Vaccine medical exemptions – California legislature aims to curb abuse

On 25 March 2019, Dr. Richard Pan, a California Senator, amended a bill he previously submitted to tighten the process of granting vaccine medical exemptions in California. The bill is a response to an increase in medical exemptions due to the willingness of some physicians to sell unjustified vaccine medical exemptions to misguided anti-vaccine parents. If it passes, it can help curb abuses.

vaccine medical exemptions

Background of California vaccine medical exemptions

On 30 June 2015, SB277 – a bill to remove California’s personal belief exemption to school immunization requirements – became law. The bill limited exemptions (pdf) from school immunization requirements to some children who have Individual Education Programs (IEPs) or have vaccine medical exemptions.

For practical reasons – not to overburden the school system, and to give most parents a transition period – the law was to be implemented gradually, as children reach a “checkpoint” – entering the system, entering kindergarten, or entering seventh grade.

The medical exemption was only slightly altered from before the law. The language of the medical exemption provision is:

120370.
If the parent or guardian files with the governing authority a written statement by a licensed physician to the effect that the physical condition of the child is such, or medical circumstances relating to the child are such, that immunization is not considered safe, indicating the specific nature and probable duration of the medical condition or circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization, that child shall be exempt from the requirements of Chapter 1 (commencing with Section 120325, but excluding Section 120380) and Sections 120400, 120405, 120410, and 120415 to the extent indicated by the physician’s statement.

In essence, this language left medical exemptions to the physician’s discretion, limiting it to licensed physicians – MDs or DOs, but it did not provide oversight. This was not added by SB277 – it reflected the pre-existing law. The only change was to add the language “including, but not limited to, family medical history,” which at least arguably changed nothing – where relevant, family medical history should already have been considered. Of course, anti-vaccine activists interpreted that language as justifying exemptions based on family medical history, even in cases where the CDC’s contraindication page expressly said that is not a valid contraindication

The law’s vaccine medical exemptions provision required doctors to state the specific condition justifying the exemption. The amended Department of Health regulation after the act reiterated that requirement.

The problem of vaccine medical exemptions was documented in multiple articles:

There is evidence that a cottage industry developed in California for selling vaccine medical exemptions. Doctors found a way to make money off anti-vaccine parents, misled into being more afraid of protecting their children from the vaccine rather than from the diseases.

In a recent expose in San Diego, one doctor – whose practice was not related to children before the law – was responsible for a full third of vaccine medical exemptions. 

While some rise in medical exemptions was expected after the law, as parents with justified medical contraindication to vaccines who previously used the very easy personal belief exemption now had to get an actual medical exemption, the level of increase – and the pattern, with medical exemptions concentrated in specific schools – did not fit a story under which this was the only cause

vaccine medical exemptions
State Sen. Richard Pan, center, discusses the proposed bill to tighten vaccine medical exemptions.. Credit: Rich Pedroncelli / AP

In the Commentary attached to the article, Dr. Richard Pan and I suggested that one way to curb the abuse is to have the state oversee the medical exemption process, as is the case, for example, in West Virginia and Mississippi.

While the medical board can take action against doctors writing exemption – and is in the process of doing so in multiple cases – it faces an evidentiary obstacle: the parents benefiting from the exemption have no incentive to cooperate, and the information is harder to obtain without such cooperation.

In a powerful editorial in the Sacramento Bee on 24 March 2019, parent-advocate Leah Russin from Vaccinate California made the case for the change: 

“We believe that medical exemptions should only be given to those who truly need them: the infant on the arm of a new mother in San Francisco; the young boy in Santa Cruz who was born needing surgery and must delay his vaccines due to his illnesses; the middle school student recovering from cancer in Los Angeles who wants to get back to school and visit with friends; or the twin girls in San Diego who are among the 1 percent for whom some vaccines don’t work.
All these children, every newborn and many adults rely on herd immunity for their survival. Every baseless and unjustifiable medical exemption jeopardizes their health and safety.

Vaccines are one of the most effective public health tools ever invented, but community immunity is fragile. The 2018 California measles outbreak – which began with an unvaccinated teen and spread to other unvaccinated youth, including two with suspect medical exemptions – is a grave reminder that vaccine-preventable illnesses remain a present threat to public health.

It’s once again time for parents, physicians, health officials and concerned Californians to speak up about the abuse of medical exemptions. It’s also time for the California State Legislature to act to end these abuses.”

On 25 March, the text of the bill appeared, and on 26 March 2019, Dr. Richard Pan and others held a press conference in which a strong case for the need for the bill was made. In the press conference, statements were made by Dr. Pan, Assemblywoman Lorena Gonzales who also introduced the original SB277 to the assembly in 2015, several medical professionals, several parents of immune compromised children, an immune-compromised man, and parent-advocate Leah Russin. 

vaccine medical exemptions
Anti-vaccine protestors. Credit: Pauline Bartolone/Capital Public Radio

The Bill

The new bill, dubbed SB276, does a few things:

  1. It requires the California Department of Public Health to create a standardized medical exemption form.
  2. It requires that the physician confirms in writing a personal examination of the child. One of the abuses mentioned in the current process is that some physicians provided medical exemptions after online or phone consultations, without ever seeing the child.
  3. It provides for review of exemptions by a state public health officer.
    The state public health officer will only approve a medical exemption “upon a determination that the request provides sufficient medical evidence that the immunization is contraindicated by guidelines of the federal Centers of Disease Control and Prevention (CDC).”
  4. It creates a state database of exemptions. Dr. Pan explained in the press conference that this database would assist, among other things, in tracking down exempt children during outbreaks. He mentioned that during a recent measles outbreak in California, verifying the immunization status of unvaccinated, affected children ran into parental opposition.
  5. It provides limited grandfathering to people with current exemptions. The exemptions are not automatically invalidated. However, the parents have to submit the exemption to the state database created. Further, the bill clarifies that “If the State Public Health Officer or a local public health officer determines that a medical exemption submitted to the department is fraudulent or inconsistent with applicable CDC guidelines, the State Public Health Officer or local public health officer may revoke the medical exemption.” “Fraudulent” is a fairly high bar; it is hard to prove. However, inconsistent with applicable CDC guidelines is a standard that may well invalidate many current exemptions. The officer has discretion here, and especially at first, resource limitations may prevent extensive retroactive review of existing exemptions (since a review of new exemptions is mandatory, and will likely take priority), but parents paying for unjustified exemptions cannot assume that, if the bill passes, their exemptions will remain valid.

Naturally, anti-vaccine activists are unhappy with the California vaccine medical exemptions bill and mobilized against it. However, most news coverage correctly identified it as an effort to close what turned out to be an open invitation to abuse. 

Update 4 April 2019

If you want to support this bill, please contact these California state senators:

Dorit Rubinstein Reiss
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 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.