Reform of New York’s medical exemption policy is desperately needed. But giving more authority to NYSDOH is the last thing we need. New York should honor the plain intent of current law and allow physicians to issue medical exemptions for their patients who need them without interference from NYSDOH.
According to the letter of New York law, all physicians have the authority to grant a medical exemption. The law is explicit, New York Public Health Law Sec. 2164, Paragraph 8, says, “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.”
The law clearly gives the decision-making responsibility to the child’s physician, not Department of Health employees, not school principals, not a consulting physician working for a school district who has never examined the patient concerned, the child’s physician is supposed to make the decision. But that is not how the real-world works.
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Today, if you can find a physician brave enough to incur the wrath of the NYSDOH and write a medical exemption, the school principal is allowed to reject the exemption. Nothing in New York law or regulation gives the principals that authority, but the NYSDOH behaves as if they do.
Principals are also allowed to defer to the opinion of NYSDOH Staff. NYSDOH, however, are bound by the regulations and policies of the Department, not the best health interests of the child. Since August 2019 NYSDOH has enforced a regulation, 10 NYCRR 66.1, that requires the use of policies set by the Advisory Committee on Immunization Practices (ACIP). The ACIP is a federal committee comprised of vaccine industry insiders, federal vaccine bureaucrats, and favored NGOs that create much of federal policy.
The 2019 regulation included a new definition of what “detrimental” means, (l) May be detrimental to the child’s health means that a physician has determined that a child has a medical contraindication or precaution to a specific immunization consistent with ACIP guidance or other nationally recognized evidence-based standard of care.
The ACIP guidance required by 10 NYCRR 66.1 uses an extremely narrow range of symptoms to determine if a vaccine is contraindicated. For most vaccines the only standard offered by the ACIP is “Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a vaccine component.”
The NYSDOH now demands evidence that a child has already been severely injured by a vaccine before they will consider an exemption, which completely subverts the intention of the law which is to protect a child from possible harm. The standard enforced by NYSDOH, at best, might protect a child who has already been harmed by a vaccine from re-injury, a much narrower application not at all consistent with the letter of the law which is to prevent injury in the first place.
The regulation itself also allows for the use of other “nationally recognized evidence-based standard of care” in addition to the ACIP guidance. In practice, NYSDOH will not consider these standards, including adverse reactions acknowledged by the vaccine manufacturers and included on the package insert, adverse events compensated by the federal National Childhood Vaccine Injury Compensation Program (the “vaccine court”), and vaccine injuries identified by the National Academy of Medicine. Nor will the NYSDOH consider the hundreds of injuries identified by nationally recognized institutions for which there is insufficient evidence to rule them out as vaccine induced.
NYSDOH has a well-documented history of putting slavish adherence to their policies above the well-being of a specific child. They have compelled children to received additional doses of a vaccine that NYSDOH acknowledge had harmed the child in the past, but not sufficiently harmed to warrant a medical exemption. NYSDOH has required children to receive vaccines that they acknowledge had been responsible for the death of the child’s older sibling. These are the decisions of an agency that puts its own policy goals ahead of the health of individual children.
Principals can refer the medical exemption to a consulting physician who is allowed to override the judgment of the treating physician. The consulting physician is not required to examine the child in question, and the consultant can be any type of licensed physician. Frequently, consulting physicians with no training in the relevant area of medicine override the decisions of experts, sometimes experts with international reputations. Doctors of sports medicine veto decisions by immunologists. Pediatricians override endocrinologists. Some principals even allow school nurses to override the physician’s exemption.
Current NYSDOH practice places educators in a position to make medical decisions that they are clearly not qualified to make. The practice raises questions if NYSDOH is compelling educators to practice medicine without a license which is a Class E Felony.
NYSDOH plays an intimidation game with both schools and physicians by simultaneously claiming that the decision to write the exemption is up to the physician, and accepting the exemption is up to the principal, will threatening both physician and principal with severe consequences for both if they make the wrong decision. Educators are told they could be fined for having a non-compliant student enrolled. Physicians are well-aware that writing a medical exemption immediately identifies them as a target to watch by the NYSDOH, and places them at risk for investigation, and potential challenge to their medical license.
Right now, NYSDOH does not have control by law over who gets a medical exemption, but they do have de facto control. Zebrowski’s bill would give them complete control.
The result is it is almost impossible to find a physician in New York who will write a medical exemption. So it should be no surprise that New York has the lowest rate of medical exemptions of any state, .1% of all students, according to the Centers for Disease Control and Prevention. New York City is even lower at about .05%. These rates are 50% and 25% respectively of the national average of .2% of students with medical exemptions. The rate of medical exemptions in New York has dropped by 50% since 2016, fueled by an exodus of medically fragile students out of the school system and into homeschooling, or out of the state all together.
The underlying problem this bill is designed to address is that the New York State Department of Health physicians does not trust physicians to put implementing state policy above the individual health needs of their patients. These highly individualized and complex decisions should not be left to employees of the Department of Health. At the very least, the Department of Health does not have a cadre of physicians competent to make these decisions. Unlike state agencies, physicians have an ethical and legal responsibility to put the health of their individual patients first. State agencies would have no responsibility to put the health of the patient first, their mission is to enforce the policies of the Department of Health, which as we have seen is to vaccinate as many children as possible regardless of the possible injuries that could result.
One of the reasons used to justify vaccine mandates and the elimination of religious exemptions in New York is that some people cannot tolerate vaccines and are susceptible to infection from vaccine-preventable disorders. Therefore, everyone must get vaccines to protect those who should not get shots. At the same time the people who make this argument have also set up a system that makes protecting medically fragile children nearly impossible.
The last thing the medically fragile children of New York need is giving NYSDOH any more authority over the medical exemption process.
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