SB 277 First Amended Complaint “General Allegations…”

Examining the Details…  

SB277 Court Docs

Opinion by Consumer Advocate Tim Bolen

I make no secret of the fact that I VERY MUCH  like the writing and construction of this lawsuit, both as a legal tool, and as a clear concise, explanation of the issues that we, the people of Planet Earth, face in regards to mandatory vaccine programs.

I know there is a lot of reading that needs to be done to comprehend the magnitude of the problem we face, but..

It’s all right here.  Just read it a piece at a time.

The “General Allegations”…

I am going to break this section of the First Amended Complaint in to sub-sections to make it easier to comprehend where the legal arguments are going.  Yes, there is a lot here to read, but it all makes sense, especially if you break it up into those sections.  So, let’s do that…

General:

(41)  Amid media-created hype and irrational panic over the Disneyland measles outbreak, SB 277 was rushed through the Legislature and signed into law in the course of four short months, bypassing key legislative committees and precluding careful and thoughtful analysis of whether SB 277 was warranted or whether it could coexist with the robust legal framework that exists to protect California’s schoolchildren from marginalization and discrimination.

(42)  Without any factual basis, children with PBEs were saddled with all of the blame for the outbreak, resulting in prejudice and intolerance against them that was so pervasive and so severe as to result in legislation to exile them from schools and daycares. Thus, for the first time in its history, California created a new category of “second-class citizens,” who would forever be barred from its schools in contravention of the United States and California Constitutions, numerous state and federal laws, and decades of California and federal jurisprudence that forbid SB 277’s draconian result.

(43)  California’s children have a fundamental right to attend school and participate in society, free from discrimination and marginalization. Children with disabilities have the right to attend school with their non-disabled peers and not be relegated to learning in isolation. Parents have the right to direct the upbringing of their children in accordance with their deeply-held convictions and their religious beliefs. SB 277 totally and fatally conflicts with these and other fundamental rights and liberties guaranteed to Plaintiffs and their children and to thousands of families who are suffering the aftermath of SB 277. Plaintiffs, therefore, seek a declaration that SB 277 is unconstitutional under both the United States and California Constitutions and a preliminary and permanent injunction preventing Defendants from enforcing SB 277.

History of California’s Vaccine Mandates and PBEs

(44)  California has a long-standing history of respecting bodily autonomy and personal choice regarding vaccination. Indeed, California’s philosophical or personal belief exemption or PBE is as old as its first polio vaccine mandate. In 1961, the California legislature enacted a mandate for a single dose of polio vaccination for school attendance, subject to a PBE – a simple statement that vaccination is “contrary to one’s beliefs.” (AB 1940, DeLotto).

(45)  The school vaccination schedule has expanded dramatically in the 55 years since 1961. Children are now required to receive between 30 and 38 doses of vaccinations for 10 different diseases before they can enroll in any elementary or secondary public or private school or any nursery school or daycare. The State recommends, but does not mandate, an additional 33 to 34 doses of vaccines for another seven diseases before age eighteen. Importantly, PBEs have remained available with each expansion of California’s school vaccination schedule to add new vaccines and additional doses of existing vaccines:

In 1977, the Legislature added single doses of diphtheria, pertussis, tetanus, and measles vaccines to the school vaccination requirements, subject to a PBE. (SB 942, Rains).

In 1979, single doses of mumps and rubella vaccines were added to the list of required vaccines, subject to a PBE. (AB 805, Mangers).

In 1992, haemophilus influenzae type b was added to the list of required vaccines, subject to a PBE. (AB 2798, Floyd and AB 2294, Alpert).

In 1995 and 1997, vaccination for hepatitis B was added to the list of required vaccines, subject to a PBE. (AB 1194, Takasugi and AB 381, Takasugi).

In 1999, the Legislature voted to add hepatitis A to the list, but Governor Davis vetoed the bill. (AB 1594, Florez). Accordingly, hepatitis A vaccination is not required for school attendance.

In 1999, vaccination for varicella (chicken pox) was added to the list of vaccines required for school attendance, subject to a PBE. (SB 741, Alpert).

In 2007, the Legislature voted to add vaccination for pneumococcus to the list, but the bill was vetoed by Governor Schwarzenegger, with a veto message that a mandate was not needed in light of significant voluntary compliance. (SB 533, Yee). Accordingly, pneumococcus vaccination is not required for school attendance in California.

In 2010, a tetanus, diphtheria and pertussis (Tdap) booster was added as a requirement for advancement to the seventh grade. (AB 354, Arambula).

(46) The expansion of California’s vaccination schedule from the addition of new vaccines and additional doses for existing vaccines results in typical kindergarten entrants receiving approximately five doses of polio vaccine, four doses of vaccines for diphtheria, tetanus, and pertussis, three doses of hepatitis B and haemophilus influenzae type b vaccines, two doses of vaccines for measles, mumps and rubella, and 1 dose of varicella (chickenpox) vaccine. That schedule is a far cry from the number of vaccines their parents received just one generation ago. Yet, despite the ever-expanding vaccination schedule and availability of PBEs, PBE use in California has never exceeded 3.2 percent.

(47)  Moreover, the overwhelming majority of the children with PBEs are partially vaccinated, with hepatitis B being the vaccine parents most frequently decline. According to the Centers for Disease Control and Prevention (“CDC”) and the National Institutes of Health (“NIH”), less than one percent of children are completely vaccine-free.

Enactment of AB 2109 To Burden PBE Rights

(48)  In addition to PBEs, California law has historically allowed for medical exemptions, as well as “conditional” entry into school of children who are not fully vaccinated, but intend to become fully vaccinated. Schools are directed to follow up routinely with conditional entrants to ensure that they become up-to-date with vaccinations. Prior to the enactment of SB 277, however, no report existed to determine whether systematic follow-up occurred in all districts and, if so, whether it resulted in full vaccination of conditional entrants. Prior to SB 277, each year, approximately 6.5 percent of children enter kindergarten “conditionally.”

(49)  The California Department of Public Health, Immunization Branch (CDPH) issues annual reports of vaccination rates for daycare, kindergarten and the seventh grade. The reports show rates of full vaccination, conditional entry, medical exemption and PBEs.

(50)  Prior to the enactment of SB 277, medical exemptions required a physician’s statement indicating that vaccination is unsafe for a particular child and providing details regarding the condition that “contraindicates” vaccination. The CDC, the agency that sets vaccine policy in the U.S., defines “contraindications” to vaccination to include only certain enumerated severe and life-threatening conditions, such as severe allergic reactions (anaphylaxis), severe immunodeficiency, or encephalitis (including coma or severe seizures) that cannot be attributed to any other cause.

(51)  The CDC’s vaccine “contraindication” guidelines preclude consideration of other factors and conditions, such as history of adverse vaccine reactions, neurological conditions, petit mal or febrile seizures, autoimmune diseases, or family medical history as reasons to forego vaccination. Indeed, the CDC publishes a list of “conditions commonly misperceived as contraindications to vaccination” and cautions doctors against not vaccinating a child based on these conditions.

(52)  The CDC’s guidelines severely limit a doctor’s ability to grant medical vaccine exemptions, as reflected in California’s historically low medical exemption rates of 0.16 percent in 2011, 0.17 percent in 2012, 0.19 percent in 2013 and 2014 and 0.17 percent in 2015. Accordingly, families with children susceptible to adverse vaccine reactions historically utilized PBEs to exempt their children from vaccines.

(53)  In 2012, following a large pertussis (whooping cough) outbreak which was blamed, without factual basis, on children with PBEs, the Legislature passed AB 2109 (Pan, 2012) to restrict PBEs, even though only 2.39 percent of children used them at the time.

(54)  AB 2109 became effective in the 2014-2015 school year. A parent’s statement of objection to vaccination no longer sufficed for a PBE under AB 2109. Instead, AB 2109 required a parent to obtain a signed statement from a healthcare practitioner attesting that the parent had received information about the benefits and risks of vaccination and the risks of the illnesses for which vaccines are given.

(55)  Pursuant to AB 2109, Health & Safety Code section 120365(e) provided for the possibility of “temporary exclusion” of a child with a PBE from school in the event of exposure to an illness for which vaccination is available.

(56)  In his signing message for AB 2109, Governor Edmund G. Brown, Jr., stated, in pertinent part:

I am signing AB 2109 and am directing the Department of Public Health to oversee this policy so parents are not overly burdened by its implementation. Additionally, I will direct the department to allow for a separate religious exemption on the form. In this way, people whose religious beliefs preclude vaccinations will not be required to seek a health care practitioner’s signature.

(57)  In accordance with Governor Brown’s directive, under AB 2109, Defendant CDPH did not require persons claiming a religious exemption to provide the healthcare provider’s verification that PBEs required.

(58)  In its first year of implementation in the 2014-2015 school year, AB 2109 resulted in a 19 percent reduction in California’s already-low PBE rate of 3.15 percent. Thus, in 2014, the kindergarten PBE rate was 2.54 percent and the medical exemption rate was 0.19 percent. Conditional entrants, on the other hand, made up 6.8 percent of kindergarten enrollees.

SB 277…

(59) Notwithstanding the dramatic reduction in PBEs in the first year of AB 2109’s implementation and CDPH reports that California’s vaccination coverage was “at or near all-time high levels,” on February 19, 2015, SB 277 was introduced to eliminate PBEs as a response to the Disneyland measles outbreak, which was neither caused nor exacerbated by children with PBEs.

(60)  Ignoring the 6.8 percent of children entering schools “conditionally” and undertaking no efforts to systematically follow up with those children to increase their compliance with vaccination requirements, SB 277’s authors focused solely on the 2.54 percent of children with PBEs and advocated their exile from schools.

(61)  Notwithstanding overwhelming public opposition and statements of concern and opposition from various physician, religious, consumer, and civil rights groups, SB 277 was rushed through the legislative process with several legislators expressing misgivings but feeling pressured to vote for the bill, and was signed into law on June 30, 2015.

(62)  SB 277 amended Health & Safety Code sections 120325, 120335, 120370 and 120375, added section 120338, and repealed section 120365.

(63)  SB 277 did not repeal California Code of Regulations Title 17, Section 6051, which stated, in part, “A pupil with a permanent medical exemption or a personal beliefs exemption to immunization shall be admitted unconditionally.”

(64)  Health & Safety Code section 120325 provides that the intent of the legislature in enacting SB 277 is to provide “a means for the eventual achievement of total immunization of appropriate age groups against the following childhood diseases: (1) diphtheria, (2) hepatitis B, (3) haemophilus influenza type b, (4) measles, (6) mumps, (7) poliomyelitis, (8) rubella, (9) tetanus, (10) varicella (chickenpox), and (11) any other disease deemed appropriate by the department….”

(65)  In pertinent part, Health & Safety code section 120335 provides for conditional admission, lists the childhood illnesses for which vaccination is required, and enumerates certain exemptions from the statute, as follows:

section 120335(f) exempts from vaccination requirements “a pupil in a home-based private school or a pupil who is enrolled in an independent study program … and does not receive classroom-based instruction” (the “homeschool exemption”);

section 120335(g) “grandfathers in” children who submitted PBE documentation prior to January 1, 2016 until the next “grade span,” defined as (A) birth to preschool; (B) transitional kindergarten or kindergarten and grades 1 to 6; inclusive, including transitional kindergarten; and (C) grades 7 to 12, inclusive;

section 120335(h) provides that SB 277 “does not prohibit a pupil who qualifies for an individualized education program, pursuant to federal law and Section 56026 of the Education Code, from accessing any special education and related services required by his or her individualized education program” (the “IEP exemption”).

Medical Exemptions And Violations of Section 120370

(66)  SB 277 also amended Health & Safety Code section 120370 to broaden medical exemptions. Prior to SB 277, medical exemptions required physicians to list the conditions which “contraindicated” vaccination for a particular child.

(67) As reflected in California’s historically-low medical exemption rates of less than 0.2 percent, CDC “contraindication” guidelines make it virtually impossible for physicians to write medical exemptions, even if a child experiences a serious adverse reaction to vaccination, such as dangerously high fever, a seizure, or neurological damage. Moreover, under CDC guidelines, even an immediate family member’s severe vaccine injury or vaccine-induced death does not exempt a child from vaccination. Indeed, under CDC guidelines, less than half of one percent of children are eligible for medical exemptions.

(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.

(80)  Importantly, SB 277 bypassed the Appropriations Committees in both the State Senate and Assembly, based on the authors’ claim that it would have no fiscal impact on the State. As such, no public funding has been allocated under SB 277 for any of the pilot programs or physician medical exemption “training” sessions in which Defendant CDPH and local health departments are engaged. Accordingly, Plaintiffs seek a preliminary and permanent injunction prohibiting Defendants CDPH and local health departments from collecting, reviewing, evaluating or scrutinizing medical exemptions, holding physician “trainings” regarding medical exemptions when section 120370 leaves medical exemptions to individual physicians’ professional judgment and discretion, or otherwise attempting to interfere with medical exemptions.

(81)  Following the passage of SB 277, Defendants’ conduct was anticipated by the introduction of Assembly Bill 2638 to amend section 120370 to add: “(c) A licensed physician shall not be subject to discipline or liability for writing a statement as described in subdivision (a).” Plaintiffs are informed and believe that AB 2638 was withdrawn due to overwhelming opposition by the same Defendants who are attempting to undermine section 120370 by tracking and intimidating physicians to prevent them from writing medical exemptions. Defendants’ behavior is unlawful and egregious and, if unchecked, will only confirm their apparent belief that they are entitled to undermine and disregard State laws in favor of their organizational policies.

Violations of Fundamental and Disability Rights…

 

(82)  SB 277 absolutely and fatally conflicts with the Constitutions of the United States and California, as well as numerous State and federal laws.

Violation Of The California Constitution

(83)Public education is a fundamental right fully guaranteed and protected by the California Constitution. Cal. Const. Art. 9 § 5; Serrano v. Priest, 5 Cal.3d 584 (1971); Serrano v. Priest 18 Cal.3d 728 (1976). The California Constitution requires the State to ensure educational opportunities for every child and vests the State with ultimate responsibility for the public elementary and secondary school system. The State has a non-delegable duty to ensure that no student is denied the opportunity to learn. The California Constitution thus places the responsibility for providing education and educational equality to all of California’s children squarely on the shoulders of the State. While the State may elect to delegate some responsibility to school districts, it is ultimately the State’s responsibility to ensure that all California schoolchildren receive a basic education. See Butt v. State of California, 4 Cal.4th 668, 688 (1992).

(84) The State’s duty to provide all children with an equal education is constitutionally mandated and cannot be abdicated, as the State has done in this case. This is especially true since California compels children to attend school and noncompliance with mandatory school attendance laws subjects a child to truancy. Under SB 277, the State continues to compel school attendance while preventing children from attending school, in an illogical and unlawful abandonment of the Constitutional mandate that it educate all children in the State. This conflict alone dooms SB 277.

(85)  Moreover, because SB 277 deprives children of their fundamental right to education and discriminates against children on the basis of wealth, it must withstand strict scrutiny review in order to survive. See Serrano, 5 Cal.3d at 761. Under the strict scrutiny standard applicable here, the State bears the burden of establishing not only that it has a compelling interest which justifies SB 277, but that SB 277 is narrowly tailored to achieve that interest. Id. The State cannot meet its burden.

(86)  No compelling state interest exists to bar children with PBEs from school and daycare. As a threshold matter, children with PBEs are not infectious or contagious. Indeed, their unfortunate mischaracterization as dangerous or contagious has subjected them to severe and pervasive prejudice and bias, resulting in the unjustifiable loss of their rights. Indeed, the disadvantage SB 277 imposes upon children with PBEs is the direct and unfortunate result of intolerance, disapproval or animus against a politically unpopular group seen, from time to time, throughout history.

(87)  SB 277 is not justifiable according to CDPH data and statistics. According to the CDPH, California has high vaccination coverage, with more than 97 percent of children admitted to schools without vaccine exemptions. Indeed, in 55 years of PBE use, PBE rates have never exceeded 3.2 percent and were on the decline for two years prior to SB 277 taking effect. At the time SB 277 was introduced, the kindergarten PBE rate was 2.54 percent for the 2014-2015 school year and PBEs declined again in the 2015-2016 school year to 2.38 percent. That was before SB 277 took effect. The tiny percentage of children with PBEs is not sufficient to impact public health.

(88)  Notably, vaccination rates for illnesses like measles and whooping cough, which were the two illnesses used to advocate barring children with PBEs from school, are even higher than 97 percent, because most children with PBEs are partially vaccinated. In fact, according to the CDC, less than one percent of children are completely vaccine-free. Notwithstanding this fact, SB 277’s proponents represent every PBE as a completely unvaccinated child and portray healthy children with PBEs as contagious or otherwise a threat to the health and wellbeing of other children. This portrayal has unfortunately marginalized innocent children and instilled unwarranted fear in the minds of the public and legislators. When it comes to policymaking, however, fear-based decisions tend to yield laws with unintended negative consequences. SB 277 is such a law.

(89)  SB 277 is not needed to ensure the health and safety of California school children because their health and safety were never in jeopardy. In the longstanding 55-year history of PBE use, there has been no credible evidence of children with PBEs posing a threat to public health. Indeed, children with PBEs did not cause of exacerbate either of the two outbreaks used to take away their rights to attend school.

(90)  Whooping cough outbreaks were used to bar children with PBEs from school. But excluding children with PBEs from school will not prevent or reduce whooping cough outbreaks, because whooping cough is largely a disease of the vaccinated. According to CDPH Pertussis Summary Reports, between 85 and 90 percent of 2014’s 8,000 pediatric whooping cough cases with vaccination records occurred in vaccinated children. In the recent Salinas, California pertussis outbreak, infection occurred in four fully vaccinated students attending a school with a 99.5 percent vaccination rate.

(91)  Scientific studies show that the acellular pertussis vaccine currently in use is contributing to whooping cough outbreaks. Studies conducted by the FDA and CDC have concluded that “although individuals immunized with an acellular pertussis vaccine may be protected from disease, they may still become infected with the bacteria without always getting sick and are able to spread the infection to others, including young infants who are susceptible to pertussis disease.” Another recent study published in BMC Medicine confirms that “asymptomatic transmission [by vaccinated persons] is the most parsimonious explanation for” the resurgence of pertussis in the US and UK. The study, published on June 24, 2015, explains that whooping cough is spread by waning vaccine immunity and from asymptomatic vaccinated persons infecting others.

(92)  Thus, there is no basis to blame whooping cough outbreaks on children with PBEs and scientific evidence belies the contention that excluding children with PBEs from schools will prevent whooping cough outbreaks. As scientists and public health officials acknowledge, a better vaccine is needed to prevent whooping cough outbreaks.

(93)  Similarly, the Disneyland measles outbreak, which was used to enact SB 277, does not justify the law, because children with PBEs did not cause or contribute to that outbreak. Indeed, the Disneyland outbreak is evidence that draconian legislation like SB 277 is not needed to protect California from an uncontrollable measles outbreak.

(94)  According to the CDPH, 136 Californians contracted measles in the Disneyland outbreak. 56 percent of the cases occurred in adults and 30 percent of the cases with vaccine records had been vaccinated. Less than 18 percent of the cases occurred in school-aged children and CDPH does not report their vaccination status. No measles transmission occurred in schools and no schoolchildren were quarantined. Moreover, each of the 136 persons infected during the outbreak recovered without incident. Based on these facts, there is no reason to believe that the Disneyland outbreak would have occurred any differently if SB 277 had been in place.

(95)  The containment of that outbreak clearly evidences that there is no need or justification for a draconian measure that bars children with PBEs from school.

(96)  While children with PBEs became convenient scapegoats for the Disneyland outbreak, according to the CDC, the source of the outbreak was a visitor to or traveler from the Philippines who visited Disneyland in December 2014. Also according to the CDC, there are approximately 60,000 visitors and nearly 10,000 employees at Disneyland each day. Taking those numbers into account and considering that tens of thousands of visitors were potentially exposed to measles, the outbreak which, affected 0.00035 percent of the State’s population, is a testament to California’s ability to easily curtail measles outbreaks originating in the most populated place in the State without resorting to the exile of children from schools and daycares.

(97)  Further evidence of the lack of necessity for SB 277 is the much-publicized 2014 case of a man infected with measles who rode BART for four days. While the “BART rider with measles potentially exposed thousands” according to news reports, no one was infected. These examples clearly evidence that our state is well protected from a measles epidemic and that an extreme measure like SB 277 is not needed.

(98)  Notably, even with 100 percent vaccination, outbreaks will occur because current vaccines are not capable of eliminating diseases. For example, nearly all mumps cases occur in fully-vaccinated persons, as evidenced by a 2014 outbreak among National Hockey League players and by the recent outbreaks at colleges, including Harvard, where every one of the 40 students infected with mumps was vaccinated. Importantly, the mumps vaccine’s efficacy is currently the subject of a False Claims Act lawsuit pending in the U.S. District Court for the Eastern District of Pennsylvania, Case No. 10-4373 (CDJ). The case was brought by two former virologists who were involved in testing the efficacy of the mumps vaccine and who allege that the vaccine’s manufacturer engaged in fraudulent testing and data falsification to conceal the vaccine’s diminished efficacy. SB 277 thus mandates the purchase and use of a product that is the subject of a pending False Claims Act lawsuit.

(99)  Measles vaccine efficacy is also in question. In 2014, a vaccinated person in New York contracted measles and transmitted it to four other vaccinated individuals. Gregory Poland, M.D., editor in chief of the scientific journal Vaccine and founder of the vaccine research group at Mayo Clinic has published an article titled “The Re-Emergence of Measles in Developed Countries: Time to Develop the Next-Generation Measles Vaccines?” The article explains that the current measles vaccine fails to protect 2 to 10 percent of those who receive the recommended two doses of the vaccine. According to Dr. Poland, “[t]his leads to a paradoxical situation whereby measles in highly immunized societies occurs primarily among those previously immunized…suggesting that even two doses of the vaccine may be insufficient at the population level” to prevent outbreaks. Dr. Poland concludes that “[t]he practical answer to the dilemma of measles re-emergence is the development of better, next-generation vaccines.”

(100)  It is thus indisputable that children with PBEs did not cause or exacerbate California’s pertussis or measles outbreaks and that vaccine failure played a large part in those outbreaks. Against this factual backdrop, depriving children with PBEs of their Constitutionally-guaranteed right to attend school because of those outbreaks defies logic and shocks the conscience.

(101)  Even assuming, arguendo, the State could establish a compelling state interest, which it cannot, SB 277 is not narrowly tailored. SB 277 seeks to increase vaccination rates in discreet areas or “pockets” with higher PBE rates by removing children with PBEs from all schools in the entire state. Narrow tailoring would require less restrictive means of addressing those “pockets,” such as through public service announcements or other forms of outreach and education before an extreme law like SB 277 can be considered. This is especially true because PBE rates in those “pockets” had declined with AB 2109 and would likely continue to decline if AB 2109 had remained in effect. As another example of narrow tailoring, the State could have and should have directed its attention to getting “conditional” entrants, which make up nearly seven percent of kindergarten students, “caught up” on their vaccines, rather than focusing on kicking out children with PBEs, who make up less than half of “conditional” entrants, from school. Moreover, under AB 2109, the State had the option to temporarily exclude children with PBEs during outbreaks. This procedure has worked for decades to reduce the risk of disease transmission and to ensure schools are protected from outbreaks. With such a narrowly tailored law already in place to which the State did not need to resort during the Disneyland outbreak, the State had no justification whatsoever, let alone a compelling state interest, to permanently bar children with PBEs from our schools.

(102)  Importantly, if the State is interested in eliminating “pockets,” taking children out of schools and forcing them into homeschooling has the opposite effect. Assuming as is likely, that the law results in homeschooling all children who are not fully vaccinated, these children will meet in homeschooling groups, have playdates, go to the park and theme parks, go to the beach and even to Disneyland, thereby creating more of the same “pockets” that the State claims to eliminate with SB 277. Of course, since children with PBEs are not inherently infectious or contagious and do not pose a threat, any perceived “danger” from “pockets” is merely theoretical and fear-based and has no basis in evidence.

(103)  In addition to serving no compelling state interest and being unacceptably overbroad, SB 277 will subject susceptible children to possible vaccine injury. Families who delay or forego vaccination typically do so after experiencing vaccine injury or after learning that their children are susceptible to vaccine injury. A blanket medical mandate would only be acceptable if the product mandated was shown to be completely safe. While vaccines are generally safe, they are not safe for everyone.

(104)  According to the CDC and scientific studies, even with careful screening, vaccines are capable of causing serious harm. Vaccine side effects can range from mild problems such as fever, rash and swelling of glands, to moderate problems such as seizure, joint pain or low platelet count, to severe problems such as serious allergic reactions. Rare but severe vaccine reactions include deafness, long-term seizures, coma, lowered consciousness, anaphylaxis, and permanent brain damage.

(105)  As part of the 1986 National Childhood Vaccine Injury Act (“NCVIA”), 42 U.S.C. § 300aa-10, which granted blanket liability protection to vaccine manufacturers and administering doctors, the U.S. Government publishes and maintains a table of recognized severe vaccine injuries which are presumed to be caused by vaccines if they occur within timeframes set forth in the table. Recognized severe vaccine injuries include anaphylactic shock, encephalopathy (brain swelling), shock-collapse, residual seizure disorder, or “any acute complication or sequela (including death)…”

(106)  As part of the NCVIA, the U.S Government also established the Vaccine Injury Compensation Program (“VICP”) or “vaccine court;” a little-known administrative system with no judge, no jury, no discovery as of right, no rules of evidence and no transparency, where government doctors and lawyers review claims. If petitioners prevail, vaccine injury victims receive future care and lost wages out of a fund replenished by a 75-cent excise tax on each dose of vaccine sold. To date, the fund has paid more than $3 billion to vaccine injury victims or their survivors upon the death of the victims.

(107)  Thus SB 277 comes at a tremendous cost to the State’s children and families, without conferring any, let alone sufficient, public health benefit to justify the many deprivations of fundamental rights it has caused and continues to cause. With no public health benefit, SB 277 eliminates educational options for thousands of children.

(108)  Depriving children of the right to go to school, the only educational “options” SB 277 leaves available for children with PBEs are homeschooling or self-directed independent study. For Plaintiffs and their children, these “options” provide only cruel illusions of choice.

(109)  Homeschooling a child typically requires one parent to work full time as the sole income provider while the second parent stays home to educate their children. Homeschooling is not a viable option for most single parents, families that require dual incomes to provide for their children, parents who lack sufficient education to homeschool, or parents who are not fluent in English, which is statutorily required for homeschooling.

(110)  With homeschooling as the only educational option, the impact of SB 277 is overwhelmingly felt by low-income single parent or immigrant families, resulting in wealth-based discrimination that violates the children’s fundamental interests. Parents are either forced to comply with a mandate that violates their religious or deeply-held beliefs in order for their children to receive an education, or they are forced to sacrifice employment and income while they attempt to educate their children at home. For some children, no school-based education will mean no education. California will not condone subpar education, much less no education at all. Homeschooling, when chosen by the family, may be a good option. But families who are unwilling or unprepared to homeschool will not see it as a rewarding experience and cannot provide the kind of education these children deserve and to which they are legally entitled.

(111)  The second “option” afforded to the children of parents who cannot or will not comply with SB 277 is independent study with no classroom based component. Independent study is not appropriate for young children or any child lacking self-discipline to supervise his or her own education.

(112)  By law, independent study education is to be equal in quality and quantity to classroom instruction, yet SB 277 puts no safeguards in place to assure that students in independent study are afforded the same quality as classroom instruction.

(113)  The California Department of Education’s (“CDE”) webpage states its mission as providing “…a world-class education for all students, from early childhood to adulthood.” But there is nothing “world-class” about removing children from school. On the topic of independent study, the CDE website reassures, “[s]chool districts cannot force students into independent study programs; parents and students choose this type of study on their own.” Yet the California legislature has forced students into this type of study, leaving parents and students with no choice whatsoever. In doing so, the State has impermissibly abdicated its Constitutionally-mandated duty to provide all children with an equal education.

(114)  Plaintiffs are children whose education the State of California cannot afford to ignore or impede. These children are entitled to their dreams of college and productive careers. They deserve to learn, but their dreams will be forever destroyed if California continues to relegate these children to learning conditions that pale in comparison to those they had in public or private school, and which compromise their parents’ ability to provide for their basic needs.

(115)  The State currently denies these children the avenues necessary for them to have equal educational opportunities as all children in California. Without restoring their right to attend public and private school, these children will have no chance to realize their dreams as fully educated members of their communities.

(116)  Through this lawsuit, Plaintiffs seek to hold the State and its officials accountable to their Constitutional mandate to provide a free and equal education to all California public school children.

Violation of Rights of Children With Disabilities

(117)  Several of the Plaintiffs have children who have disabilities and are protected under the ADA, IDEA and Section 504 of the Rehabilitation Act of 1973.

(118)  The Federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et. seq protects students who qualify for Special Education. There are 13 disability categories that qualify a student to receive the protections and services promised by this law: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, intellectual disability, multiple disabilities, orthopedic impairment, other health impairments, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment. Each public school child who receives Special Education and related services must have an Individualized Education Program (“IEP”) on record with his or her school. According to the California Department of Education, over 700,000 California students received Special Education services in the 2013-2014 academic school year.

(119)  In enacting the IDEA, Congress minced no words in demanding that the historical exclusion of children with disabilities from public education come to a permanent halt: “[b]efore…the enactment of the Education for All Disabled Children Act of 1975…more than one half of the children with disabilities in the United States did not receive appropriate educational services that would enable such children to have full equality of opportunity.” 20 U.S.C. § 1400(2)(B). Congress also found that “1,000,000 of the children with disabilities in the United States were excluded entirely from the public school system and did not go through the educational process with their peers.” 20 U.S.C. § 1400(2)(C).

(120)  The IDEA requires that states and local education agencies ensure that each child with a disability is provided with a Free and Appropriate Public Education (“FAPE”). FAPE consists of special education and related services designed to meet the child’s unique needs. A school district cannot stop providing IDEA educational services to a child or change a child’s placement without notice and an opportunity to object to the cessation of services by utilizing a system of administrative due process, which can include a hearing or mediation.

(121)  Notably, no California student protected under the IDEA may participate in an independent study unless such independent study is specifically required by the child’s IEP. Children with disabilities and special needs have the right to be “mainstreamed” and to learn with their non-disabled peers and relegating these children to independent study violates federal law.

(122)  Moreover, students who qualify for Special Education under the IDEA who elect to attend private school may receive “services plans” and “equitable services” through public funding set aside for children with disabilities in private schools instead of IEPs. SB 277 provides no framework for protection of private school IDEA services plans, resulting in discrimination of a federally-protected class of children with IEPs.

(123)  Since its implementation on July 1, 2016, SB 277 has been inconsistently interpreted and applied, causing disparate treatment of children across the State, including children with medical conditions and physical, neurological and learning disabilities. Consistent with the IDEA, the Legislature expressly exempted students with IEPs from SB 277. However, some school districts are refusing to allow students with IEPs to remain in school, taking the position that the IEP amendment is vaguely worded and makes no specific reference to children’s rights to continue uninterrupted with their education in the same circumstances as provided to them before SB 277.

(124)  Despite repeated requests for clarification, Defendants State Department of Education and State Board of Education have declined to provide guidance to schools regarding the application of the IEP exemption, leaving it up to individual schools and school districts to interpret and implement the law. As a result, some school districts, like the Los Angeles Unified School District, have issued written guidelines to schools within their districts to allow children with IEPs to attend school without full vaccination, while most other school districts, including the Orange County Unified School District, have issued written guidelines and letters instructing schools within their districts to refuse admission to children with IEPs. The Orange County Unified School District has gone so far as to instruct schools to obtain court orders requiring vaccination of children with IEPs.

(125)  Children with IEPs are protected from discrimination under the federal IDEA and denial of their right to attend school and inconsistent implementation creates disparate treatment among children with IEPs and deprives them of their State and federal rights. Some children with IEPs are allowed to enroll in school and advance to the seventh grade and some are not, even though they are entitled to equal protection under the law.

(126)  Even Professor Reiss, a staunch supporter of SB 277, admits in her July 10, 2016 article that the IEP amendment’s interpretation “is not fully clear” and that, “[i]n the absence of guidance, different counties have followed different interpretations.” Although Professor Reiss ultimately appears to miss the legal significance of disparate treatment of federally-protected children with IEPs, the fact that she readily admits that disparate treatment exists is a serious, albeit unintentional, condemnation of SB 277.

(127)  Similar to the IDEA, Section 504 of the Rehabilitation Act of 1973 (“Section 504”) prohibits discrimination based upon disability. Section 504 protects students who don’t meet the criteria for special education but still require special accommodations due to a physical or mental impairment that limits a major life activity. Section 504 requires that students with disabilities have their needs met as adequately as the needs of non-disabled students. These students also are entitled to FAPE. However, Section 504 protection is not provided for in SB 277, resulting in discrimination of a federally-protected class of children.

(128)  SB 277 has tremendous impact on children with disabilities. Plaintiff Adriane Hoeft’s son O.C. is impacted by Transverse Myelitis, leaving him with flaccid paralysis from the waist down. O.C. is wheelchair-bound. He needs significant physical assistance and has an IEP. O.C. attends school with a PBE that will “grandfather” him in until he reaches the seventh grade. At the seventh grade “checkpoint,” however, O.C. will be expelled from school. Ms. Hoeft will not continue to vaccinate O.C. or his younger brother, because O.C.’s Transverse Myelitis was caused by vaccines he received as a toddler. Thus, it is by virtue of his disability that O.C. will not receive any more vaccines and it is by virtue of that same disability that O.C. will be denied his right to attend school if SB 277 is not struck down.

(129)  Similarly, Plaintiff Dawn Saunders’ child K.S. is disabled from a traumatic brain injury. K.C. has an IEP, but is being denied admission to the seventh grade because her previously-valid PBE “expired” at the seventh grade “checkpoint.” While children slightly younger and older than K.S. can remain in school, K.S., because she is at the arbitrarily-selected seventh grade “checkpoint,” is barred from school. This violates K.S.’s rights to equal protection as she is deprived of her constitutionally-protected right to an education while her peers, including those with “grandfathered” PBEs, can attend school. Moreover, K.S.’s school is refusing to honor her IEP, further violating her equal protection rights, as other children with IEPs are being admitted to schools in other school districts across the State. Finally, K.S.’s family is low-income and on MediCal. Being barred from school deprives K.S., among other things, of her right to an equal education, her right under the IDEA and her IEP, and to access school-provided meals. The tremendous burden on K.S., an already-burdened child with a disability and her widowed mother, is objectively unacceptable, let alone justifiable. The State simply cannot justify continuing to enforce SB 277 to the detriment of innocent children like K.S.

(130)  Importantly, Section 504 also prohibits discrimination of children with disabilities based on fear of contagious disease. The Supreme Court held that “…the fact that a person with a record of physical impairment is also contagious does not suffice to remove that person from coverage under Section 504.” School Board of Nassau County, Fla., v. Arline 480 U.S. 273 (1987). It is under these rules that children with illnesses like HIV/AIDS and hepatitis B cannot legally be excluded from school for “fear of contagion.”

(131)  Importantly, the prohibition from discrimination against persons for fear of contagion includes both actual and perceived contagiousness. This means, for example, that since a child with chronic hepatitis B cannot legally be excluded from school for fear of contagion, then a child likewise cannot be excluded from school for being perceived as infectious or contagious with hepatitis B solely because he has not received a vaccine for the disease.

(132)  Under SB 277, the State excludes children with PBEs from school for fear of contagion. In doing so, the State, albeit unintentionally, treats children with PBEs as chronically infectious and contagious, placing them in a protected class of persons under Section 504, at least as to hepatitis B. This forces the State to make a decision regarding how it views children with PBEs. Either children with PBEs are healthy and pose no threat to public health or children with PBEs are perceived by the State as chronically infectious and contagious and, therefore, protected under Section 504. Either way, these children cannot be excluded from school based on “fear of contagion.”

(133) Yet as a result of SB 277, children are barred from schools they wish to attend and are instead left only with the separate-and-unequal option of either receiving an education at home and in isolation or, for some children, receiving no education. This abrupt discontinuation of services to children with disabilities violates federal law. Parents of students protected under IDEA and Section 504 are entitled to notice before a district stops services or changes a child’s placement or school. In violation of Section 504, students are being excluded from California schools without a hearing or due process, in violation of the IDEA, Section 504, and the 14th Amendment to the Constitution of the United States.

(134))  Plaintiffs’ inability to access equal educational opportunities for their children and the treatment of their children like vectors of disease has caused them and their children significant distress and hardship, including but not limited to the deprivation of rights guaranteed by both the California and Federal Constitutions and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma. Education and participation in society is a supremely important social institution and the right to go to school and obtain an equal education has long been recognized as one of the most important rights afforded to Californians. Each day that children are denied the right to go to school, they suffer irreparable harm as a direct result of Defendants’ violation of their constitutional rights.

(135)  If SB 277 is not enjoined, Defendants will continue to enforce this unconstitutional law against Plaintiffs and against thousands of children across the State, thereby depriving them of their State and federal constitutional rights. The declaratory and injunctive relief sought by the Plaintiffs, on the other hand, will require Defendant CDPH to reinstate the PBE form that was in use for AB 2109 by making a link to it available on its Internet website, reinstate its policies that existed under AB 2109 and will require schools to admit children with PBEs to kindergarten and the seventh grade. That did not constitute a hardship for fifty-five years and does not constitute a hardship now.

Next, comes two things:

(1)  an explanation of what we are asking the court to do…, and 

(2)  What we are ALL going to do next.

To Read the entire eighty-nine (89) page Complaint right now, click on:  first amended complaint.

 

So, stay tuned.  The fun has begun..

 

Opinion by Consumer Advocate Tim Bolen