A judge on Tuesday ruled in favor of a Kentucky health department that temporarily banned unvaccinated students from attending school and related activities after school officials said there was an outbreak of the chickenpox. Lawyers for the students say they plan to appeal the decision, and other local health departments are watching the situation closely.
Last month, Jerome Kunkel, a senior at the private Assumption Academy in Walton sued the Northern Kentucky Independent District Board of Health after he and other students were banned from school and school-related activities because they hadn’t received the chickenpox vaccine. More than 30 people — including students and teachers — had been diagnosed with the chickenpox, according to school officials. The outbreak prompted the board of health to require students to provide vaccination or proof of immunity, or be banned from school and related events for 21 days, which is in line with guidance from the Centers for Disease Control and Prevention.
Scott Lockard, public health director of the Kentucky River District Health Department, said it's rare for health departments to be sued, but he said he's not that surprised by the northern Kentucky case.
"We find that increasingly we're doing more policy work, so it comes as no surprise that we're being called on to defend those things in a court of law," Lockard said.
Lockard said he's paying close attention to the lawsuit in northern Kentucky in case an outbreak were to occur in his area and similar measures had to be taken to protect the public.
"If action like this is mandated, we would make those recommendations and then we would be prepared to defend those recommendations in court," he said.
The Northern Kentucky Independent District Board of Health wouldn't comment on how it is paying for its legal fees in the case. But Temple Juett, director of insurance for the Kentucky Association of Counties (KACO) said that an insurance policy the health department has with KACO is covering some of the costs.
He said if the northern Kentucky health department loses its case, its insurance premium could go up. And Juett said that could be the case in general if we start to see more health departments being sued — insurance premiums could rise, with the increase costs being passed on to taxpayers, he said.
Jefferson County Public Health and Wellness Medical Director Lori Caloia said she’s worried about the spread of the so-called anti-vaccine movement. She said researchers have done a lot of work to try to reach people who believe vaccines are harmful.
"They've done a lot of studies trying to figure out what we can do as public health entities to try to help change people’s minds, and it seems like everything that we try to do just kind of fuels the fire even more and makes people even more reluctant to vaccinate," Caloia said.
Christopher Wiest is the attorney representing Kunkel and 24 other students in the case against the Northern Kentucky Board of Health. Wiest said that about 88 percent of the students at Assumption Academy have religious exemptions from vaccinations. And he said he’s not buying that the health department had to ban unvaccinated students to protect the public from chickenpox.
"That argument that they're making, I think, could take more force and have more effect if it were a more serious illness than the chickenpox," Wiest said.
In the early 90s as many as 13,000 people were hospitalized each year with complications from chickenpox and around 150 people died every year, according to the Centers for Disease Control and Prevention. The disease is highly contagious. Serious complications from chickenpox can include pneumonia, bacterial infections and infection or inflammation of the brain, according to the CDC.
"Chickenpox can be deadly," Caloia said. "I've taken care of several people in my career that have died from varicella [chickenpox]. So it's not a mild disease always."