July 20, 2020

Co-Sponsor S7573/A10813, Let doctors decide on medical exemptions

We finally have a companion bill in the Assembly that would restore physicians’ ability to give medical exemptions from vaccine mandates to attend school without interference from bureaucrats in the schools, or the NYC and NYS Departments of Health, who currently make these decisions. Assemblymember Angelo Santabarbara (D-Rotterdam) introduced Assembly Bill A10813 which is a companion bill to Senate Bill S7573 introduced by State Senator Monica Martinez (D-Patchogue.)

Medical exemptions have been notoriously difficult to get in New York, which is reflected in the very low rate of medical exemptions. Statewide .1% of all students have a medical exemption, which is half the national rate of .2%, and in New York City the medical exemption rate is .02%, one tenth of the national average. According to information obtained by us through a freedom of information request, 56% of all medical exemptions written by physicians in New York City were rejected by the NYC Department of Health and Mental Hygiene (NYCDOHMH) in the 2013-2018 period. These numbers are 1/50 to 1/100 of the amount necessary to have any effect on the most conservative herd immunity rate.

We heard time and time again that the religious exemption had to go to protect those children who cannot get vaccinated for medical reasons, yet at the same time the State has made the exemption process intended to protect those same children almost impossible to navigate.
The plight of medically fragile children became much more difficult when “emergency” regulations amending 10 NYCRR 66.1 that radically limited physicians’ ability to issue medical exemptions were issued on August 16, 2019 by the New York State Department of Health (NYSDOH). NYSDOH justified the emergency adoption of the amendments by claiming that there was a measles epidemic even though there were no known measles cases in the state at the time. And no evidence had been presented that medical exemptions were a factor in spreading measles. These emergency regulations were made permanent on December 31, 2019.

The intent of the medical exemption law is obviously to prevent injury to children, but the current NYSDOH regulations substantially limit exemptions to preventing re-injury. Medical exemptions are now only available for children who have already suffered a documented near-death anaphylactic reaction or coma from an earlier vaccine as defined in a list prepared by the federal Advisory Committee on Immunization Practices, an appointed board of mostly federal officials. Exemptions are also available to some severely immunocompromised children who had transplants or are undergoing chemotherapy.

The language of the current law at Public Heath Law Sec. 2164.8 is clear and unequivocal:

“If any physician licensed to practice medicine in this state certifies that such immunization may be detrimental to a child’s health, the requirements of this section shall be inapplicable until such immunization is found no longer to be detrimental to the child’s health.”

Nowhere in the law are third-party physicians, school officials or contractors, or employees of public health departments given the authority to override the judgment of a child’s physician. Over time, the obvious intent and plain meaning of the law has been eroded by practices and policies of the NYSDOH, the NYC Department of Health and Mental Hygiene and New York schools, resulting in great reticence among practicing physicians to issue medical exemptions, and a rate of medical exemptions in New York far lower than national averages.

School personnel who have no medical training, nor are licensed to practice medicine in New York, are allowed to override the medical judgment of licensed New York physicians. At times school personnel use the opinion of physicians retained by districts and schools to override the examining physician’s judgment. This is the only instance, to our knowledge, in the practice of medicine we are aware of where the judgment of an examining physician is superseded by a physician, who without exception, has neither examined the patient, has any history of providing care for the patient, and usually does not review the patient’s full medical records.

There are many instances of school retained physicians who have no specialized overriding the medical judgments of board-certified specialists making decisions within the scope of their specialty.

A growing number of large practices and physicians who are employees are subject to rules prohibiting them from writing any medical exemptions.

Many physicians have refused to sign medical exemptions for fear of retribution from the public health agencies and licensing boards, including time consuming and expensive investigations, the filing of formal complaints, and threats of challenging medical licenses.

Some physicians, when considering these potential challenges, suggested to the parents of patients who were in legitimate need of a medical exemption that they should avail themselves of a religious exemption instead. The repeal of the religious exemption in New York has placed many families in an untenable position where they cannot obtain the medical exemption their child needs for legitimate medical reasons, and they are faced with either allowing the administration of vaccines they have good reason to believe will harm their child, or their child loses the right to attend school.

The situation for medical exemptions became far worse with new regulations guiding medical exemptions issued by NYSDOH in August of 2019.

The defects in medical exemption policy were clearly described in memos written by Assembly Health Chair Richard Gottfried (for A2690 of 2014) and Senate Health Committee Chair Gustavo Rivera (for S477 of 2020), identical bills intended to protect the physicians’ authority to issue medical exemptions:

“This bill reflects the legislative policy – reflected in much recent legislation – that medical decisions by patient and health care practitioner are entitled to respect and deference. A patient’s physician, nurse practitioner or physician assistant is in the best position to decide if a vaccination or vaccinations should not be administered to the patient. Government agencies should defer to these professional judgments.

Though the plain language of the current law does not seem to grant any power to review and override a practitioner’s certification for a medical exemption to immunization, school and health authorities have commonly second-guessed professionals in this area.”

To our knowledge no physician in the State of New York has ever been disciplined for submitting a medical exemption based on false information or for failure to adhere to accepted standards of care.

S7573/A10813 returns medical exemption policy to the clear meaning of the text of the law. Licensed physicians would exercise their best judgment. There will be no review by unqualified school personnel or government agencies.

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