Let me start with a little disclaimer…..while I am a licensed attorney in the State of California, I am not your attorney and the opinions of this blog post should not be construed as legal advice.
Many of us here in California are reeling from the events of the last couple of weeks and of Monday in particular. We have a lot of questions and there is a ton of uncertainty right now. Many of us are sick about what the passage of these bills means in the whole scheme of things but I think more of us are concerned with the immediate question of how will this bill impact my vaccine-injured child and his/her sibling right now? I have a lot of “theories” about what is happening behind the scenes and how I think the implementation of SB276 + SB714 is going to work. I absolutely might be wrong but for now, I will be making decisions for my own family based on these beliefs.
First and foremost is the “big picture.” I believe that SB276 and SB714 will be defeated in a court of law. I believe that these laws are unconstitutional and will ultimately be struck down. I also believe that there was a criminal conspiracy involved in the violations of a host of Federal FERPA and HIPAA laws and I pray that those involved in this conspiracy will be brought to justice in a court of law. Personally I think that a resignation isn’t enough – some of these perpetrators should be behind bars but that isn’t up to me and alas, I digress. While I also understand why there are and will continue to be attacks on SB277 and the most recent vaccine mandate laws passed in New York on religious grounds, I personally do not believe that those legal challenges will be successful based on the existing legal precedence in today’s environment (but I see this changing over the next decade so I reserve the right to ultimately be wrong on this point). In any event, the legal challenges to SB276 + SB 714 will take time and I’m guessing it will be years before we see a case make it all the way to the US Supreme Court. So all of that to say that for my family, we are planning to stay in California (my children are 5th generation natives here) while the battles are being fought in court and we need to figure out our school options for the next 3-5 years.
Now let’s talk about the status of current Medical Exemptions (“ME”) in California under these new laws. If your child is enrolled in school with an existing ME on or before 12/31/2019, that ME is grandfathered in until your child reaches the next grade span. Grade spans are: birth to preschool, kindergarten (including transitional kindergarten) through 6th grade, and grades 7-12.
On its face, it seems like if you are early on in the grade span that it will buy you some time but I’m not sure in practice that it actually will. I say this because even if you have a grandfathered in ME, it can still be revoked if it was written by a doctor subject to disciplinary action by the MBC. Virtually every doctor in California who had been routinely writing ME’s under SB277 guidelines and legislative history is under investigation by the MBC as we speak. My theory is that we will see them disciplined (perhaps for something other than ME’s like Dr. Sears was) after the 1st of the year so that you will not have time to get a different ME submitted under the grandfathering clause. I hope I am not right I plan to move forward under these assumptions.
So what happens then? You would need to submit a new exemption under SB276 guidelines and good luck qualifying or finding a doctor willing to write one for you even if you have an exceptional situation.
People seem to be asking a lot of questions about the timeline – how long will it take between a doctor being disciplined and your ME being revoked? How long will the appeals process take? Etc. I’m sorry but I think you’re asking the wrong question. What difference does it make if it takes a month or six? At the end of the day you’ll be either pulling your kid from school, moving from CA or vaccinating and a few months isn’t going to make much of a difference and will be incredibly disruptive and traumatic for both you and your child if you get pulled from school mid-year. I don’t think we should be downplaying the fact that basically every single ME is essentially invalid as of today and probably by the end of the 2019-2020 school year you will have been notified of the same.
I’ve also gotten questions about how the government will even know who wrote your exemption if you are grandfathered in? Well, we know that there have been almost 200 reports to the MBC about “fake” MEs – where did this information come from? The answer is that it’s been the schools, Kaiser, and the CDPH (acting on information they illegally obtained from the schools) who have been referring cases to the MBC. Schools have to report their immunization totals annually – now, if the school falls below 95% in full immunization rates that triggers an investigation. This is important because your grandfathered ME can’t be revoked due to the overall school rates BUT those rates can legally provide the CDPH with more information about who wrote your exemption and if that doctor happens to be one of those disciplined (which I’ve already suggested is likely going to be the case) you’re out of luck.
Here’s an example….when I took a look at the school my boys would be going to, its overall immunization rate last year was 94% which means that all of the exemptions at that school will be looked at. Let’s be clear about how ridiculous this is. There aren’t 6% of students with ME’s at this school, in fact, the percentage of ME’s is only 1.5% which equates to 2 students in the class of 133. But regardless an investigation is triggered. Our doctor has an active investigation pending so my guess is that if I send my kids to this school our grandfathered in exemption would be revoked probably in the spring of 2020 but perhaps not until registration for the fall.
Bottom line, don’t let the dates fool you into a false sense of security. This bill is a mess and it is designed to snuff out all existing MEs and chill all doctors from writing any in the future.
But if you want to take your chances and see how far you can stretch this out (and we’ll absolutely need people to do this for the legal challenges to come), my thoughts are to get your child into T-K or Kinder if you can and haven’t already before 12/31/19. Private schools might be a better option for this if you can speak to the administration and understand how they will handle your private ME information – even in the event that the CDPH comes asking for it. If your only option is public school, I would try to get into a school with vaccination rates over 95%. I am still considering this option for my family as I think we can handle a mid-year disruption if it comes to that and I will have a backup plan for homeschooling ready to go. It will take a while to schedule appointments with the school administrators and we really only have a few months before that grandfather clock strikes midnight so I do not recommend waiting to start planning your individual educational strategies.
If you have any questions about your existing ME in light of the new California laws that I didn’t address here feel free to leave a comment below and I’ll do what I can to help.