SB 277 Preliminary Injunction Reason – Health Department Leader Wants to Bite Doctors That Write Vaccine Medical Exemptions…

Opinion by Consumer Advocate Tim Bolen  

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SB 277 Author Senator Richard Pan MD MPH with Santa Barbara Health Department Leader Charity Dean MD MPH at California Medical Association (CMA) annual meeting. Question – How CLOSE ARE these two?

The SB 277 lawsuit document titled First Amended Complaint is a VERY thorough, detailed, layout of the problems inflicted on California’s family population by California Senator Richard Pan’s Senate Bill #277 (SB277).

In that document is a VERY important section talking about the activities of one Charity Dean MD, MPH of the Santa Barbara County Health Department, shown, with Pan, in the photo on the right.

Apparently, she wants to bite some doctors, so-to-speak.

But, the huge working group supporting the SB 277 lawsuit was closely watching Pan and Dean’s activities and started gathering evidence – the results of which ended up sticking Dean’s activities in the lawsuit itself.

I’ll show all that to you in a minute.  But first let me show you what one of the California warrior teams have come up with about this subject.

We’ll start, today, with what Christina Hildebrand of “A Voice For Choice” opines:

“It seems that with the help of Senator Pan and a few others, such as the California Medical Association, the California Medical Board, Dorit Reiss, Senator Monning and some California lobbyists, Charity Dean MD, MPH has taken it upon herself to become the authority on Vaccine Medical Exemptions in the state of California.

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Screenshot from Charity Dean’s FaceBook page.

She has decided that a witch hunt for the few doctors who are writing legitimate medical exemptions is the way to go.  Why you ask?  I can only guess that Power, Money and sleazy Politics have gotten to her head.  I am sure she sees herself as the next Senator Pan – the good doctor PANdering the CMA’s agenda in the legislature for a pretty penny.  Because as she says about the CMA – WE (including herself) “are a FORCE to be reckoned with in Sacramento”

The Applicable Language in the First Amended Complaint…

Both the California Legislature, AND the Governor, addressed the issue of Medical Exemptions surrounding the implementation of SB 277 for vaccines, recognizing the inherent dangers of vaccines in general, and to specific populations segments.  They were VERY CLEAR on the policies they wanted followed.  But, apparently, Senator Pan and his cronies have OTHER ideas.

But I know several nice people who pretty much said “Not on MY watch…” and contacted the SB 277 legal teams.  Good job…
The lawsuit words below explain VERY CLEARLY what Santa Barbara County Health Department’s Charity Dean MD MPH was up to.

The legal action seeks to get an Injunction stopping this, along with the other activities.

The Complaint Language…

(68)  In enacting SB 277, the Legislature, appreciating that a rigid universal vaccination mandate could result in vaccine-induced injury and death to some children, amended section 120370(a) to provide physicians the discretion and ability to write medical exemptions beyond narrow CDC guidelines. As amended, section 120370(a) provides:

if the parent or guardian files…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…to the extent indicated by the physician’s statement.”

(69)  Section 120370(b) provides for the “temporary exclusion” of a child with a medical exemption in the event of exposure to an infection for which vaccination is available.

(70)  In his signing message for SB 277, Governor Brown acknowledged the broadening of the medical exemption, stating that “[t]he Legislature, after considerable debate, specifically amended SB 277, to exempt a child from immunizations whenever the child’s physician concludes that there are ‘circumstances, including, but not limited to, family medical history, for which the physician does not recommend immunization….’ Thus, SB 277, while requiring children be vaccinated, explicitly provides an exception when a physician believes that circumstances — in the judgment and sound discretion of the physician — so warrant.” (Emphasis added).

(71)  Section 120370 thus vests physicians with full professional judgment and discretion to write medical exemptions in the best interests of their patients. In practice, however, due to the unlawful conduct of Defendant CDPH and local health departments acting in concert with the California State Medical Board, physicians face professional discipline, loss of licensure, and even liability for exercising their professional judgment and discretion regarding vaccination and medical exemptions.

(72)  Plaintiffs are informed and believe that CDPH and local health departments across the State are taking action to prevent physicians from exercising their professional judgment and acting in the best interests of their patients in deciding whether to write medical exemptions. Indeed, CDPH and local health departments are taking active steps to mislead physicians about the requirements of section 120370 and to intimidate physicians into denying medical exemptions for fear of liability, professional discipline or loss of licensure, effectively rendering section 120370, as amended, ineffectual.

(73)  By way of example, a leaked letter sent on June 6, 2016 by Dr. Charity Dean of Defendant The Santa Barbara Department of Public Health (“SBDPH”) to all Santa Barbara school superintendents, principals, child care center directors and school nurses, announced its new Medical Exemption Pilot Program and directed all Santa Barbara area schools to submit all medical exemptions to SBDPH to enable “a comprehensive review of each exemption by the Health Officer and Immunization Program Staff.” The stated purpose of collecting medical exemptions was “to collect and analyze data, identify any Medical Exemptions not meeting SB 277 criteria, and provide helpful information to physicians issuing such exemptions.” The letter went on to state that SBDPH would contact schools if it determined that a particular Medical Exemption did not meet SB 277 “criteria.”

(74) But neither SBDPH, nor any other health department has authority to review, evaluate or override medical exemptions. Section 120370 vests medical exemptions in the sole discretion of a child’s physician and no “criteria” exist whereby SBDPH or any other health department can evaluate the validity of a medical exemption. Accordingly, SBDPH’s compilation, review and evaluation of medical exemptions constitute ultra vires activity by a public entity using public funds to conduct such activity.

(75)  On June 15, 2016, Gregory Glaser, Esq. sent a letter to SBDPH, notifying SBDPH that its letter violated both State and federal health privacy laws and demanded that SBDPH withdraw its Medical Exemption Pilot Program. In response, on June 24, 2016, SBDPH issued a new letter to school personnel, directing schools to redact student identifying information from Medical Exemptions prior to submitting them to SBDPH. Backpedaling from its original position, SBDPH claimed that its Medical Exemption Pilot Program would provide “procedural support to schools…, not ‘overturn’ medical exemptions issued by a licensed physician” (underlining in original). The letter went on to state that “[s]ince the State of California has not provided a standardized form for medical exemptions…[SBDPH] will provide procedural support to school officials or issuing physicians, concerning medical exemption documentation” (underlining in original, bold emphasis added).

(76)  Notwithstanding SBDPH’s attempt to make its ultra vires activity appear benign once its letter was leaked on the Internet, it is indisputable that its actions are undertaken not for legitimate health and safety purposes but to identify and track physicians writing medical exemptions. This is confirmed unequivocally in a blog post published on July 10, 2016 by Dorit Rubenstein Reiss, a mandatory vaccination advocate and professor at the University of California Hastings College of the Law who testified in favor of SB 277 before the Legislature.

According to Professor Reiss, the goal of the Santa Barbara project is “to gather data on the reasons for medical exemptions, and to prevent abuses of the medical exemption provision.” “We know there are abuses of medical exemptions….,” Professor Reiss writes, “[t]he pilot project can help collect data on medical exemptions generally and on how many unjustified medical exemptions are written – and possibly, if there are specific doctors who write more than others.” See, Dorit Rubenstein Reiss, California SB 277 Lawsuit Analysis – Anything There?, in Skeptical Raptor’s Blog (July 10, 2016), http://www.skepticalraptor.com/skepticalraptorblog.php/california-sb277-lawsuit-analysis-anything/.

This bold and unapologetic admission by Professor Reiss is evidence of a direct and intentional violation of Plaintiffs’ rights, complete disregard for the sanctity of the doctor-patient relationship, and abandonment of any concern for the health and wellbeing of medically fragile children who are placed at grave risk of vaccine injury by SBDPH’s attempts to intimidate doctors against writing medical exemptions.

(77)  Plaintiffs are informed and believe that SBDPH’s medical exemption pilot program is not unique. At the direction of CDPH and in collusion with the State Medical Board, other local health departments, including The Sacramento County Health and Human Services Department and The Marin County Health and Human Services Department, are also engaged in programs to collect and scrutinize medical exemptions for the express purpose of tracking physicians who write medical exemptions.

(78)  Indeed, local health departments and the State Medical Board are engaged in an organized attempt to de facto eliminate the medical exemption and write it out of California law, as evidenced by a teleconference invite sent by Leah Northrop, MPA, MAIS, Executive Administrator of the California Conference of Local Health Officers, CDPH. Ms. Northrop’s teleconference invite, made available to Plaintiffs in response to a Public Records Act request, states:

Please join us for a call with Dr. Charity Dean and Jennifer Simoes, from the California Medical Board, to discuss the following:

SB 277 and suspicious medical exemptions for immunizations issued by California physicians.

The California Medical Board process if a licensed physician is reported for issuing suspicious medical exemptions.

Informal Q&A period with the California Medical Board Executive Staff, including:

Kimberly Kirchmeyer, Executive Director,

Jennifer Simoes, Chief of Legislation, and

Christina Delp, Chief of Enforcement.

This teleconference has been requested by Dr. Charity Dean, Health Officer in Santa Barbara County. (Italics in original, bold emphasis added).

(79)  Ms. Northrop’s teleconference invite shows collusion among Defendants to undermine the Legislature’s broadening of medical exemptions. As public agencies acting by and through their respective public officials, Defendants owe a duty to California citizens to follow State law in their official actions. Rather than follow the law, however, Defendants are working actively to undermine it.

More from Christina Hildebrand…

“There were hints dropped by Senator Pan before Charity Dean took the task upon herself that Governor Brown’s SB277 signing statement which explicitly stated that medical exemptions are at “the judgement and sound discretion of cma de2the physician” would be undermined.  On his Facebook page on January 26th, 2016, Senator Pan quoted the SacBee editorial board (who are a proponent of SB277 and Senator Pan) that “state health officials cannot let their guard down. California already has problems enough with Dr. Feelgoods eager to make a quick buck from the fears of misinformed or misguided patients. As the new law gears up, the state medical board should crack down on any physician who appears to be offering bogus medical exemptions or setting up shop as a professional enabler for vaccine resisters.”

Then came the seemingly innocent request from Charity Dean to review SB277 vaccination medical exemptions in Santa Barbara.  But that had a stench to it that emanated throughout the state.  Greg Glaser, a CA Attorney, wrote a detailed brief indicating how the request went against FERPA, to which Charity Dean responded by updating the request still asking for all Medical Exemptions but with the child’s name and other personal information redacted. 

I am pretty sure she was laughing hard when she wrote that second letter, because she still got what she really wanted – physician names.  She may have been laughing then, but she has since been named in a lawsuit regarding this action. 

And also since then, A Voice for Choice Advocacy has conducted a Public Records Act Request of all 60 county Health Departments which has revealed some very interesting information.  At least two other counties are also towing the line – Sacramento and Marin – not surprisingly given that Sacramento is Senator Pan’s district and Marin is where Rhett Krawitt, the poster boy for the pro-SB277 side, lives. 

And even more telling is a memo regarding a teleconference requested by Charity Dean May 13, 2016 to discuss “suspicious medical exemptions” and the process if a licensed physician is reported for issuing suspicious medical exemptions.

And then there is also Dorit Reiss’s evaluation of the program, which she expressed to a local reporter, where she stated “the goal of Charity Dean’s medical exemption project is to gather data on the reasons for medical exemptions, and to prevent abuses of the medical exemption provision….The pilot project can help collect data on medical exemptions generally and on how many unjustified medical exemptions are written – and possibly, if there are specific doctors who write more than others.”

All this gives insight into the true objective of the Medical Exemption Pilot Program – to generate a list of physicians who are giving Medical Exemptions so that Senator Pan and the medical board can crack down on them. 

If they were to do this, what they would find is that there are only a small number of private practice physicians who have written the majority of the Medical Exemptions on file.  They may infer from this that it is these physicians that have “set up shop” for the benefit of vaccine resistors.  But this is far from the truth.  They are small in number because very few physicians have the ability to give Medical Exemptions based on family history or prior severe vaccine reactions which are not on the list of CDC contraindications for vaccines. 

Large corporations, such as Kaiser Permanente or Universities, have extremely strict prescribed guidelines for writing Medical Exemptions, and so, for example, would not consider a sibling of a child who had a severe vaccine reaction a great enough reason for a medical exemption, even though this is stated as admissible by SB 277. 

Most practices that take health insurance also are unwilling to write Medical Exemptions because of the pressure from health insurance companies to have their entire patient population fully vaccinated.  Health insurance companies threaten they will remove coverage from these practices if they fall under a certain vaccination rate – something these practices cannot afford to do as they risk losing their patients. 

This leaves a small number of private practice physicians who have the ability to fully evaluate the patient and use their knowledge and judgement to evaluate whether a Medical Exemption is appropriate.  Therefore it is only expected that the Medical Exemptions submitted to schools in each area would be from a select few private practice physicians. 

This is also further exacerbated because parents who know that their children are medically more susceptible to vaccine injury often see naturopathic doctors, chiropractors or other alternative health care providers as their primary health care provider.  This means that these parents do not have an MD or DO that they see on a regular basis and so have sought out private practice doctors specifically to evaluate their children for a Medical Exemption. 

This Pilot Project further disenfranchises parents and physicians with legitimate concerns about vaccines, which have been deemed “unavoidably unsafe” by the Supreme Court.

With no real impetus for the auditing of Medical Exemption records, Charity Dean’s Medical Exemption Pilot Program appears to be a strategy to intimidate and target the small number of physicians and their patients who file legitimate Medical Exemptions, by capturing physician identities.  The objective of the Pilot Program becomes even more questionable given the evident ties announced on Charity Dean’s Facebook page, between her (the instigator of the program) and Dorit Reiss (a two time testifier during SB277 and strong proponent of Vaccinate California) and Senator Pan (the author of SB 277) and the California Medical Association (the sponsor of SB 277). 

Seems clear as day what Charity Dean’s agenda is and who she is working for, other than her claimed job at the Santa Barbara County Public Health Department.

In short, the Medical Exemption Pilot Project is wrong, it is unnecessary, and in its overreach it violates the rights of all families and physicians who use the only legal way in California to avoid vaccine injury in order to attend public or private school.  Hopefully, now Charity Dean has been name in a lawsuit she will come down off her high horse and stop ego-tripping long enough to stop messing with the livelihood of California physicians.

Christina Hildebrand (christina@avoiceforchoice.org)
President/Founder
A Voice for Choice Advocacy, Inc.

 An important Point….

There are a lot of activists working quietly, and not so quietly, now on the SB 277 problem, some behind the scenes, some right up front.  Some in California, some worldwide.

I think we need to have a meeting on the courthouse steps in San Diego on the day of the Preliminary Injunction Hearing.  So far, that hearing is scheduled for August 12th, 2016, although there is ALWAYS the possibility for a change in scheduling.  So, let’s start talking about how to do that.  Right now, though we are just starting to gather information – as in – which courthouse (old or new), is Courtroom 13A in?

So, stay tuned…

Opinion by Consumer Advocate Tim Bolen 

 

 

6 thoughts on “SB 277 Preliminary Injunction Reason – Health Department Leader Wants to Bite Doctors That Write Vaccine Medical Exemptions…”

  1. Thank you Christina Hildebrand and Greg Glaser for your quick legal response after discovering the egregious FERPA violations by these California Public Health Departments.

    Here are some additional FERPA complaints: http://familypolicy.ed.gov/complaint-form

    1) Complaint – There was no transparency nor “a full set of public disclosures of the existence and uses of the information included in the data system” as it pertains to the release of student’s actual medical exemptions (with specific doctors’ names and specific medical conditions) to an outside agency for data collection.
    2) Complaint – State Education Agencies (SEAs) and Local Education Agencies (LEA’s, i.e. school districts) can disclose student data ONLY to audit and evaluate the effectiveness of publicly-funded education programs, BUT it must be with a prior written agreement, used only for legitimate purposes and only when absolutely necessary. As schools have no legal authority, per California Law, to question or deny a medical exemption, there is no legitimate educational reporting reason to give the actual medical exemptions to an outside agency for audit. Public Health Depts already receive from schools an annual report of de-identified and FERPA compliant medical exemption information for data processing. http://www2.ed.gov/policy/gen/guid/fpco/pdf/sealea_overview.pdf
    3) Complaint – Entities releasing data (i.e. schools) are responsible for de-identification strategies that minimize the risk of disclosing PII, which includes indirect identifiers like MEDICAL INFORMATION. Simple removal of direct identifiers from the data to be released DOES NOT constitute adequate de-identification: “It is important to note that PII may include not only direct identifiers, such as names, student IDs or social security numbers, but also any other sensitive and non-sensitive information that, alone or combined with other information that is linked or linkable to a specific individual, would allow identification. Therefore, simple removal of direct identifiers from the data to be released DOES NOT constitute adequate de-identification. Properly performed de-identification involves removing or obscuring all identifiable information until all data that can lead to individual identification have been expunged or masked.” http://ptac.ed.gov/sites/default/files/data_deidentification_terms.pdf
    4) Complaint – Public Health Departments cannot REQUIRE an educational institution to provide them with de-identified medical exemptions. Per 34 CFR 99.31(d), an educational institution is permitted but NOT REQUIRED to disclose education records without consent. https://www.law.cornell.edu/cfr/text/34/99.31
    5) Complaint – No Public Health Departments nor any other agencies have legal authority, per California Law, to gather personal medical information from a student file for data collection, as it does not pertain to an audit of a legitimate educational program. Furthermore, discussing a medical exemption with the school, a medical provider or passing that information on to another entity, such as a medical board, breaches general Privacy Laws, as well the expressed intent of Title 34 CFR §§ 99.31(a)(6) & 99.31(a)(3) and 99.35. https://www.law.cornell.edu/cfr/text/34/99.31

    NCES guidelines: “A privacy and data protection program for student education records must include an array of rules and procedures for protecting PII held in the record system. It also must include a full set of public disclosures of the existence and uses of the information included in the data system, a description of all parents’ or eligible students’ rights to review and appeal the contents of an individual education record and of their rights and the procedures to appeal a violation.” http://nces.ed.gov/pubs2011/2011602.pdf

    NCES guidelines: Personal Information Identifiers also consist of INDIRECT IDENTIFIERS, such as medical information. “The FERPA definition refers to “other indirect identifiers such as the student’s date of birth, place of birth, and mother’s maiden name” and to “other information that, alone or in combination, is linked or linkable to a specific student…The 2010 NIST guide extends the list of examples of indirect identifiers to include place of birth, race, religion, weight, activities, employment information, MEDICAL INFORMATION, education information, and financial information.” http://nces.ed.gov/pubs2011/2011602.pdf

  2. Can we group Medical and Religious into one exemption: Conscientious Objector Exemption where we just believe its wrong to kill, maim and destroy peoples lives. My child doesn’t qualify for a religious or medical exemption… I’m just scared to death to get her vaccinated… what about us?

  3. I have two children, one is 4 years old the other one is 6 years old going into TK and 1st grade, respectively, this coming school year (2016-2017). I filed PBEs (authorized by their doctor) for both children in June 2015. I did not file PBEs in 2016 because the schools did not request them again.

    My question is: will my PBEs, which were filed California before 2016, remain valid for the 2016-2017 school year and in later years? Upcoming school year begins on Agust 16, 2016.

    I am truly looking for a way around SB 277 and any advise or information will be greatly appreciated it.

    Thank you!
    Martha

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