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
VACCINATE CALIFORNIA APPLAUDS NEW LEGISLATION THAT WILL PROTECT CALIFORNIA CHILDREN BY ENDING ABUSES TO THE VACCINE EXEMPTION PROCESS
FOR IMMEDIATE RELEASE
VACCINATE CALIFORNIA APPLAUDS NEW LEGISLATION THAT WILL PROTECT CALIFORNIA CHILDREN BY ENDING ABUSES TO THE VACCINE EXEMPTION PROCESS
Vaccinate California commends Senator Dr. Richard Pan for introducing legislation to end fraudulent medical exemptions and urges all legislators to immediately pass Senate Bill 276
March 26, 2019 (Sacramento) Vaccinate California, a parent advocacy group working to improve public health in California by raising vaccination rates, today applauded new legislation from state Senator Dr. Richard Pan to curb abuses to the vaccine medical exemption process. Senate Bill 276 would require state health officials to approve all requests for medical exemptions to school-required vaccinations and grant officials the authority to revoke medical exemptions if they are found to be fraudulent or inconsistent with CDC guidelines.
“The health of California children is at risk because a few unscrupulous doctors are preying on unjustified fears about vaccines and selling medical exemptions to parents. Our children, and many adults, rely on herd immunity for survival, and every baseless or fraudulent medical exemption jeopardizes their health and safety,” said Vaccinate California Cofounder and Executive Director Leah Russin. “We applaud Senator Pan for introducing Senate Bill 267 and we urge all California legislators to immediately pass this legislation and protect California children by ending fraudulent medical exemptions to school vaccinations.”
Following a measles outbreak in Disneyland in 2014, California legislators passed Senate Bill 277, authored by Senator Pan, which eliminated all non-medical exemptions to the required vaccines for school entry. The law significantly increased state vaccination rates. Overall vaccination rates for kindergarten students rose from 92.8 percent the year before the bill took effect to 95.1 percent for the 2017-2018 school year, according to California Department of Public Health data. However, the rate of medical exemptions has more than tripled, from 0.2 percent in 2015-2016 to 0.7 percent in 2017-2018.
“Parents across the state who fought to secure SB 277 are once again worried that the significant pockets of personal belief exemptions have now transformed into significant pockets of fraudulent medical exemptions,” added Russin. “Medical exemptions should only be given to those who truly need them. It is once again time for parents, physicians, health officials, and concerned Californians to speak up about the abuse of medical exemptions. It is also time for the California state legislature to act to end these abuses.”
For vaccinations to be an effective measure for preventing diseases such as measles, at least 95 percent of the population must be immunized against a disease; this is known as community immunity or herd immunity. Herd immunity protects the entire community, including those who cannot be vaccinated – such as newborns, children with serious allergies, or children with weakened or failing immune systems, such as children living with cancer – and the small percentage of children for whom immunizations do not work.
“Vaccinate California believes that science, not fear, must govern public policy and that everyone who can get vaccinated should get vaccinated in order to protect those who cannot,” added Russin. “Vaccinations are one of the most effective public health tools ever invented, but community immunity is fragile. Recent measles outbreaks in California and elsewhere are a grave reminder that vaccine-preventable illnesses once thought to be eradicated remain a present threat to public health.”
Senate Bill 276 is cosponsored by Vaccinate California, the California Medical Association, and the American Academy of Pediatrics, California.
For more information on Vaccinate California and the new legislation, visit: https://vaccinatecalifornia.org/.
About Vaccinate California
Vaccinate California is a parent advocacy group working to improve public health in California by raising vaccination rates. Through advocacy, education, and collaboration, Vaccinate California seeks to build a state where all parents have the available resources to ensure their children receive the appropriate vaccinations to protect the health of everyone in California.
SB277 takes effect July 1st, 2016
(print pdf of statement)
SACRAMENTO – As required by SB277, starting tomorrow, July 1, personal belief exemptions are no longer accepted to the vaccination requirements for school attendance in California. Children first entering daycare, kindergarten, or seventh grade must be up to date on their immunizations or have a medical exemption from a licensed physician.
Leah Russin, mother and Executive Director of Vaccinate California, the grassroots coalition of thousands of pro-vaccination parents who advocated for SB277, issued the following statement about the law going into effect:
“This marks the start of a healthier, safer California. With SB277 in effect, vaccination rates will continue increasing as parents protect their children and communities, making our state more resilient to preventable disease outbreak. The new law is already working, improving quality of life, and saving lives. As each new class of children gets immunized, fewer and fewer families will have to face the fear of measles or other debilitating and life-threatening illness.”
SB 277 is already having an impact. The discussion as the bill was considered and the measles outbreak last year are credited with triggering an increase in vaccination rates as discussed by the California Department of Health in the 2015-2016 Child Care Immunization Assessment.
SB 277 was authored by Senators Dr. Richard Pan and Ben Allen and signed by Governor Jerry Brown exactly one year ago on June 30, 2015. The bill was supported by a broad coalition, including the California Immunization Coalition, California Medical Association, March of Dimes, Parent Teachers Association, Black Health Network, American Academy of Pediatrics California Chapter, and many more.