This article about California SB276 and fake medical exemptions for vaccines 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.
If the headline seems obvious, the reason behind it is that the Second District of the California Court of Appeal just ruled on a case in which the claim that California SB276 prevented the juvenile court from overturning a medical exemption was used by a father who did not want his children, in the custody of the state, to be vaccinated.
There are two takeaways from the case. First, a reminder that when children become wards of the state, the state can order appropriate medical care, the kind that responsible parents would provide, including vaccination. Second, a ruling that SB276 added to those with authority to revoke medical exemptions, it did not remove existing authority to do so.
This California SB276 case
In August 2019, a court ruled that three children will be taken from their parents because remaining in the parents’ home would be “contrary to the children’s welfare.” The removal drew on a history of mental illness and drug abuse, and on a finding that the mother and her young baby, E.P., “had tested positive for methamphetamine and marijuana. “
The county Department of Social Services (DSS) told the court that the children’s current treating physician recommended that they should be vaccinated, and set a schedule for catching them up. The father objected based on a medical exemption issued by a Dr. Jonnie Ham on March 11, 2018.
It’s worth providing these facts in detail:
Ham wrote that the children have “a medical reason not to vaccinate,” but did not state what that medical reason was.
At a hearing to determine whether the children should be vaccinated, Ham testified he saw the children once in March 2018 for 45 to 60 minutes. He said he is not a pediatrician and did not have medical records from the children’s other doctors. His examination was “very brief.” He checked the children’s temperatures and their eyes and had them move their arms. Ham went on to testify, “Most of what I do in my evaluations is based on history.” He said he relies on what the parents tell him about the medical history. His medical records do not include the results of his physical examination. Ham said, “[T]hose physical findings I don’t consider to be relevant.”
Ham was asked what was the medical condition that supported the exemptions but did not describe that condition. He said, “The law does not require that the child have a medical condition. . . . [It] allows us to consider both the individual’s medical history as well as family history.”
In response to a question about the children’s medical condition that supported an exemption, Ham responded, “I did not see a medical condition directly with either child.” The parents said members of the family have had “allergies,” “asthma,” “autoimmune disease,” and “mental disorders, including autism.” One family member had “a negative vaccine reaction.”
… In 2018, Ham issued 350 exemptions. For two children, he charges a $290 fee for an exemption examination.
Basically, this a doctor who is not the children’s treating physician, not a pediatrician, and a serial issuer of medical exemptions. He gave them a cursory physical examination he explicitly did not use in his decision, and who apparently drew on things that are clearly not a medical contraindication.
In fact, several of these – like general allergies in a family member – are in the CDC’s Table 4-2, Conditions Incorrectly Perceived as Contraindications or Precautions to Vaccination. These are not reasons not to vaccinate. He is also, as pointed out later in the decision, anti-vaccine.
The Juvenile Court declared his exemptions “Null and Void”, and the court of appeals – correctly, in my view – pointed out that the court found Dr. Ham’s testimony not credible, by implication.
As a preliminary matter, the Court addressed DSS’s claim that the decision is “moot” since the children have already been vaccinated. Courts in the United States do not rule on abstract questions, and DSS was claiming that there is no longer a relevant, practical question. But the court rejected that argument, pointing out that the children will likely be facing future vaccines.
The main legal argument by the father drew on California SB276. Traditionally, the juvenile court has broad authority to order medical treatment for a child in the state’s care. The father argued that California SB276 overturned that because the statute “provides that a state public health officer (SPHO) or a doctor designated by an SPHO “may revoke the medical exemption.” (Health & Saf. Code, § 120372, subd. (d)(3)(C).) He argued this means the juvenile court does not have the authority to revoke an exemption.
The court rejected that. I am deviating from the decision’s order, to make following the argument easier, but covering all the points.
- As a matter of statutory interpretation, the father’s interpretation is unpersuasive because it’s not in line with the statute’s purpose. The statute’s purpose focused on “the public health consequences of doctors issuing improper exemptions.” To protect the community from that, it added new actors who can now revoke an improper medical exemption.
But it did not prevent courts from rejecting exemptions that were “fraudulent or without foundation.” The court points out that any other conclusion would both undermine the court’s authority without a direct basis in the law and endanger the children’s health, by leaving them at risk of disease.
- In this particular case, the court of appeals agreed with the juvenile court in rejecting Dr. Ham’s exemptions and testimony. The court pointed out that the letters don’t meet the requirement of the statute, which requires that the letter specify “the specific nature . . . of the medical condition.” (Health & Saf. Code, § 120370, subd. (a)(1).) I would point out that for a time, the California Department of Public Health had regulations that did not require spelling out the condition, and many doctors issued vague letters. However, those regulations were in direct tension with the clear language of the statute, and I suspect that if ever tested in court, would be struck down. The Department had since changed its regulations to align with the statute, requiring spelling out the condition.
- Further, the court pointed out that Dr. Ham was not a pediatrician, did not treat the children, and his 2018 letters did not describe their “current” medical condition (probably in 2019, at the point of decision). The juvenile court also found that the exemption was invalid, based only on the family history provided by the parents and without any medical evaluation of the minors. The court found that that’s patently wrong. Ham did not look at any medical records for the children’s history and expressed anti-vaccine views.
- Finally, the court pointed out that the children’s current treating doctors support vaccinating and see no medical barrier, so even if in 2018 the exemption had a basis (which it did not), it does not determine the children’s current status.
I think the court’s interpretation of California SB276 was clearly the correct one. The law was not passed to prevent other courts – be it juvenile court or family courts – from rejecting medical exemptions when examining whether it’s in the child’s best interest to be vaccinated, and using it for that purpose is a misuse.
I also agree with the court’s rejection of Dr. Ham’s exemption. The one thing missing in the discussion, I think, is that under the circumstances, it’s appropriate for the medical board to take a close look at Dr. Ham’s exemptions, if they have not yet, and this case alone is probably grounds to take action against him.
Apparently, he had other actions, but not over exemptions. He probably deserves discipline for his role here.