California SB276 – legislation to reduce vaccine medical exemption abuse

June 22, 2019

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.

SB276 details

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.102 1:22 PM – Jun 20, 2019 Twitter Ads info and privacy 46 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.

Notes

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.