SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Sep-18-2018 10:58 am Case Number: Filing Date: Sep-18-2018 10:57 Filed by: ROSSALY DELAVEGA Image: 06499858 DECLARATION OF IN RE: DEAN GRAFILO 001C06499858 Instructions: . Please place this sheet on top of the document to be scanned. 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 Email: 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 R. GRAFILO, DIRECTOR OF THE DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, Petitioner, KAISER MAMMOTH UNIFIED SCHOOL DISTRICT, Respondent. MEDICAL BOARD OF CALIFORNIA, Real Party in Interest. an-18j516346 DECLARATION OF SUPERVISING SPECIAL INVESTIGATOR RASHYA HENDERSON Case No. Date: Time: Dept: Judge: Trial Date: Action Filed: I, RASHYA HENDERSON, declare that the following matters are true and correct: 1. I am employed by the Medical Board Of California (Board) as a Supervising Special Investigator in the Complaint Investigation Of?ce, which investigates complaints received by the DECLARATION OF RASHYA HENDERSON Board and obtains the evidence necessary to determine whether physicians are violating the Medical Practice Act and related laws relating to the practice of medicine. 2. In 2017, the Board began receiving complaints that school-aged children were obtaining vaccination exemptions based upon medical conditions that did not appear to be valid. 3. On June 26, 2017, the Board received an email complaint from the Assistant Chief of Pediatrics at Kaiser, Roseville, reporting that a Kaiser patient was given an inappropriate vaccine exemption letter by Dr. Kenneth? Stoller. On February 5, 2018, I contacted the Kaiser physician and requested a copy of the vaccination exemption letter referred to in the complaint. In response, I was provided with a copy of the letter, with the patient?s name redacted. On February 12, 2018, I served an investigative subpoena on Kaiser Permanente/TPMG (Kaiser), requesting an unredacted copy of the exemption letter, as well as the identities of any other children with vaccine exemptions from Dr. Stoller on ?le with Kaiser Roseville. On March 1, 2018, Kaiser legal counsel refused to provide the requested letter without a parental medical release. 4. On September 21, 2017, the Board received an online complaint from the Mammoth Uni?ed School District (School District), reporting that Dr. Stoller had written vaccine exemption letters for several students. The complaint stated: ?This physician is not a local Pediatrician and our local Pediatrician group deemed that these children did not qualify for an exemption.? On November 9, 2017, the school district provided seven exemption letters, with the names of the children redacted. On January 11, 2018, I served an investigational subpoena on the school district for unredacted copies of the exemption letters, as well as the identities of any other children with exemption letters from Dr. Stoller. On February 5, 2018, an attorney for ?multiple families? presented objections to the production of the records. By letter dated February 6, 2018, the school district declined to produce the requested records. DECLARATION OF RASHYA HENDERSON follow up contacts with the school district, I have been informed that the students? exemptions have been renewed, but that the school district will not provide those records as the exemptions include a statement that disclosure by the school district will be met with legal action. 6. On October 29, 2017, the Board received an online complaint from the noncustodial parent of a child who had been provided with a vaccination exemption letter from Dr. Stoller. On November 8, 2017, the Board obtained a copy of the exemption letter and an Adverse Event Risk Assessment Report prepared by Dr. Stoller. On February 9, 2018, a request for a medical release was sent to the child?s custodial parent and she was asked to authorize the release of Dr. Stoller?s records to the Board. On February 22, 2018, I received a letter from the attorney for the custodial parent stating that the parent would not release the records and also instructing the Windsor School District not to produce any records for the child in its possession. 7. On August 31, 2018, a set of interrogatories was served upon Dr. Stoller pursuant to Government Code ?11182. The interrogatories sought the names and addresses of Kaiser and School District children to whom Dr. Stoller had issued vaccination exemptions. On September 13, 2018, ?led objections and refused to provide the requested information. 8. Attached to this declaration are true copies of the following documents, which have been redacted to protect any personal identifying information relating to the individuals: A. Exemption letters for nine patients; B. Investigative subpoenas for records of Mammoth Uni?ed School District and Kaiser Permanente/TPMG; C. Responses to subpoenas. Executed under penalty of perjury at Sacramento, California on September 2018. AM RASHYA 3 DECLARATION OF RASHYA HENDERSON Exhibit A Exemption Letters - auno-uc-uu Han: rculuu?w/Iuen - tax Y'Ibddel?t'i it! Stolier, MD, FACHM Medicine . . I Hync'bdnc ?rmer .m n" Hun an; mum :?thrt, Ncurcmmurmn {59-3 H'natiwuc walnut-L1 ?41-17.; 415 565 .ihOt? 6/14/17 To Whom ItMny Concern. A . m. Following dctaiicd risk assessment. vaccination is not C?nSidmd safe duc to speci?c genetics. Given these issues. I certify that vaccines otherwisc required for admission to school. (including but not limited to the MMR. Polio. Dtap. HepB and Varicclla) in?Califot-nia is n01 considered safc and this is permanent. I understand that. for the protection of the child and other students. the child may be excluded from attending school for ?proiongcd periods during outbreaks or exposure to disease for which immunization has not been .I have detailed this in an Risk Assassin-tum Report that is in the possession ofthc abqvc stud ?3 parents.. . MRN DOB: Dept: GAR-D Prov THAO XUANJM Date: 5115312017 Prov TO THE SCHOOL This documcnt 15 it private and con?dential tccord at the named above. This document in ?om disclosurc by npp?cablc L1u-s.inciudmg but am to the ?with lnsumncr Portability- and Accountability Act (HXPPA) and the Family Educational Rights and Pn'vacy Act (FERPA). Furtht'r. pursuant to Cat]. Health 3: Safety Code section 120-14? and rather prittuiq? law-s. this child?s guardihnm docs not consent to outside sharing or 3rd pun}- sharing of the child's vaccinamm m- rcc?ord. .Farnily Educational Rights and Privacy Act (FERPA) - Prevents disclosure of idcnti?nblc infant-12th:: in a student?s education rccord without the consent of a parent or eligible Student {aged 18 or older) unless an to law's gun?rai consent requirement applies (1h: GOVctmor signs a mcdicai emergency order). The content of this medical exemption has been reviewed by legal counsel for meeting the . requirements set forth by 53 27? and the law based on same. A letter con?rming this is available upon iequest. 0'7. parcm of the above-married student hereby refuag to allow any One or agency to have access to this exemption under penalty of law. do 991 consent to a?ow this axe-ntptiqn to be shared under any circumstanm. 23 .c 3' Oxygen Clinic 0f San Francisco in assod?tion with the AZZDUW Neumlogy?mup -.- 152:5 Bro??W?v 1A, San Fran?isco, CA 94109 415 563-3860 439/1 6 To Whom It. May Cbncern, has genetic iSsues that make receiving vaccineg- i?appmp??fe' Given these issues. I?beiieve she is at high risk of?advarsn wants to vaccinaticn sjo vaccinations 31?? 11?13 consider?d safe'for this child. I hem ?etai?iec?i this in- ?n .Aaverse-Risk Assessm?nt Report than is in the pons'ession ofthe nbeve student?s pan-ems. This medicai examption to all vab?in?s is permanent. - NOTICE TO THE SCHOOL Family Educational Rights and P?vacy Act (PERM) Prevents the 1518610821118 of. persnnally iden??a?hl? (P1331: a student?s ectucation record withnut the consent o?a parent or eligibie smdant (aged 18.9: older) uniess an exception to the law's general consent . requirement applies. A snzdem?? heatth. retards, including immunizatinn infom?tion and other rec?rds mintained by a; school nurse. are considered part ofthe student?s aducatinn record and are protected from disclosure under FERPA manycme- or entity outside the school withaut parental eminent including ??smeport unless PH oftheachild has been re?acted. 'Chiefanynei?b?fin Medians- ?an?hm" lWlm?W" In? -I- @535 g, ii? {ii 335%. . . u-w? - a. . ?in 53;; . ?r 4, .4 3.9. - 54.?va I ii 3 4p. ?at?W 339% - 1- 9; 1.99.17 :14: n. .. 1 1 ui??f ?k is .i . 1 ?Ur Id. in! .33; a .533? Mai-T lira. 5; :1 fr?? up?. I.- -M mix 1? 313? 2w 5 b- 2.3? a_ s? ?x (353' - 4. L535 ??le .11. .1: 23: "if? . '3 g1?: - . . 1.1.7 . rz?uvuzt a. manvmw .l .. 2 ?Mw??pnur $9341; Mm . a A 3-. . 13:5- EC. i? - Ea?? 5?3 . ft. 515" :51? 1 . 33%" $11? ?1 3? . gn?y?p - Exhibit Subpoenas Duces Tecum '28 BEFORE 11:11:; CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Investigation of: 3 . ESTIGATIONAL SUBPOENA Kenneth Paul Stoller, M.D. INV DUCES TECUM TO PRODUCE Case Number 800?2017-03421 8 . - PAPERS AND DOCUMENTS To: Kaiser Permanente- i TPMG ?Legal Government Affairs I 1950 Franklin Street, '17th Floor 3 Oakland, California 94612 Attn: Zennie Coughlin . 1 Pursuant to the powers conferred upon the Eirector of the Department of Consumer Affairs (DCA) of the State of California as head of the DCA by Sections 11180 through 11191 of the Government Code of California, which powers have been delegated by the said Director under Section 7 of the Government Code to Staff Services Manager II, Paulette Romero of the Medical Board of California, a health oversight agency. YOU ARE HEREBY COMMANDED to appear before Supervising Special Investigator (SSI) Rashya Henderson and/or any other duly authorized representative(s) of the Medical Board of . California Enforcement Program staff, at 1855 Gateway Boulevard Suite 320 Concord California 94520 on the 5th day of March, 2018 --at the hour of 1:00 p.1n.- then and there to testify and to answer questions propounded to you in connection with the above titled investigation and to bring with you, and there produce, any and all writings as de?ned by Evidence Code Section 250, including but not limited to, all the papers, books, accounts, documents and records described 1n the attached list, regardless of the form which they are k,ept and including all electronic or computer forms of - records (Rev. 01/12) Investigational Subpoena huees Tecum 21.. 22 23 24 25 26 .2'7 28 or purposes of this subpoena, all references to records and documentation include, but are not limited to, production of minutes, notes, electronic communications, audio and video recordings, reports, ?ndings, recommendations or evaluations,?taken during any forniai or informal conferences, discussidns or meetings. For failure to comply with the commands of this subpoena, you will be liable to the proceedings and penalties provided by law. NOTICE: If you con?rm with SSI Henderson that the specific papers and documents commanded' 111- this subpoena duces tecum have been, or will be, delivered or otherwise produced to SSI Henderson at 2005 Evergreen Street, Suite 1200, Sacramento, California 958151 My; the time of your appearance, then you DO NOT need to, appear. If the records produced are not certi?ed, you must personally appear on the date, time and location indicated on the preceding page. If ydu have any questions, contact 881 Henderson at (916) 263-2563 or Rashya.Hendreson@mbc.ca.gov. Given under my had this 113? day a, an! 2018. Paulette Romero Staff Services Manager II Deparment. Medical Boardlof California Enforcement Program ENF-67 (Rev.01l12)' Investigational Subpoena 'Duces Tecum 2 cFOR AGENCY RECORDS Regarding medical vaccination eXernptions written by Kenneth Paul Stoller, MD. submitted to Kaiser Permanente Roseville Pediatrics. This includes, but is not limited to: 1. Unredacted copy of medical vaccination exemption letters received by Kaiser Permanente Roseville Pediatrics from Dr. Steller; 2. Name and date of birth of all children with medical vaccination exemptions from Dr. I Stoller; . 3. Name of parent and/or legal guardian of any and all ?children with medical vaccination . exemption on ?le with Kaiser Permanente Roseville Pediatrics from Dr. Stoller; 4. Contact information (to include physical address, telephone number, and, if possible, 6- mail address) of parent and/or legal guardian -of any and all children with medical vaccination exemption on ?le with Kaiser Permanente Roseville Pediatrics from Dr. Stolleri (Rev. 06/09} c: ~3 BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the matter of the Investigation of: ?ennetb Paul Stellar, Ml). Case Number 800~2017~034218 NOTICE AND . ACKNOWLEDGEMENT OF INVESTIGATIONAL SUBPOENA To: Kaiser Pennaneme '.Legal Government Arm 1950 Franklin Street: 17"! F100: Oakland, Cab-few 94512 Arm: Zennie Coughlin NOTICE - This Investigations} Subpoena Duces Tectmi is served pms?uant to California Government Code 1184 arid Code ofCivil Procedure ?415 30. Failure to eempiete this few and return it to the sender Wimin 20 days may subject you (or the party 01: whose behalf you are being served.) 10 for the payment of any expenses incurred 1n serving a subpoena upon you in any other manner permitted by law If you are sbrved on beha?? of a corporatien unincorporated asseeistion (including a partbershIp) or other entity, this form must be signed in the name of such entity by you or by a. person authorized to receive service of process on behalf of such entity I11 all titli?f cases, 1111's form m?Ef be: EignEd ?33: yes. persenally by a person aurherized by you 10 acknowledge receipt (11?s. subpoena. Section 415 30 provides that . this subpoena IS deemed sbrved on the date 01? execution of an aclmowledgment of rece1pt of . 0F RECEIPT This acknowledges receipt 011 {w . 20 {a of a copy of the Signature of Sender: mvestiga?onalsu boena. 11%? Zak/1M, Pavel/11m Signature Printed Name ENF-23A (Rev. 7/16} ?THE DEPARTMENT OF CONSUMER AFFAIRS . 1 STATE OF CALIFORNIA In the Matter of theInvestigation of: Kenneth Paul Stoller M.D. 1? SUBPOENA . DUCES TECUM TO PRODUCE Case Number 800-2017036951 . . . PAPERS AND DOCUMENTS To: Mammoth Uni?ed School District PO Box 3509 Mammoth Lakes, California 93546 3 Attn: Lois Klein, Superintendent _Pursuant to the powers conferred upon the Director of the Department of Consumer Affairs (DOA) of the State of California as head of the DCA by Sections 11180 through 11191 of the Government Code of California, which powers have been delegated by the said Director under Section 7 of the Government Code to Staff Services Manager II, Paulette Romero of the Medical Board of California, a? health oversight agency. . YOU ARE HEREBY COMMANDED to appear before Supervising Special Investigator (SSI) Rashya Henderson and/or any other duly authorized representative(s) of the Medical Board of California Enforcement Program staff, at 1735 Technologv Drive, Suite 800 San Jose, California 95110 on the 5th day of February. 2018 at the hour of 10: 00 a. m? then and there to testify and to answer questions propounded to you in connection with the above titled investigation and to bring with you, and there produce, any and all writings as de?ned by Evidence Code Section 250, including but not limited to, all the papers, books, accounts, documents and records described 1n the attached list, regardless of the form In which they are kept, and including all electronic or computer forms of records. (Rev.01l]2) Investigational Subpoena Duces Tecum 1 10 11 12 1'3 14 15proceedings and penalties proyided by law._ to SSI Henderson at 2005 Evergreen Street Suite 1200 Sacramento. California 95815!) More the time of your appearance, then you DO NOT need to app ear. If the records produced are not page. Rashya.Hendrescn@mbc.caieov. (Renown) Investigational Subpoena Duces Tecum - 2 . For purposes of this subpoena, all references to records and documentation include, but are not limited to, production of minutes, notes, electronic communications, audio and video recordings reports, ?ndings, recommendations or evaluations, taken during any formal or informal conferences, discussions or meetings For failure to comply with the ?commands of this subpoena, you will be liable to the NOTICE: If you Confirm with SSI Henderson that the speci?c papers and documents commanded in this subpoena duces tecum have been, or {will be, delivel ed or otherwise produced certified, you must personally appear on the date, time and location indicated on the preceding If you have any questions, contact SSI Henderson at (916) 263?2563 or 2 Given under?myhand this I day of, ,lanuag% 2018. ?pay/n ?tsa?n Houston Staff Services Manager II Department of Consumer Affairs Medical Board of California Enforcement Program SUBPOENA FOR AGENCY RECORDS Regarding medical vaccination exemptions written by Kenneth Paul Stoller, MD. for children enrolled at Mammoth Uni?ed School District. This includes, but is not limited to: 1. Unredacted copy of medical vaccination exemption letters received by your school district from Dr. Stoller; . Name. and date of birth of all children with medical vaccination exemptions from Dr. Stoller; Name of parent and/or legal guardian of all child with medical vaccination. exemption on ?le with your school district from Dr. Stoller; Contact information (to include physical address, telephone number, and if possible, e- mail address) of parent and! or legal guardian of child with medical vaccination exemption on ?le with your school district from Dr. Stoller. (Rev. 06l09) .2the matter of the Investigation of: Kenneth Paul Stoller M.D. Case Number 300-201 7-03 6951 To: Mammoth Uni?ed School District BEFORE THE MEDICAL BOARD OF CALIFORNIA DEPARTMENT OF CONSUNIER AFFAIRS STATE OF CALIFORNIA NOTICE AND ACKNOWLEDGEMENT 0F INVESTIGATIONAL SUBPOENA PO Box 3509 Mammoth Lakes, California 93546 Attn: Lois Klein, Superintendent NOTICE This Investigational? Subpoena Duces Tecum is, served pursuant to California Government Code ?11184 and Code of Civil Procedure ?415.30. Failure to complete this-- form and return it to the sender within 20 days may subject you (or the party on Whose behalf you are being served) to liability for the payment of any expenses incurred in serving a subpoena upon you in any other manner permitted by law. If you are served on behalf of a corporation, unincorporated association (including a partnership) or other entity, this form must be signed in the name of such entity by you or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of a subpoena. Section 415.30 provides that this subpoena is deemed served on the date of execution of an - acknowledgment of receipthsubp ena. Signature of Sender Dated: i i 2 OF RECEIPT This acknowledges receipt on [a i . 2018 of a copy of the subpoena. 1 Miss Signature Printed Name (Rev. ms) Exhibit Subpoena Responses The Permance Medical Group, Inc. . i - TPMG Legal Govemme of Affairs 1800 Harrison Street, Suite 2350 . Gary S. Dulberg Oakland, CA 94612?2998 Assistant General Counsel Tel 510-6254473 Fax 510?625?7008 . Of?ce: (510) 625-4727 March 1, 2018 1 THE MEDICAL BOARD OF CALIFORNIA 2005 EVERGREEN STREET, SUITE 1200 SACRAMENTO, CA 95815 RE: Kenneth-Stellar, case 800-20i7-034218 Dear Rashya Henderson: The Permanente Medical Group (TPMG) is .inreceipt of the subpoena you forwarded to ?Kaiser Permanente? regarding Dr. Kenneth Stollcr, case 800-2017?034218. Please direct all future inquiries regarding this matter to my attention.? While TPMG understands the concern underlying the investigation of Dr. Stoller, TPMG is unable . to provide any records in reSponse to the subpoena for two reasons. First, any possible vaccination ekemption letters written by Dr. Stoller are not stored in cur-data systems in a manner that can be identi?ed withoutan unduly burdensome search of our records. Second, even if we could identify such records without an undue burden, we are unable to release such records Without the consent of those patients and! or ?their legal guardians Please contact me if you have any questions about his matter. Sincerely, Gary S. Dulberg I Assis 1: General Counsel Fagen Friedman Fulfrost LLP- 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 Main: 323-330-6300 Matthew Vance Fax: 323-330-6311 Direct Dial: (323) 330?6836 mvance@f3law.com February 6, 2018 Via U.S. Mail and Email (greg@gregglaser.com; rashya.henderson@rnbc.ca. gov) Greg Glaser Rashya Henderson, Special Investigator Attorney at Law . California Department of Consumer Affairs PO. Box 423 1735 Technology Drive, Suite 800 Copperopolis, California 95228 7 San Jose, California 95110 Re: Investigational Subpoena Duces Tecum, Mammoth Uni?ed School District; In the Matter of the Investigation of Kenneth Paul Stellar, D., Case Number 800-2017-036951 To Whom it May Concern: Our of?ce represents the Mamr'noth Uni?ed School District ("District"). This letter regards the above- referenced Investigational Subpoena Duces Tecum ("Subpoena"), dated January 11, 2018, enclosed herein. This letter follows my February 2 and 5, 2018, phone conversations with Mr. Glaser, and my February 2, 2018, voice message to Ms. Henderson, regarding the Subpoena, and the District's receipt of . Mr. Glaser's written objections to the production of students' records in response to the Subpoena. The District received written objections on behalf of six (6) students and their families. Based on the District's receipt of these written objections to the Subpoena, the District will not produce these students' records at this time. (Code of Civ. Proc; These students' records are the only responsive records to the Subpoena. The written objections are enclosed for reference. If the above information does not accurately re?ect your of?ce?s understanding of the Subpoena and the written objections received by the District in response thereto, please contact our of?ce. Sincerely, Enclosures:- Med Board Investigational'Subpoena Duces Tecum Greg Glaser Written-Objections cc: Lois Klein, District Superintendent (via email at lklein@mammethusd.org) FRESNO INLAND EMPIRE - LOS ANGELES OAKLAND SACRAMENTO - SAN DIEGO (13? Recycled Cert no. P.O. Box 423 . (925) 642-6651 Copperopolis, CA 95228 greg@gregg1aser.com February 2, 2018 VIA EMAIL ONLY Lois Klein, Superintendent Uni?ed School District PO Box 3509 . Mammoth Lakes, California 93546 lklein@mammothusd.org Rashya Henderson, Special Investigator California Department of Consumer Affairs 2005 Evergreen Street, Suite 2200 Sacramento, California 9581 5 rashya.henderson@mbc.ca. gov Re: Case No. 800-201 7-03695] (Stellar) Ms. Klein and Ms. Henderson, This letter will supersede my letterto you dated January 26, 2018. I have now been contacted by multiple families who have received Ms. Klein?s letter in relation to the subpoena duces tecum from California Department of Consumer Affairs requesting . production of con?dential records on February 5, 2018 (?Subpoena?). I now see clearly that the DCA is engaged in an unspeci?c, highly unlawful ?shing expedition. I have not yet obtained discovery of your ?les, but such illegal investigation appears to have originated with the school?s unlawful sharing of con?dential student information. Thus, the school and DCA appear to be currently breaking Federal law. DCA, please con?rm that you will withdraw your unlawful subpoena immediately and purge from your ?les the con?dential student information that you received unlawfully in violation of the Federal and State privacy laws detailed in this letter. For privacy reasons under both Federal law and California law, my clients are hereby objecting to the Subpoena. My clients do not consent to any attempt by the State to subpoena the private and con?dential records of their children or their family?s contact information. As detailed in this letter, medical and educational records are private and con?dential under multiple privacy laws, including but not limited to HIPAA, FERPA, and Cal. Health and Safety Code section 120440. Moreover, I have strong reason to suspect that your investigation is currently violating both Federal and California law as you are not in possession of private con?dential student information and records that are driving your investigation for unknown reasons. The Subpoena is fundamentally ?awed in that it does not contain the necessary proof under California law that the patient?s parents were provided with notice of the Subpoena and an opportunity to object on the grounds of privacy. See Cal. Code Civ. Proc. 1985.3 and 1985.6. The Subpoena also does not contain a valid proof of service. I do not agree, nor am I authorized, to accept service of the Subpoena on behalf of my clients. I am separately notifying the school?s counsel (copied on this letter) of the identity of my clients, in con?dence pursuant to FERPA, so that the school is on notice of the families asserting their full privacy rights pursuant to this letter. A. Family Educational Rights and PrivacyAct (FERPA) ?At the elementary or secondary school level, students? immunization and other health records that are maintained by a school district or individual school, including a school-operated health clinic, that receives funds under any program administered by the US. Department of Education are ?education records? subject to US. Dept. of Education, Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) And the Health Insurance Portability and Accountability Act of 1 996 (HIPAA) To Student Health Records (November 2008), p. 6. And under FERPA,.schools may only share medical records of students to meet ?legitimate educational interests?. See 20 U.S.C. ?1232g and 34 C.F.R. 99.3 The school?s conduct here with sharing con?dential student information and records does not meet this standard, and it violates FERPA on two levels (1) notice requirements, and (2) substantive requirements. I. FERPA Notice Requirements To take advantage of ?legitimate educational interests? exception, the school must ?rst give annual notice of its criteria for determining what is a ?legitimate educational interest.? 34 C.F.R. Here, the school makes no immediate provision for compliance with that annual notice requirement. And even if it did, the school would still violate substantiverequirements. Notably, data reporting of Immunization Assessment Reports for purposes of Cal. Health Safety Code section 120375 and 17 CCR 6075 does not allow a release of personally identi?able information in a student?s con?dential education and health record. :2 That is why the school?s conduct here is an intrusion into student privacy. 2. FERPA Substantive Requirements Under law, routine vaccine administration is not an ?emergency?, so the State investigator may not gather personally identi?able health information from student records. See for example U.S. Dept. of Educ. Family Compliance Policy Of?ce, Letter to Alabama Department of Education re: Disclosure of Immunization Records, February 25, 2004, available at In this letter, the U.S. Department of Education rejects the position of the Alabama Department of Public Health that tried to gain access to student immunization records: ?Dr. Williamson [State Health Of?cer, Alabama Department of Public Health went on to state that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to students' immunization records and that HIPAA permits schools to disclose these records to the DPH. . .. . ?[T]here is no exception to FERPA's prior consent rule that would permit a school subject to FERPA to disclose health or other immunization records to a State health agency such as DPH under the circumstances described in Dr. Williamson's April 22, 2003 memorandum. A very limited exception to FERPA's prior consent rule allows educational agencies and institutions to disclose personally identi?able non?directory information to appropriate of?cials in connection with a healtiropsafetaseememmcv EUKAUJ Speci?cally, FERPA provides that education records may be disclosed without consent: in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons. ?20 U.S.C. 1232g(b)(1)(I). However, the regulations implementing this provision at 34 CPR and 99.36 indicate that these conditions will be "strictly construed." ?The exception to prior written consent requirement wascreated with the ?rst FERPA amendments that were signed into law on December 13, 1974. The legislative history demonstrates that Congress intended to limit application of the "health or safety" exception to exceptional circumstances, as follows: Finally, under certain emergency situations it may become necessary for an educational agency or institution to release personal information to protect the health or safety of the student or other students. In the case of the outbreak of an epidemic, it is unrealistic to expect an educational of?cial to seek consent from every parent before a health warning can be issued. On the other hand, a blanket exception for ?health or safety" could lead to unnecessary dissemination of personal information. Therefore, in order to assure that there are adequate safeguards on this exception, the amendments provided that the Secretary shall promulgate regulations to implement this subsection. It is expected that he will strictly limit the applicability of this exception. Dec. 13, 1974. (These amendments were made retroactive to November 19, 1974, the date on which FERPA became effective.) ?t?Joim Statement in Ex lan'ati?on of Buckle [Pail Amendment 120 Cong. Rec. $21489, ?This Office has consistently interpreted this provision narrowly by limiting its application to a specific situation that presents imminent danger to students or other members of the community, or that requires an immediate need for information in order to avert or diffuse serious threats to the safety or health of a student or other individuals. While the exception is not limited to emergencies caused by terrorist attacks the Department's Guidance on ?Recent Amendments to Relating to Anti- Terrorism Activities,? issued by this Of?ce on April 12, 2002 provides a useful and relevant summary of our interpretation (emphasis added): 3 [T]he health or safety exception would apply to nonconsensual disclosures to appropriate persons in the case of a smallpox, anthrax or other bioterrorism attack. This exception also Would apply to nonconsensual disclosures to appropriate persons in the case of another terrorist attach such as the September 11 attack. However, any release must be narrowly tailored considering the immediacy, magnitude, and speci?city of information concerning the emergency. As the legislative history indicates, this exception is temporally limited to the period of theemergency and generally will not allow for a blanket release of personally identi?able information from a student's education records. Under the health and safety exceptiOn, school of?cials may share relevant information with "appropriate parties," that is, those parties whose knowledge of the information is necessary to provide immediate protection of the health and safety of the student or other individuals. (Citations omitted.) Typically, law enforcement of?cials, public health of?cials, and trained medical personnel are the types of parties to whom information may be disclosed under this FERPA exception . . .. The educational agency or institution has the responsibility to make the initial determination of whether a disclosure is necessary to protect the health or safety of the student or other individuals. ?In summary, educational agencies and institutions subject to FERPA may disclose personally identi?able, non-directory information from education records under the "health or safety emergency" exception only if the agency or institution determines, on a case-by-case basis, that a specific situation presents imminent danger or threat to students or other members of the cemmunity, or requires an immediate need for 3 I :35 information in order to avert or diffuse serious threats to the safety or health of a student or other individuals. Any release must be narrowly tailored considering the immediacy and magnitude of the emergency and must be made only to parties who can address the speci?c emergency in question. This exception is temporally limited to the period of the emergency and generally does not allow a blanket release of personally identifiable information from a student's education records to comply with general requirements under State law.? [emphasis added] Accordingly, this legal opinion letter precedent from the U.S. Department of Education is directly "on point to show that third parties cannot access or retain con?dential student records. See also U.S. Dept. of Educ. Family Compliance Policy Of?ce, Letter to University of New Mexico re: Applicability of FERPA to Health and Other State Reporting Requirements, Nov. 29, 2004, available ?We cannot come to the same conclusion with respeCt to the ?routine? or non-emergency reporting that is required by regulation for other noti?able conditions, including the infectious diseases, injuries, environmental exposures, sexually transmitted diseases, cancer, and birth defects speci?ed in 7NMAC 4.3.12 B, as well as reports to the New Mexico Tumor Registry required under 7 NMAC 4.3.10. Indeed, in these cases, the State Department of Health has determined that the speci?ed disease or condition does not constitute an imminent danger or threat or that emergency reporting or other action is necessary to address the concern. Consequently, the University may not disclose information from a student's education records to meet these "routine? health reporting requirements unless ithas made a speci?c, case-by-case determination that a health or safety emergency exists. . . [emphasis added] - See also Federal Register, Vol. 73, No. 237, December 9, 2008 (regarding 34 CFR Part 99) ?Health or Safety Emergency Disclosure in Non-Emergency Situations ?Comment: Some commenters suggested that we interpret 99.36 to permit the sharing of information on reportable diseases to health of?cials in non-emergency situations. These commenters stated that the disclosure of routine immunization data should be subject to State, local, and regional public health laws and regulations and not FERPA. One of these commenters noted that the HIPAA Privacy Rule allows covered entities to disclose personally identi?able health data, without consent, to public health authorities. ?Discussion: There is no authority in FERPA to exclude students? immunization records from the de?nition of education records in FERPA. Further, the HIPAA Privacy Rule speci?cally excludes from coverage health care information that is maintained as an ?education record?-under FERPA. 45 CFR 160.103, Protected health information. We understand that the HIPAA Privacy Rule allows covered entities to disclose identi?able health data without written consent to public health authorities. However, there is no ?a statutory exception to the written consent requirement in FERPA to permit this type of disclosure. As explained 1n the preamble to the NPRM (73 FR 15589), the amendment to the health or safety emergency exception in 99. 36 does not allow disclosures on a routine, non-emergency basis, such as the routine sharing of student information with the local police department. Likewise, this exception does not cover routine, non-emergency disclosures of students? immunization data to public health authorities. Consequently, there 13 no statutory basis for the Department to revise the regulatory language as requested by the commenters. [emphasis added] Based on clear precedents like these, there would be no rational legal basis for anyone to violate the privacy of my clients. B. California Medical Con?dentiality Laws 1. The Con?dentiality of Medical. Information Act (CMIA) California law prohibits the school?s disclosure of records that contain a student?s medical information, unless the parent has ?rst provided a detailed authorization for release of the information. CA Civil Code ?56. 11 None of the listed exceptions to CA Civil Code ?56. 11 e. ,emergency situation) would apply here to my clients. See also remedies under The Information Practices Act (IPA), which limits the collection, maintenance, and distribution of personal information by state agencies. Cal. Civ. Code. 1798- 1798. 78. See also prohibitions on the disclosure of genetic information. .Cal. Civ. Code 56.17. Remember, each individual?s privacy is important and special. 2. Cal. Health Safety Code section 120440 Cal. Health Safety Code section 120440 states regarding student health records: A patient or a patient's parent or guardian may refuse to permit recordsharing. . . (4) The patient or client, or the parent or guardian of the patient or client, may refuse to allow this information to be shared in the manner described, or to receive immunization reminder noti?cations at any time, or both. After refusal, the patient's or client's physician may maintain access to this information for the purposes of patient care or protecting the public health Indeed, without parental consent, the school 13 not even allowed to report the child as a statistic for purposes of Immunization Assessment Reports. Note that the statute speci?es that it is the patient's physician who 15 entrusted with the duty of protecting public health in these cases for the patient in question. The physician must keep the patient's information con?dential unless a speci?c and lawful order requires the information? 5 release pursuant to one of the identi?ed statutes Investigator Henderson has provided no such order. The medical privacy notice requirements of Cal. Health Safety Code section 120440 et seq require schools to give parents notice and the opportunity to Opt out of medical information sharing with the government: Cal. Health Safety Code section 120440 A patient or a patient?s parent or guardian may refuse to permit recordsharing. The health care. provider administering immunization and any other agency possessing any patient or client information listed in subdivision leaning to provide patient or client information to an immunization sg? stem, as described in subdivision shall inform the patient or client, or the parent or guardian of the patient or client, of the following: (1) The information listed in subdivision (0) may be shared with local health departments and the State Department of Public Health. The health care provider or other agency shall provide the name and address of the State Department of Public Health or of the immunization registry with which the provider or other agency will share the information. (2) Any of the information shared with Incal health departments and the State Department of Public Health shall be treated as con?dential medical information and shall be used only to share with each other, and, upon request, with health care providers, schools, child care facilities, family child care homes, W1C service providers, county welfare departments, foster care agencies, and health care plans. These providers, agencies, and institutions shall, in turn, treat the shared information as con?dential, and shall use it only as described in subdivision (3) The patient or client, or parent or guardian of the patient or client, has the right to examine any immunization-related information or tuberculosis screening results shared in this manner and to correct any errors in it. (4) The patient or ?client, or the pa rent or guardian of the patient or client, max refuse to allow this information to be shared in the manner described, or to receive immumzation reminder 1111111" 113110115 at an! time, or both After refusal, the patient's or client?s physician mav maintain access to this information for the pugphses of patient care or protecting the public health. After refusal, the local health department and the State Department of Public Health may maintain access to this information for the purpose of protecting the public health pursuant to Sections 100325,120140, and 120175, as well as Sections 2500 to 2643. 20, inclusive, of Title 17 of the California Code of Regulations. 3 This letter will con?rm that, pursuant to Cal. Health Safety Code section 120440(e)(4), my clients do n_ot consent to the government?s illegal possession of their children?s vaccination record, medical exemption record, or even contact information. My clients chose to work speci?cally with Dr. Stoller to authorize him to release only the information provided on the medical exemption statement, and only to the school for admission purposes under Cal. Health Safety Code section 120370. C. The Subpoenas Attempt to Breach Medical Privacy Article I, section 1 of the California constitution recognizes the importance of individuals? privacy rights, rights that clearly apply to medical records, and rights that are protected ?-om administrative agencies as much as any other government entity. See Bd; of Med. Quality Assurance v. Gherardini, 93 Cal. App. 3d 669 (1979). Given the sensitivity of a person?s medical information, it is particularly important for government of?cials to follow the rules courts have ?recognized, rules designed to ensure that a person?s privacy interests are respected. If an administrative subpoena is even allowed, it ?must not be too inde?nite,? and it must seek ?relevant? information. Brovelli v. Superior Court, 56 Cal. 2d 524, 529 (1961). See also Bd. of Med. Quality Assurance v. Hazel Hawkins Mem ?1 Hosp, 135 Cal. App. 3d 561, 565 (1982). The present subpoenas, however, demand con?dential student information and are not narrowly tailored to any particular issue or concern, as they must be. The courts have repeatedly rejected these types of overly broad or ?omnibus? demands as a violation of the privacy protections of the state constitution. See Bearman v. Superior Court, 117 Cal. App. 4th 463, 472 (2004); Wood v. Superior Court, 166 Cal. App. 3d 1138, 1148-50 (1985). D. California Consumer Protection Law The Subpoena does not contain the necessary proof under California law that a student?s parents or guardian were provided with notice of the Subpoena and an opportunity to object on the grounds of privacy. See Cal. Code Civ. Proc. 1985.3 and 1985.6. The Subpoena also does not contain a valid proof of service. Regards, Musighed by: . GregwaljaseiCW?ftor-ney at Law cc: Matthew C. Vance Attorney for Mammoth Uni?ed School District 6300 Wilshire Boulevard, Suite 1700 Los Angeles, California 90048 mvance@f31aw.com