vaccinated.) In 2013, more than two-thirds of Yuba River Charter’s kindergartners claimed personal belief exemptions. Today, that figure is zero. But just 36 percent of students at the school are vaccinated, with the remainder claiming a permanent medical exemption. (Administrators did not respond to a request for comment.)
Private schools have lower immunization rates than public ones: This year 95 percent of children entering public kindergarten had all their shots and 0.7 percent had medical exemptions, while 92.9 percent of private school kindergartners were fully vaccinated and 2.4 percent claimed permanent medical exemptions.
The permanent medical exemption rates don’t tell the whole story, says Leah Russin, executive director of Vaccinate California, a parent group that advocates for vaccination. (WIRED contributor Renee DiResta is a cofounder of Vaccinate California.) Russin explained that the state also reports on the percent of students who enter schools conditionally—meaning they aren’t fully vaccinated but plan to be in the future. Those numbers include students who have received a Temporary Medical Exemption from their physician. “Kids might not receive a permanent exemption because a temporary exemption is all that’s being offered by the doctor they’re working with,” Russin says. “There’s one doctor who will give a 90-day temporary exemption if you call, and then you have to follow up and get one for a longer term.” (Earlier this year Voice of San Diego identified a single physician behind one-third of medical exemptions written for students in the San Diego Unified School District.)
Through a public records request, Russin received data from the California Department of Public Health that breaks out the share of students who received temporary medical exemptions. In the 2018-2019 school year, dozens of schools had TME rates of 10 percent or higher, while their PME rates are low. At Highland Hall Waldorf school, in the Northridge area of Los Angeles, 34 percent of students have a temporary medical exemption, while only 4 percent have a permanent exemption. Thirty miles east in Altadena, it’s a similar story at another Waldorf school. “All members of our association are independent and make decisions in accordance with our membership and accreditation criteria,” says Beverly Amico, executive director for advancement at the Association for Waldorf Schools of North America. “These criteria include the expectation that all schools be compliant with national, state, provincial, and local laws.”
The augmented California data, which Russin shared with WIRED, shows a statewide TME rate of 0.2 percent—that’s on top of the 0.9 percent of students receiving permanent medical exemptions, bringing the state’s total medical exemption rate to 1.1 percent.
Click here for a larger view of this map.
The rise in medical exemptions has not gone unnoticed. Last month the California Senate passed SB 276, a bill that would set statewide standards for medical exemptions. Authored by California senator Richard Pan, a pediatrician from Sacramento, the bill aims to reduce the rising rate of medical exemptions in the state and is supported by the California branch of the American Academy of Pediatrics and the California Medical Association. The bill now moves to the California State Assembly for consideration; there are questions about whether governor Gavin Newsom will sign the bill should it reach his desk.
The rise in medical exemption rates isn’t entirely a surprise, says Catherine Flores Martin, executive director at the California Immunization Coalition, a Sacramento-based nonprofit that supports immunization. “We knew that after SB 277 passed the medical exemptions would go up, because we thought that some PBEs might really be medical exemptions that weren’t formalized by the parent.” But the rates continue to rise. “Some physicians are writing these exemptions for things that do not fall under established guidelines, and that’s not safe for public health.” Senator Pan’s bill doesn’t mandate immunizations, Flores Martin says; parents who choose not to can, for example, opt to home-school their kids. “Nobody is forced to vaccinate their children.”
No one in California is forced to vaccinate children, but in the wake of a measles outbreak in Brooklyn, the New York City health department recently mandated that people who work or live in four zip codes get the measles, mumps, and rubella vaccine or face a $1,000 fine. (Medical exemptions, however, are permitted.)
Last month a paper in The Lancet Infectious Diseases identified the 25 US counties most at risk of a measles outbreak. Three California counties, Los Angeles, San Mateo, and San Diego, made the researchers’ top 25 list. According to California Department of Public Health data, while 98 percent of San Mateo kindergartners and 96.4 percent of LA kids received the MMR, only 94.3 percent of San Diego kids were fully protected against measles, below the herd immunity level of 95 percent. This year 51 people have contracted measles in the state, with 10 cases in Los Angeles to date.