Wednesday, November 6, 2013

The New California Personal Belief Exemption Form Unveiled

The anti-vaccine movement is a study in contradictions. They want fewer vaccines, but advocate for actions that ensure vaccines that could be taken off the schedule aren't. They want studies done, and even get involved in their design, but then reject them when the studies produce results they don't like. And they clamor for informed consent, but then raise a stink when efforts are made at improving education and helping parents make informed choices.

That was the case last year when, in March 2012, a bill was introduced in California (AB2109) that would require parents who want to opt out of required school immunizations for their children to get information about the "benefits and risks of the immunization and the health risks of the communicable diseases listed in Section 120335 to the person and to the community" from an authorized health care provider (which was rather broadly defined). These efforts at ensuring parents make informed choices were so objectionable, that anti-vaccine pro-informed choice activists vehemently opposed the bill. Yes, in the twisted world of people like NVIC's Barbara Loe Fisher, a doctor largely responsible for a measles outbreak or certain reality-challenged celebrities, a bill that requires parents be informed tramples on parents' rights to be informed. Yeah, I don't get it either, but supposedly it makes sense to them.

At any rate, AB2109 was signed into law by Gov. Jerry Brown on September 30, 2012, but with a catch. As I wrote at the time, Gov. Brown issued a signing statement with it, stating that he would direct the Department of Public Health to allow for religious exemptions to the whole getting informed piece of the legislation, despite the fact that California does not have any religious exemptions to vaccinations. As I noted at the time, there were significant problems with this, both legal and practical.

Well, the California Department of Public Health has announced the new form and made it available here (PDF).

There's not a whole lot to the form. It's one page with minimal fields to be completed. It has a statement for the health care practitioner to attest to, namely that they provided information to the parent/guardian or the emancipated child of the benefits and risks of vaccination and the risks to the child and community from the diseases prevented by the vaccines. There's a similar statement for the parent/guardian to attest to, agreeing that they received that information. And finally, there are checkboxes for each of the vaccines for which the parent/guardian is requesting exemption.

Oh yeah, then there's that religious exemption. If a parent doesn't want to go through the hassle of talking to a health care practitioner and getting their signature, all they have to do is check off a box:

Click to enlarge

The text reads:
I am a member of a religion which prohibits me from seeking medical advice or treatment from authorized health care practitioners.
I'm not certain who came up with that language (working on finding out), but it does create some rather...interesting issues. As I mentioned before, the addition of the religious belief exemption goes beyond the scope of the law, which does not set religious beliefs out separately from other personal beliefs. This raises First Amendment questions, as well as other head-scratchers of a more practical legal nature.

Like I said, the inclusion of this statement grants special privileges to individuals who are members of a particular religion, namely, these people do not need to talk to an authorized health care practitioner in order to get an exemption. If you are a person that does not hold any religious beliefs, well, you don't get that free pass that the religious types do. By adding this statement, the California state government is elevating some religious beliefs over others (e.g., lack of religious beliefs). They are opening themselves up for a First Amendment rights law suit, costing the state not insignificant amounts of money and likely leading to the same result as if they had ignored the governor's signing statement and not included the religious exemption in the first place.

But First Amendment issues aside, there are still other possible problems with the statement. The first is that from the viewpoint of state law, if a parent checks that box and does not get an authorized health care practitioner to sign and attest to providing information, their claim for an exemption could be denied. You see, the law requires that the form have a:
signed attestation from the health care practitioner that indicates that the health care practitioner provided the parent or guardian of the person who is subject to the immunization requirements of this chapter, the adult who has assumed responsibility for the care and custody of the person, or the person if an emancipated minor, with information regarding the benefits and risks of the immunization and the health risks of the communicable diseases listed in Section 120335 to the person and to the community. This attestation shall be signed not more than six months prior to the date when the person first becomes subject to the immunization requirement for which exemption is being sought.
The law does not allow for a parent to opt out of getting this signed attestation based on religious grounds. A school or state agency could be well within its rights under the law to deny the personal belief exemption because it was not signed by a practitioner. The parent could sue, claiming that the form led them to believe a signature was not required (since it states that a signature from a health care practitioner is not required if the box is checked). Whether or not they would prevail, I'm not sure. On the one hand, they'd be right (and the CDPH web site's FAQ on the form doesn't help). On the other hand, the school or agency is also right. They followed the law.

Again, let's set aside the problems so far. The wording of the religious exemption actually addresses on the problems I raised before when I talked about Gov. Brown's signing statement. The implication in his signing statement was that simply talking to a health care provider would somehow impinge on a person's rights to refuse vaccination on religious grounds:
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.
At the very least, he says that those rejecting on religious grounds don't need to learn about the risks involved. Like I mentioned at the time, this doesn't make any sense. The conversation (or even simply providing written information) neither forces a parent to go against their religious belief and immunize their child nor prevents them from exercising their religious beliefs by declining immunization.

In light of this bit of nonsense, the wording on the form actually sort of makes sense. The CDPH followed Gov. Brown's directions, but in a way that makes a lot more sense. The only reason to not get the signature of a health care practitioner for religious reasons is if it is talking to the practitioner themselves which is religiously objectionable.

But (surprise! surprise!), I still see problems with it. Suppose that a parent checks of that box. They are stating on a government form that their religious beliefs preclude them from seeking medical advice or treatment from an authorized health care provider. Think about that, for a moment. It's not limited to just vaccines. The parent is saying they cannot get any medical advice or treatment from an authorize health care practitioner. What happens if Timmy needs a doctor's note to be excused from school or participation in some school activity (e.g., gym)? Will a note from some unauthorized health care practitioner (i.e., quack) be accepted, or will the parent have to "go against their religious beliefs" and see an authorized health care practitioner? Or perhaps Timmy gets sick or injured. What if he breaks a bone and requires medical attention to ensure it is set correctly? Do the parents do it themselves, or do they take Timmy down to the local health center for treatment, against their professed religious beliefs? And in any of these situations, if the parent goes to an authorized health care practitioner for medical advice or treatment for the child, does that mean that the form is invalidated, since they have demonstrated that they can and will go to a provider despite stating religious objections to the contrary?

The checkbox is an easy way out of the new requirements that a parent get informed before they can get an exemption. The entire point of the law was to make sure that parents couldn't simply check off a box to get out of vaccination. It was in response to California's problem with high levels of personal belief exemptions that were mostly due to parents either being lazy about their children's immunizations. But with that statement, parents can do just that. So one big question I have is, if they check off that box, and then demonstrate that they lied (e.g., by getting medical advice or treatment for themselves or their children), what are the consequences? Are there penalties for lying on a government form (and believe me, some anti-vaccinationists will lie)?

And one last problem: by allowing a parent to opt out of seeing an authorized health care practitioner to complete the form because their religious beliefs don't allow them to go to a practitioner for medical advice or treatment, is the state saying it's okay for a parent to eschew medical treatment for their child due to religious beliefs? Are they accepting that it's okay, for example, to not take their diabetic child to get treated with insulin because religious beliefs preclude it? Or that a parent can claim religious beliefs as a sufficient reason to reject cancer treatment?

In the end, the religious belief exemption statement does not belong on the form. It goes beyond the scope of the law and raises a mess of issues and potential problems for schools, parents and the state. The CDPH is not required to follow Gov. Brown's signing statement. They only need to follow what the law states, so I would urge them to remove the religious belief exemption checkbox and text from the new form. For those of you who live in California, feel free to contact CDPH and/or Gov. Brown's office to discuss the new form.

2 comments:

  1. The other problem is that by saying "I'm a member of a religion" before the criteria, the form implies that you need to be a member of an organized religion. All but one state court ruled that that's unconstitutional: you can't prefer organized religion over other religious beliefs.
    Thanks for this great coverage.

    ReplyDelete
  2. Thanks for this write-up Todd; the new exemptions sure do open a weird can of worms doesn't it? In any event, it will be interesting to see what happens in practice.

    ReplyDelete

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