On September 5, 2019, Attorney Leigh Dundas, representing an organization called Advocates for Physician Rights, held an anti-vaccine press conference attended by very little press, and organized by anti-vaccine activists.
Ms. Dundas called for a Department of Justice investigation into what she described as a “multi-year campaign to override laws aimed to safeguard the privacy of minor children,” and made accusations of a cover-up. Note that the Department of Justice receives many and constant calls for actions, so just calling them to investigate means little without actually pointing to serious wrongdoing that justifies it. Ms. Dundas did not point to such wrongdoing.
The anti-vaccine press conference addressed efforts in the early days after the enactment of SB277 to address an emerging issue – fake medical exemptions. But in spite of the efforts to present this as a new discovery or a nefarious plot, it isn’t.
In fact, SB277 opponents knew of the efforts in early 2016 and responded in an aggressive fashion, targeting Dr. Charity Dean, who took the lead in them, with many personal attacks and inclusion in one of their lawsuits. There is also no real evidence of anything nefarious. There is, however, abundant evidence that fake medical exemptions were an issue in 2016 and onwards, and SB276 is directed at a real problem.
In June 2015, former Governor Jerry Brown signed SB277 into law, a bill that removed California’s non-medical exemptions to vaccinations for school-aged children. While the bill removed the non-medical exemption, it did not change California’s medical exemption, which left medical exemptions in the physician’s discretion.
Maybe policymakers should have anticipated what happened next, but nobody did – at least, nobody anticipated the extent of the abuse. A cottage industry of doctors selling medical exemptions arose, with several doctors blatantly publicizing – or implying – their willingness to sell them. Today, several of those physicians are being investigated by the Medical Board of California, but getting at the evidence is not easy when the parents – representing the little patients – are colluding in the effort.
In response, California Senator Richard Pan, MD, who was one of the small group of leaders in the effort to pass SB277, introduced SB276. Among other things, the bill created a review process to examine medical exemptions and a database of them. After discussions with the Governor, in June the bill was changed somewhat to limit the review to schools with less than 95% vaccine coverage, schools who do not submit vaccine reports, and doctors who write more than 5 medical exemptions in a year.
Anti-vaccine activists reacted aggressively to SB276 – even more than to SB277. Besides presenting testimony for their side, they engaged in numerous protests and efforts to increase their visibility – and that is legitimate. Less legitimately, they also engaged in targeting opponents through personal attacks, threats, and harassment.
In the hearing before the Assembly Health Committee, Attorney Leigh Dundas testified against the bill. Attorney Dundas was, as best as I can tell, new to the vaccines struggles in California, and represents an organization called Advocates for Physicians Rights (note that medical associations in California support SB276 and most physicians do not seem to see it as violating their rights). Looking at the website strongly suggests that this organization was created to oppose SB276. Attorney Dundas’ testimony was very passionate.
This week, after the bill passed both houses, SB276 created additional drama when Governor Newsom indicated he may veto the bill if amendments he sought were not included. In an apparent compromise, on September 6, 2019, a new bill was proposed that will make some amendments, most importantly grandfathering existing medical amendments until a child reaches a checkpoint, or unless the doctor issuing them was subject to disciplinary action by the board.
But before the compromise, on September 5, 2019, Attorney Dundas held a press conference calling on the DOJ to investigate what she saw as a “multi-year campaign against disabled and immunocompromised children.”
The anti-vaccine press conference – alleged wrongdoing
Ms. Dundas did not directly provide her written sources, but the core of her allegation is not new and easily identifiable by her description. She referred to a pilot project initiated by Dr. Charity Dean, then health officer of the County of Santa Barbara, aimed at collecting medical exemptions. Not only is this not new information, but it was also challenged by anti-vaccine activists in 2016. Here is a Voice for Choice’s summary, with links to the pilot program and its revised version.
What happened? On June 6, 2016, Dr. Charity Dean sent a letter to superintendents, school principals, and childcare centers directors, asking them to fax medical exemptions to the Immunization Program. The letter mentioned that HIPAA does not limit this.
Anti-vaccine activists submitted letters in opposition – on June 12, 2016, A Voice for Choice, an anti-vaccine organization created during the struggle around SB277, sent a letter of complaint about it, and on June 15, 2016, Attorney Greg Glaser, who worked with several of the anti-vaccine organizations on several projects, sent a letter suggesting that the project, as conducted, may violate the Family Educational Rights and Privacy Act (FERPA) and California Medical Privacy Laws.
In response, on June 24, 2016, Dr. Dean revised her program, now clarifying that the information related to the student is to be redacted, and the review will focus on compliance with the technical details of SB277.
In addition, there were, apparently, several calls related to the project. Dr. Dean and others called on other counties to do similar projects and tried to encourage it.
The efforts were so well known that in one of the first lawsuits against the bill, Whitlow v. the State of California, the pilot project was included as a claim.
Presenting something known since 2016 – something, as stated above, that anti-vaccine organizations publicly reacted to practically since its start – as a new and troubling discovery is unconvincing.
The anti-vaccine press conference – criminal conspiracy
There is nothing in the materials related to the medical exemptions pilot project to suggest criminal activity or even serious wrongdoing.
The only semi-valid point raised is about the Family Educational Rights and Privacy Act (FERPA). Attorney Dundas is probably right to point out that the original letter – where exemptions were requested with identifiable information – was in tension with FERPA (though there are no definitive court rulings on point).
It’s likely that the health department, which does not normally work with FERPA, did not consider the law. That is not something that would trigger a criminal investigation, though. In fact,
- Shortly after the project started Attorney Glaser informed Dr. Dean and the county of that – and within a few days, they revised the project to address the concern and remove any privacy violations.
- FERPA applies to schools, not health departments: regardless of what Dr. Dean asked for, schools were expected not to release protected information if FERPA forbade it.
- Violating FERPA is not a criminal offense – the penalty is for schools to lose federal funding. Even if the schools – not the Department – violated it, it would not be grounds for a criminal investigation.
As for the rest, seeking to have oversight of medical exemptions is not a crime. Ms. Dundas is concerned about the privacy of children, and de-identifying can solve that. At any rate, health departments often collect information about children. As for the doctors, it’s not clear what their legitimate interest is: if the claim is that doctors deserve to have no oversight over exemptions, however abusive, that’s…unconvincing.
In fact, an oversight project aimed at evaluating if medical exemptions are valid is not only not criminal but also is sound health policy. Examining the implementation of a law they’re charged with and checking for abuse is well within the role of health officers. The counties engaging in it were acting in the public health, and within their authority.
Since there was nothing wrong with the effort, having discussions about it, and trying to convince other counties to do it, was not criminal, as well. Ms. Dundas suggested some specific sentences – for example, about the role of county counsel – can be seen as wrongdoing.
She suggested that some statements addressed avoiding public records act requests, and those included using investigations or referring doctors to the medical boards. Both would avoid public record act requests, but both are also legal and, if there’s a suspicion of wrongdoing by the doctors, appropriate.
It’s almost always possible to point to some sentences in discussions and interpret them as wrongdoing. But the core here is an effort to oversee medical exemptions. There is nothing wrong or inappropriate there.
The last part of the video was a reference to a video prepared by another anti-vaccine organization allegedly having quotes from medical practices currently refusing medical exemptions. Dr. Vince Ilannelli, MD, addressed that video on his Vaxopedia blog. Basically, Dr. Iannelli reminds us that with the rise of fake medical exemptions doctors are on high alert for families shopping for doctors willing to write fake exemptions, and a call that is suspicious on its face, as these are, will likely be met with hesitation and pushback. Of course, the edited two minutes video does not even tell us what exactly happened in these calls.
Evidence supporting existence of fake medical exemptions
The press conference suggested that fake medical exemptions are a manufactured or untrue issue. Abundant evidence shows otherwise, that there is a real problem of fake medical exemptions.
First, some doctors – like Dr. Robert Sears, Dr. KellySutton, and Dr. Kenneth Stoller – publicly said things that, while not promising fake exemptions, strongly suggested they will sell them. For example, Dr. Sutton offered guides to avoiding SB277 and getting a medical exemption, and her intake forms suggested that she will consider things that are not valid contraindications as such – for example – a family history of psychological issues or autism are listed on her form.
Dr. Tara Zandvliet also appears to offer exemptions for invalid reasons. Dr. Sears, we know, has offered exemptions with no good basis and to children he has not seen. Dr. Stoller has issued exemptions based on the results of 23 and Me, something that should not be used that way.
In other words, we have doctors who openly imply, or for whom there is clear evidence, that they sell inappropriate and unjustified medical exemptions.
And that problem is not new, it came up shortly after SB277 – for example, the first article on Respectful Insolence discussing Dr. Bob Sears’ guidance on how to get medical exemption appeared in July 2015, right after the passage of the law and before it became official. In it he quoted Dr. Bob Sears’ suggestion to seek out family members with autoimmune diseases, and:
He added: “And everyone has autoimmune disease in their family.” (Nudge, nudge, wink, wink, know what I mean, say no more!) The audience laughed appreciatively. He went on: “So an openminded doctor could use a family history of vitiligo, celiac disease, autoimmune thyroid disease, or other disease on to support a medical exemption.
This was long before Dr. Dean’s efforts.
We also have doctors who sell medical exemptions even though they have no relevant expertise to patients, not theirs. Like Dr. Ron Kennedy.
While that alone does not show the exemptions are not justified, it raises clear suspicions.
Further, while I would rather not share them, there were extensive discussions of fake medical exemptions in closed Facebook groups, and quite a few were sent my way by friendly people. In some, parents openly discuss which doctor would give them an exemption even though they have no medical reasons. In others, they mention reasons such are medical problems in relatives or autism.
Opponents highlight the lack of convictions by the Medical Board of California but ignored the fact that the Board currently has investigations open and subpoena issued to several doctors, including Drs. Sutton, Sears, Kennedy, and Stoller. The process simply takes a long time. Using that – or the early efforts to curb medical exemptions – as evidence against their existence is unconvincing.
In other words, saying the claims of fake exemptions are “manufactured” does not fit the evidence accumulating since SB277. Claiming a conspiracy because health officials wanted to oversee exemptions in early 2016, once it was clear there’s a problem, is unconvincing – and those efforts are far from criminal.
Finally, presenting this as something new is just untrue. In fact, SB276 became necessary after those early efforts failed – in part because of aggressive anti-vaccine efforts to fight them. By promoting fake exemptions, by fighting efforts at oversight, anti-vaccine activists and doctors selling fake exemptions brought the bill on themselves.
This article about the recent anti-vaccine press conference was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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.
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