ATT: No Either: 1. this complaint was not filed with exhibits or attachments, or 2. all exhibits/attachments filed with complaint are attached to this copy Case Number: CPF-19-516531 Case File Date: 2/1/19 NOS: other petition  XAVIER BECERRA Attorney General of California JANE ZACK SIMON Supervising Deputy Attorney General LAWRENCE MERCER Deputy Attorney General State Bar NO. 111898 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 510-3488 Fax: (415) 703-5480 E-mail: Larry.mercer@doj.ca.gov Attorneys for Petitioner and Real Party in Interest SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO . DEAN GRAFILO, DIRECTOR, Case No. - DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, PETITION FOR ORDER TO SHOW CAUSE AND FOR ORDER Petitioner, COMPELLING COMPLIANCE WITH INVESTIGATIONAL SUBPOENAS v. Date: Time: RON KENNEDY, M.D., Dept: Judge: Respondent, Trial Date: Action Filed: KIMBERLY KIRCHMEYER, EXECUTIVE DIRECTOR, MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. Petitioner Dean Gralilo, Director of the Department Of Consumer Affairs, State Of California (DCA), by his attorneys Xavier Becerra, Attorney General of the State of California, and Lawrence Mercer, Deputy Attorney General, alleges as follows: 1. Petitioner Dean R. Gra?lo (Petitioner) is the duly appointed Director of the Department of Consumer Affairs. He brings this action solely in his Of?cial capacity as Director. 1 PETITION FOR COMPELLING COMPLIANCE The Department of Consumer Affairs of the State of California is a department within the meaning of Government Code 11180 et seq. Under Government Code 1118] and 1 1182, the Director of the DCA is the head of the Department and has the authority to conduct investigations, issue subpoenas, and take testimony in connection with matters within the jurisdiction of the Department. The Director also has the power to delegate such authority. 3. Real Party in Interest Kimberly Kirchmeyer is the Executive Director of the Medical Board of California (Medical Board) which is a duly constituted government agency within the DCA. The Medical Board is charged with the enforcement of the Medical Practice Act (Business and Professions Code 2000 et seq.) and with investigating complaints from consumers, from other licensees, from healthcare facilities, or from the Board itself, that a physician may be guilty of unprofessional conduct. (Business and Professions Code This proceeding directly affects the interests of the Medical Board because the petition seeks to enforce compliance with two investigational subpoenas issued during an ongoing Medical Board investigation of possible violations of the Medical Practice Act by its licensee Ron Kennedy, MD. (Respondent) 4. The Director of the DCA has delegated to officers of the Medical Board, which is an agency within the DCA, the authority to issue subpoenas under Government Code 11182. 5. Respondent Ron Kennedy, MD. holds a Physician?s and Surgeon?s Certi?cate issued by the Medical Board, which permits him to engage in the practice of medicine. 6. By way of this petition, the Medical Board requests an order compelling Dr. Kennedy to comply with investigational subpoenas for the medical records of two school-aged children for whom he provided vaccination exemptions. As set forth in the Declaration of Supervising Special Investigator Rashya Henderson, ?led herewith, Dr. Kennedy was duly served with the investigational subpoenas, but has objected to production of the subpoenaed records and refused to produce them. As set forth in Ms. Henderson?s declaration and the Declaration of Dean A. Blumberg, M.D., the records sought are relevant and necessary to the investigation of vaccination exemptions issued by respondent Ron Kennedy, MD. 7. On February 17, 2017, the Central Complaint Unit of the Medical Board of California received an online complaint from an Immunization Coordinator with the Sonoma Department of 2 PETITION FOR COMPLIANCE Health Services alleging that ?Ron Kennedy, M.D. wrote inappropriate vaccination exemptions for school-aged children in Sonoma County schools. The complaint stated that school staff members were concerned because Dr. Kennedy is not a pediatrician; rather, he was trained as a and now provides medical services at an ?anti-aging? clinic. An investigation was opened and witnesses were interviewed over the course of2017. The Board learned that .M., a school-aged boy, had been issued a medical exemption from vaccination by Dr. Kennedy, without the knowledge or consent of the boy?s father, A.M. The child?s father advised that the child had no medical condition that would exempt him from required vaccinations, that Dr. Kennedy was not the child?s pediatrician and that the exemption had no basis in fact. A.M. provided a release for his son?s records from Dr. Kennedy, as well as from the child?s pediatric care provider, Kaiser Permanente. 8. On August 17, 2017, the Central Complaint Unit of the Medical Board of California received an online complaint from a school nurse employed by the Fremont School District. The complaint stated that she had received a vaccination exemption for I.L., a school-aged girl entering the 7?h grade. The exemption was written on a ?mass produced form? and issued by Dr. Kennedy, albeit Dr. Kennedy?s Santa Rosa clinic was quite distant from Fremont. The nurse was interviewed and she stated that the student?s school records did not reference any medical indication that would support a vaccine exemption. She stated that the child had a personal belief exemption when she entered Kindergarten in 2009 and, after the passage of SB277, when personal belief exemptions were no longer accepted by schools, her parents produced the medical exemption written by Dr. Kennedy. The Board obtained a copy of the exemption issued by Respondent, which was permanent and applied to all vaccinations. The Board?s investigator requested a medical release for medical records from her parents, but they did not provide the requested release. 9. At the same time that the Board issued subpoenas for the medical records of the three children whose identities were known, subpoenas were issued to 12 school districts where exemptions had been reported for unidenti?ed children. In response, the Board?s investigator received approximately 50 vaccination exemptions written by Dr. Kennedy. With minor 3 PETITION FOR COMPELLING COMPLIANCE variations, these exemptions were all written on a preprinted form and, for the most part, provided permanent exemptions to all vaccinations for each child. 10. The Board served investigational subpoenas for the records of .M., S.M. and IL. on Dr. Kennedy, but he has refused to comply with the subpoenas. 1. An expert in pediatrics and pediatric infectious diseases, Dean A. Blumberg, M.D., has reviewed the information obtained by the Board?s investigation. He reviewed the exemptions issued to J.M., S.M. and LL, as well as approximately 50 other students, the pediatric medical records for J.M. and S.M. and the information provided by A.M., the father of J.M. and S.M. Based on his review, Dr. Blumberg has opined that the exemptions issued by Dr. Kennedy appeared to have been issued without an appropriate evaluation and valid medical indication for exempting the school-aged children from required exemptions. He advised that there is no component common to all required vaccines and that a medical condition that applied to all vaccines would be medically improbable. Dr. Blumberg also advised that the conditions stated as reasons for exemptions from required vaccinations were for the most part unsupported by medical science and, further, that even those conditions that might provide a temporary reason for delaying a single vaccine, none provided a valid reason for permanent exemptions from all vaccinations. The expert stated that the standard of care wOuld require documentation of the evaluation and medical indication for the exemptions and respondent?s medical records are necessary to determine whether the exemptions issued by respondent are supported by a valid medical indication. 12. Pursuant to Government Code 11186 venue lies in the County of San Francisco, where the investigation was directed by the Of?ce of the Attorney General, and pursuant to ?1 1188 this Court has the authority to issue an Order to Show Cause why Respondent should not be ordered to comply with the investigational subpoenas for the records of .M., S.M. and LL. that were served upon him. 13. This petition is brought by Dean Gra?lo in his official capacity as the Director of the Department of Consumer Affairs and is deemed verified as a matter of law. (Code Civ. Pro. ?446) 4 PETITION FOR COMPELLING COMPLIANCE January 30, 2019, at 3:25 pm, counsel for the Respondent was given notice of the ex parte application for an Order to Show Cause. Dated: February 1, 2019 SF2018201909 2 I 334396.docx Respectfully Submitted, XAVIER BECERRA Attorney General of California JANE ZACK SIMON Supervising Deputy Attorney General LA MERCER Deputy Attorney General Attorneys for Petitioner and Real Party in Interest 5 PETITION FOR COMPELLING COMPLIANCE