The problem with SB 277, the law that eliminated personal belief exemptions (PBEs) in California

I didn’t post anything yesterday because, for whatever reason, I was beat on Monday night. So I missed discussing a study released on Monday that made the news. However, better late than never, right? In any event, a very frequent topic on this blog in 2015 was SB 277, the law passed in California that eliminates nonmedical so-called “personal belief exemptions” (PBEs) to school vaccine mandates. After SB 277, nonmedical exemptions were no longer allowed in California. The law was basically fallout from the Disneyland measles outbreak. The outbreak began over the Christmas holidays of 2014 and continued for several months into 2015, ultimately spanning eight states and two additional countries (Canada and Mexico). Because of where it happened and how many states it encompassed, the Disneyland measles outbreak made it politically possible for California legislators to do something that would definitely not have been possible before the outbreak: Pass a law outlawing PBEs. Prior to the outbreak, only two states (Mississippi and West Virginia) allowed only medical exemptions, while the other 48 states allowed some combination of religious or personal belief exemptions (PBEs, or, as I like to call them, “I don’t wanna” exemptions), As I’ve said many times before, California was the last state I would have every predicted to pass law to become like Mississippi or West Virginia, and I was happy to be mistaken about this. Co-sponsored by Senators Richard Pan and Ben Allen, SB 277 was approved by the California legislature in June 2015 and signed into law by Governor Jerry Brown on June 30, 2015, taking full effect at the beginning of the 2016-2017 school year.

The intent of SB 277 was to decrease the nonmedical exemption rate and thereby increase vaccine uptake. This was a goal that had been perceived as critical in the years leading up to the passage of SB 277 because there were pockets of low uptake that were leading to outbreaks, an observation that led me to predict in 2009 and 2014 that when the next big outbreaks happen they’d happen in California. Unfortunately, the Disneyland measles outbreak proved me, if not right, at least definitely not wrong either. (Thanks to SB 277, my more recent prediction is that when the next big outbreaks occur they’ll happen in Texas, and California doesn’t even show up in a recent study looking at pockets of low uptake that would be most likely to lead to new outbreaks.) We also know from early data that SB 277 works. It almost immediately began to decrease nonmedical exemptions, as shown in figures from 2017, before the first year of its implementation had even ended. We also know, unfortunately, that the rate of medical exemptions was starting to tick upward at the time of the that study. Part, but not all, of that was probably due antivaccine pediatricians, family practitioners, and other doctors following a trail blazed by Dr. Bob Sears by selling medical exemptions based on non-evidence-based

What can we say now that California is into the third school year under SB 277? So how is SB 277 doing, two years later? In a study by Salini Mohanty et al, we find out. Basically, what Mohanty et al did was to describe the experiences of health officers and immunization staff in California in addressing medical exemption requests. They did this through 34 interviews with 40 health officers and immunization staff representing 35 of the 61 local health jurisdictions in California.

First, the authors note that in California:

Medical exemptions submitted to the school by a parent or guardian must meet certain criteria to be legally acceptable under California law, including the following: (1) a written statement signed by a licensed physician (MD or DO), (2) a statement that the child’s physical condition and/or medical circumstance is such that immunization is not considered safe, (3) an indication of which vaccines are being exempted, and (4) an indication of whether the exemption is permanent or temporary (with an expiration date if temporary). In Mississippi and West Virginia, a central or state-level review is required for all medical exemptions submitted by physicians. In contrast, California requires parents or guardians to submit medical exemptions directly to the schools.

This is, of course, the single biggest flau in SB 277. It doesn’t require any sort of review by a state health officer and allows the acceptance of a letter from any licensed physician. As a result, a cottage industry selling medical exemptions in California has sprung up, following a trail blazed by Dr. Bob Sears, who started giving paid seminars to parents on how to get around the requirements of SB 277 almost as soon as the bill was signed into law by Governor Jerry Brown. As a result, medical exemptions have increased. Some of that was probably due to parents whose children had been eligible for medical exemptions but just got PBEs because it’s easier to sign a form than to get a doctor to write them a letter, as noted by the authors:

In the 2 school years after the implementation of SB277, the proportion of kindergarten students reported to have received all required vaccines increased from 92.8% in 2015–2016 to 95.1% in 2017–2018, and the rates of personal belief exemptions (PBEs) have steadily declined since the 2013–2014 school year. However, the rates of medical exemptions in California after the passage of SB277 increased 250% (from 0.2% in 2015–2016 to 0.7% in 2017–2018).7 Counties that had high PBE rates before SB277 also had the largest increases in medical exemptions during the first year of SB277 implementation, leaving portions of California susceptible to vaccine-preventable outbreaks.8,9 Potential explanations for this steep increase include underuse of medical exemptions before SB277 (when PBEs could still be obtained) and the willingness of some physicians to write medical exemptions for parents who are vaccine hesitant whose children may lack scientifically justified medical contraindications as defined by the Advisory Committee on Immunization Practices. Previous studies have revealed that states that have more lenient immunization laws (permitting PBEs; easy to obtain exemptions) generally have higher nonmedical exemption and disease rates compared with states with stricter exemption laws. Moreover, there is considerable variability in the implementation and enforcement of exemption requirements among states.15 Importantly, easier processes for granting exemptions at the school-level is associated with the increased likelihood of a child having an exemption.

As I’ve documented, these bogus “medical exemptions” generally run parents between $100-$300 a pop, depending on the physician. A reader even sent me an example of just such a letter from Dr. Bob Sears that was obtained through an online application without the child even being seen.

The authors noted four main themes in their structured interviews: (1) the role of stakeholders, (2) reviewing medical exemptions received by schools, (3) medical exemptions that were perceived as problematic, and (4) frustrations and concerns over medical exemptions. As far as the role of the stakeholders, the physicians’ role was described as writing medical exemptions and having the authority and discretion to decide the reason for the medical exemption. The exemption is then submitted directly to the school, and the school staff reviews it on the basis of criteria in SB 277. If a discrepancy is noted, namely missing elements of the medical exemption, different methods were employed to address the discrepancy. These methods include reaching out to the local health department for guidance, reaching out to the parent, or occasionally contacting the physician. Unfortunately, the local health department has no authority to question the scientific validity of the medical exemption under California law. As a result, many of the participants want the California Medical Board to take a much more active role in disciplining physicians writing “problematic” medical exemptions. (Indeed, the Board did just that with Dr. Bob Sears.)

Basically, any licensed doctor can list any reason he or she wishes to in a medical exemption letter, and there’s nothing in SB 277 that lets health authorities deny it, an issue I’ve discussed before. Antivax groups maintain lists of “vaccine-friendly” doctors willing to write dubious medical exemptions, many of whom advertise on various antivaccine sites their willingness to write medical exemptions. Basically, as the study notes, all local jurisdictions can do is to verify whether the doctor is a DO or MD using a state database, reach out to the physician and/or parent, or, in extreme cases, report the doctor to the Medical Board of California.

As the authors note:

The most commonly reported conditions that participants described as suspicious were family history of allergies and family history of autoimmune disorders because these are not medical contraindications to immunization according to the Advisory Committee on Immunization Practices.10 However, participants did acknowledge that although they might not agree that these are scientifically valid contraindication to immunization, the regulatory language of SB277 does state that it is legally acceptable for a family medical history to be taken into consideration.4 Of greater concern were reports of physicians who advertised medical exemptions online for a fee. Examples that participants had encountered included a physician who charged a fee for watching a video on vaccines in exchange for a medical exemption and a physician who required and charged for medical tests of the child and family members to establish a family medical history. Participants also described receiving medical exemptions signed by physicians who do not typically treat children (cardiologists, dermatologists, surgeons, and physicians at medical marijuana dispensaries) and by unauthorized nonphysician providers, including nurse practitioners.

Basically, the law has nothing to say about these abuses and gives local school officials and jurisdictions no authority to do anything about them other than report physicians to the Medical Board of California, which, understandably, few local school health officials want to do.

Tracking medical exemptions is also problematic. Only five jurisdictions tracked all medical exemptions, and this was the result:

One of the 5 jurisdictions that tracked medical exemptions was mentioned in a federal civil lawsuit against SB277 that was filed by a group of parents and nonprofit organizations. The lawsuit, which mentioned the Department of Public Health, the Department of Education, the local health jurisdiction, and health officials from the local jurisdiction, created some concern among other jurisdictions that they could be targeted next. This lawsuit was ultimately withdrawn, but this case was frequently cited as a reason for not tracking medical exemptions among other participants. The participant from the jurisdiction that was mentioned in the lawsuit described receiving “hate mail and death threats across all social media” as a result of the decision to track medical exemptions; however, this jurisdiction continued to track medical exemptions during the first year of SB277 implementation. Other reasons that jurisdictions did not track exemptions included the following: not being required by law to do so, not having the perceived legal authority to track, not having the staffing or resources, wanting to see how the law worked before deciding to track, having low rates of medical exemptions and PBEs before SB277, and trusting doctors’ judgements about the reasons for medical exemptions.

This is the second biggest flaw of SB 277: It does not require the tracking of medical exemptions or provide resources to local jurisdictions to do so. California has no organized method to systematically determine for what conditions medical exemptions are being issues, which means it can’t tell how many are questionable and how many are justifiable by science.

As a result of all these issues, the interviewees noted feelings of frustration and concern over these issues: (1) frustration over the lack of authority for local health departments, (2) concern over the burden on school staff to review medical exemptions, (3) frustration with physicians who are writing problematic medical exemptions, and (4) concern about an increase in medical exemptions under SB277. Here are some sample quotes:

  • “My frustration is dealing with these doctors that would write what is thought to be maybe not completely valid medical exemptions for the students whose parents just don’t want them to get any. That’s my personal frustration, and that is shared by a lot of school nurses.” Immunization coordinator, urban jurisdiction, low PBE rate, medium household income.
  • “Some of them go into great detail. In fact, almost a startling level of detail considering what they’re actually alleging as contraindications…like I say, I’ve got very little sympathy…the physicians know better. And this is where I start to get a little bit annoyed with my own profession.” Health officer, urban jurisdiction, low PBE rate, medium household income.
  • “I don’t get to approve or disapprove the medical exemptions. The law didn’t give the health officer any role, and I’ll tell you how ridiculous this is. In comparison with the fact that I have to review dog rabies vaccine exemption requests and I get to see medical records of dogs and I have the authority to disapprove requests for exemptions for rabies vaccines…and for people, we don’t have that authority.” Health officer, urban jurisdiction, medium PBE rate, high household income.

That last one really nails the level of ridiculousness of the worst shortcoming of SB 277. Don’t get me wrong. It is far better to have SB 277 than not. However, it should be viewed only as a first step. Like many new laws, it needs tweaking and fixing. As Richard Pan and Dorit Rubinstein Reiss note in a commentary:

Unfortunately, currently, only 6 states require the involvement of public health departments in reviewing MEs. Thus, most health officers and licensing boards do not have direct access to data on MEs. To protect public health, this situation needs to change. States can collect and maintain searchable records of MEs, which could be included as part of state immunization registries. This information would both benefit patients with valid MEs by alerting clinicians of patient MEs and provide important data for public health. Laws should also require parents to submit MEs to public health departments as well as schools. These data allow for public health officers to assess public health risks from a congregation of unvaccinated children and limit the risk of outbreaks.

SB 277 is good, but it has two glaring holes in it. These are defects that should be addressed by the California legislature as soon as feasible. Unfortunately, given the vociferousness of the negative reaction to SB 277 and the difficulty getting it passed in the first place, coupled with the backlash of antivaccine activism it provoked, I fear that the will to do this might not be there. After all, no other state since California has passed an SB 277-like law, and it’s not for lack of trying. Meanwhile, in numerous states like Texas, antivaxers are becoming more politically powerful by co-opting small government, anti-regulation conservative philosophy to represent school vaccine mandates as an un-American assault on freedom and aligning with conservative groups to punish legislators who try to eliminate nonmedical exemptions, or at least make them more difficult to obtain. I hope I’m wrong.