Confusion reigns over implementation of SB 276 and SB 714. Is Gov. Newsom to blame?

This is the story of how California tried to protect its children against infectious disease, but more importantly it’s a cautionary tail about how politics can lead to massive confusion. Before we get to the confusion, I’ll start with some background that makes me think that Gavin Newsom and his wife California First Partner Jennifer Siebel Newsom are helping to feed it. Specifically, Ms. Newsom has been playing footsie with antivaccine protesters, and one of them posted video that’s come back to haunt her, as it shows her signaling sympathy with their cause and promising to help in whatever way she can.

But first, some background.

Once upon a time…oh, five years ago…there was a measles outbreak at the Happiest Place on the Earth, a.k.a. Disneyland. It made the international news, and when it finally burned itself out there had been cases of measles in seven US states, Canada, and Mexico, for a total of 147 cases, likely sparked by a visitor from overseas. The measles virus type in this outbreak (B3) was identical to the virus type that caused a large measles outbreak in the Philippines in 2014 but had also been detected in several other countries. As a result of this outbreak, which was associated with unvaccinated children, California did something amazing. Its legislature passed a law, SB 277, that eliminated nonmedical exemptions to school vaccine mandates, and the governor actually signed it. As a result, parents could no longer invoke religion or “personal belief” as a reason to refuse vaccination for their children.

And it was good, particularly for the children of California.

There was, however, a problem. All was not perfect, even with SB 277. The reason was simple. To get the law passed, certain compromises had to be made, the most problematic of which was that SB 277 allowed any physician to write medical exemption letters for parents, with no real provision for effective oversight to make sure that only medically accepted indications were used as the reason for the exemption, other than the state medical board, which has, unfortunately, been hardly any oversight at all. (“Dr. Bob” Sears was one exception.) Anyone who knew the antivaccine movement and the quacks who enable it could have predicted what would come next. (Certainly I did.) Predictably, the antivaccine quacks in California saw this loophole as a business opportunity. It wasn’t long before quacks started selling bogus medical exemptions for antivaccine or vaccine-hesitant parents, claiming all sorts of scientifically unsupportable “indications,” such as for allergies, family history of autism, or autoimmune diseases, none of which are accepted medical contraindications for vaccination. Some even did it online, and in the Bay area five doctors wrote one-third of the medical exemption letters.

And it was not good.

Thus was born SB 276. In response to the problem of antivaccine-sympathetic doctors writing bogus medical exemptions, Senator Richard Pan, who had co-sponsored SB 277 and was the driving force behind getting it passed, introduced SB 276. In brief, SB 276 would mandate a database of medical exemptions, so that the state can keep track of which doctors are issuing the most medical exemptions, and require that requests for medical exemptions to school vaccine mandates be approved by the State Public Health Officer or designee, who could reject exemptions not supported by science.

SB 276 as passed would also require the department to annually review immunization reports from schools, to identify schools with an overall immunization rate of less than 95%, physicians and surgeons who submitted five or more medical exemption forms in a calendar year, and schools and institutions that do not report immunization rates to the department. It would also require a clinically trained staff member who is a physician, surgeon, or a registered nurse to review all medical exemptions meeting these conditions, authorizing the State Public Health Officer to review the exemptions identified by that staff member as fraudulent or inconsistent with established guidelines. The department can report physicians issuing fraudulent or scientifically unjustified medical exemptions to the state medical board. Other important changes to the law in SB 276 include provisions that: (1) require physicians issuing a medical exemption to actually see and examine the child; (2) require physicians who are not the child’s primary care physician to notify that child’s primary care physician when they issue an exemption; (3) require physicians to use a state form that requires them to clearly address the specific contraindications to vaccination being invoked; (4) bar physicians demanding a separate charge for writing an exemption, although of course they can charge for the office visit during which they evaluate and examine the child.

All of these were reasonable, albeit also a compromise. Governor Gavin Newsom had demanded that SB 276 narrow its focus to reviewing medical exemption requests from doctors who write five or more medical exemptions in a year and to requests coming from schools or day cares with immunization rates of less than 95%. it wasn’t a horrible compromise, but it was less than ideal. As the bill was ready to send to his desk, though, Gov. Newsom went back on his promise to sign it, and demanded more changes. Specifically, he didn’t want the state to review medical exemptions issued before January 2020, when the law went into effect, a truly stupid idea that would have, if passed, sparked a mad rush by parents to secure nonmedical exemptions before the end of 2019.

Fortunately, an agreement was struck. Gov. Newsom agreed to sign SB 276 as long as the changes he wants were passed in a second bill, SB 714. Gov. Newsom signed both bills into law at the same time. The agreement was definitely a mixed bag. Unfortunately, it included Gov. Newsom’s mind-numbingly bad idea to grandfather in all existing medical exemptions before January 1, 2020. SB 714 also unfortunately removed a provision in SB 276 that would have required doctors to certify that medical exemptions are accurate, under penalty of perjury. However, Senator Richard Pan, who had spearheaded both SB 277 and SB 276, managed to get Gov. Newsom to require that a new medical exemption would be required when a child enters kindergarten and then seventh grade or when a child changes schools. By adding that provision, permanent medical exemptions could no longer be valid throughout a child’s K-12 education.

With that background, now on to the confusion:

A pair of hotly debated new California laws limiting which schoolchildren can skip vaccines appears stuck in bureaucratic limbo, the result of uncertainty over how to interpret last-minute changes made before the legislation was signed last year by Gov. Gavin Newsom.

Meanwhile, the state Department of Public Health, which is tasked with offering key guidance on the new vaccine laws, has been silent on the confusion over the rules.

Senate Bill 276 calls for the public health department to create a standardized vaccine exemption form that doctors will electronically submit to the state for review beginning next January. Newsom insisted on a second piece of legislation — Senate Bill 714 — to ensure the new rules would be “implemented in an effective manner.”

I was afraid of this. The whole manner in which Gov. Newsom demanded changes in SB 276 so late in the process, leading to a rushed, jury-rigged solution that further watered down SB 276 with SB 714. It’s also true that one aspect of SB 714 did improve on SB 276, namely the invalidation of any medical exemption written by a physician who has been disciplined by the Medical Board of California or is under investigation for any reason, even if that reason is unrelated to vaccines.

Of course, there’s a problem with this. Regulations are where the rubber hits the road for any new law. They’re needed to implement the law and to guide public health and school officials on how to follow the law. The California Department of Public Health has not yet provided the guidance necessary:

But school nurses who review medical exemptions said that unless they receive guidance from the public health department telling them otherwise, exemptions granted by scrutinized doctors will not be reviewed until 2021.

“I don’t think most school nurses understand this law,” said California School Nurses Assn. President Pamela Kahn. “When reading the law, I can see why you would assume it’s happening now, but that’s not happening now in the school community.”

Why? Surprise! Surprise! A hastily written law with ambiguous passages often leads to confusion in implementation:

While the law allows the state to review medical exemptions written before Jan. 1 in cases in which the approving physician has been disciplined by the medical board, it does not specifically say when those reviews should begin. Most California statutes take effect on the first day of the year after approval by the governor. But several key provisions in the vaccine law specify that they should take effect in 2021, leading some to say that later date also applies to the new review process.

The statute also doesn’t indicate whether the review of a disciplined doctor’s medical exemptions would be scrutinized automatically once punishment is finalized, or if decisions to investigate would be made on a case-by-case basis. It’s also unclear if the disciplinary action that brings additional scrutiny must be related to immunizations.

The article notes that there are currently four doctors with pending allegations related to immunizations before the medical board, including Drs. Sears, Ron Kennedy of Santa Rosa, Tara Zandvliet of San Diego and Kenneth Stoller of Santa Rosa.

And the public health department isn’t exactly a speedy bureaucracy:

But the language of SB 714 references a standardized form that has yet to be created by the public health department. Pan contends the intent of the law is still clear — doctors under investigation should not be writing new medical exemptions.

The public health department has until next January to create the form, which will be electronically transmitted to the state’s immunization registry for review — and possible rejection — by state public health officials. The public health department declined to comment on its timeline for crafting the new document.

Meanwhile, it certainly doesn’t help that Gov. Newsom’s wife, California First Partner Jennifer Siebel Newsom, is playing footsies with the antivaccine movement:

California First Partner Jennifer Siebel Newsom told anti-vaccine protesters rallying outside her Sacramento-area home that her husband’s administration is looking into their concerns about California’s new laws limiting who can be exempted from shots required for school, while also saying she believes there needs to be more dialog about whether some immunizations are unnecessary.

In a video taken Monday, Siebel Newsom is seen talking with the protesters about the vaccine laws signed by Gov. Gavin Newsom last year before she asks that they not post the video online.

“I think there needs to be more conversation around spreading out vaccines, around only giving children the vaccines that are most essential,” Siebel Newsom says in a portion of the short video posted on the Facebook page of one of the protesters.

Seriously, I have a hard time concluding from Ms. Newsom’s actions anything other than that she is, if not antivaccine herself, at the very least antivaccine-sympathetic or, a term I sometimes also use, antivaccine-adjacent. Those are some rather obvious antivaccine dog whistles that she reportedly laid down at that meeting! Indeed, the article reports that Ms. Newsom told the antivaccine protesters that Dr. Mark Ghaly, Secretary of the Health and Human Services Agency, which oversees the Department of Public Health, which in turn is responsible for implementing the law, is “talking to integrative and functional medicine doctors who understand this.” I can’t make up my mind whether this deserves the Godzilla Facepalm or the Jesus facepalm; so here are both:

As I’ve said before, functional medicine is quackery that combines the worst of conventional medicine (overtesting and overtreatment) with the worst of “alternative medicine” (pure quackery). It’s basically “make it up as you go along.” As for “integrative medicine,” that’s “integrating” quackery with medicine. Clearly, Ms. Newsom is into some dubious medicine; so it doesn’t surprise me that she at least leans antivaccine.

In fact, “antivaccine-adjacent” does seem to describe her, as she tries to have it both ways:

In the video, Siebel Newsom urged protesters to trust the new laws. The group has said it is concerned that the laws would erode the doctor-patient relationship by allowing the state’s public health department to determine whether a medical exemption is invalid.

“You have to trust,” she said. “If your child has a sensitivity or a vulnerability, then your doctors can still go through the process.”

She seems to think that there is medical controversy about this. There isn’t, which is why contraindications to vaccination are pretty clearcut and few in number. Her statement seems to imply that she thinks that doctors should be able to justify medical exemptions to vaccine mandates based on their “medical judgment.” We saw the result when California doctors were allowed to do that. That’s why SB 276 and SB 714 were passed in the first place!

My guess now is that Ms. Newsom was the problem when her husband reversed himself, went back on his promise to sign SB 276 in the form to which he had previously agreed, and demanded more changes. In a way, although it did weaken the law, in another way it strengthened it by invalidating the medical exemptions by doctors sanctioned by the medical board; that is, if the Department of Public Health ever gets around to implementing the law. Another wrinkle is that at least one antivaxxer claims that the Newsoms don’t vaccinate their children, although I take that story with a huge grain of salt.

I wasn’t able to find the actual video, which makes me suspect that the antivaccine protester who posted it took it down. I say this particularly in light of having come across a post like this chiding fellow antivaxxers for having posted the video of Ms. Newsom’s conversation with the protesters:

Key comment:

The California press has been on to the governor’s wife for many months. There are people who leaked things out they should have kept private, and there are people who fancy themselves as influential personalities in this movement who wanted to tell THIS EXACT REPORTER what was going on because they thought this was a friendly reporter.

Cutting the video off but still posting it has done colossal damage. Sure, there are things Jennifer said that aren’t shared, but the fact that she is sympathetic to the cause, willing to listen and help how she can, willing to have off the record conversations, and FOR THE LOVE OF GOD, alludes to anything that looks like she is willing to use her influence over her husband (which is illegal) for our cause is damning enough. She will never speak to strangers again, nor will anyone else with two brain cells to rub together.

This is not about the moms being mad or who votes. Until CA gets medical freedom advocates into office everyone there is perfectly happy with how things are. You have no power, as has been shown time and time again. By the time your people are in office, Gavin will be running for the White House. She wasn’t pandering to random people outside of her house. She came out to help.

Who thought Melody Gutierrez (the reporter) was friendly to the antivaccine movement? Well, I had my suspicions based on her story about Dr. Bob Sears that had a lot of false balance and basically portrayed Dr. Bob as a brave maverick bucking the system. So maybe antivaxxers in California have reasons to suspect that she’s a friendly reporter. This time around, she apparently betrayed them and ran with the story. Some of the antivaxxers in the thread seemed to think that Ms. Newsom merely met with the antivaxxers to do “damage control” for her husband. Maybe, but she clearly blew that antivaccine dog whistle and signaled she was at least sympathetic to antivaccine views.

California will, of course, eventually work out the details and the kinks, but the process is much more difficult and confusing than it needed to be, thanks to Gavin Newsom’s interference and reneging on his initial deal, actions likely influenced by his wife. It certainly doesn’t help that his wife recently met with antivaccine protesters and signaled to them that she’s sympathetic not just to their concerns but that she shares their affinity for quackery. It’s a good thing for transparency that antivaxxers just can’t to keep their mouths shut and that they have an obsessive need to post everything they do on social media. Attempts by antivaxxers to influence her to influence her husband are now public record. Gov. Newsom and his wife will have to tread very carefully now, and that’s a good thing.