Couple's original complaint about release of vaccination stats was on behalf of anti-vax group

Published on Monday, 2 September 2019 20:16
Written by SUSAN CORICA

@coricaBP

BRISTOL - Opposing arguments filed in the case of a local couple suing to block the state’s release of data on the percentage of unvaccinated students show they initially objected to the release on behalf of an anti-vaccine organization.

Kristen and Brian Festa filed their lawsuit against the Connecticut Department of Public Health, arguing that the data should have been kept confidential and its release exposed families that don’t vaccinate their children to “hateful and vitriolic” comments on social media.

They are being represented by state Rep. Cara Pavalock-D’Amato, an attorney who practices family law, bankruptcy, and foreclosure defense.

Pavalock-D’Amato, who represents the 77th District, says that on May 3 Informed Choice CT sent a letter to DPH Commissioner Renee Coleman-Mitchell asserting that DPH would be violating state statute in releasing the information and urging her to reconsider.

At the time, the Festas were ICCT board members. Brian Festa drafted the letter on behalf of the organization. It was signed by LeeAnn Ducat, ICCT founder.

On its website, ICCT describes itself as “a coalition of physicians, nurses, medical researchers, scientists, legislators, attorneys, parents, professionals, and activists come together for a unified approach to restoring and protecting our personal, parental, medical, and religious freedoms.” In the 2019 legislative session, the organization lobbied against a proposed elimination of the state’s religious exemption to mandatory immunization of schoolchildren.

DPH published the information on its website the same day ICCT sent its letter. It showed the percentage of unvaccinated students in each school in Connecticut – public and private – where at least 30 children are enrolled, for 2017-18. The Festas aren’t seeking money damages but a court injunction to halt the future release of new data from 2018-19 and remove the 2017-18 data from the DPH website.

On May 10, Coleman-Mitchell sent a reply to ICCT, saying she disagreed with their claim that releasing the information was discriminatory and a potential HIPAA (Health Insurance Portability and Accountability Act) violation.

She said she released the data to “make parents aware of immunization rates, allowing them to make informed decisions as to how such rates can be improved for the benefit of their children.”

While some would argue that Connecticut, on average, has a high immunization rate, the data shows “pockets of concern,” Coleman-Mitchell wrote. “In this regard, DPH will continue to recommend that school officials work with their school medical advisor, school nurses, and their local health director to improve immunizations rates where needed.”

The DPH data was released in the wake of a major measles outbreak in New York City and three reported cases in Connecticut.

Among her arguments, Pavalock-D’Amato claims Coleman-Mitchell failed to establish how publishing the immunization rates leads to “informed decisions” and ultimately the prevention of diseases. “[She] makes the assumption that by publishing the data, parents who have intentionally and purposefully not vaccinated their kids will suddenly want to vaccinate their kids based on the simple fact that the numbers were posted on a website,” Pavalock-D’Amato wrote.

In addition, Pavalock-D’Amato says DPH acknowledged it did not have the legal authority to release the information over two years ago when then-Commissioner Raul Pino testified to the state legislature in support of a bill that would have granted DPH authority to release the information. The bill was not adopted and no such legislation has been passed since, she wrote.

According to documents filed in Hartford Superior Court, the Festas’ 7-year-old son attends Meliora Academy in Meriden, a private school which provides “intensive and comprehensive educational services to students with autism spectrum and related disorders.”

Since first enrolling at Meliora in June 2016, the son, referred to in court documents as “A.F.”, has claimed a religious exemption from mandatory immunization as allowed by state statute.

In late May, the Festas filed their suit, arguing that state statute allows the collection of such data from schools but mandates it be kept confidential. Releasing the data led to some media outlets publishing articles citing Meliora as the school with the state’s seventh highest rate of exemptions at 18.5%.

The Festas said the data release “almost immediately” caused “hateful and vitriolic statements” to appear on social media, “characteristic of the harassment commonly experienced by parents who do not immunize their children due to a religious objection.”

Although there were no specific social media comments aimed at the Festas at first, once the lawsuit was filed they did become targets. These comments have caused them “to suffer a substantial increase of mental and emotional distress,” according to the amended lawsuit.

In mid-July, Pavalock-D’Amato agreed to represent the Festas.

On July 11, the Connecticut Attorney General’s office filed a motion to dismiss the Festas’ lawsuit, arguing among other things that DPH had valid reasons to release the data, the data did not single out “A.F.” or any other individual student, and the release did not treat unvaccinated students differently than vaccinated ones.

Assistant Attorney General Darren Cunningham noted the lawsuit seeks to have DPH remove the data from its website and “any other publicly available sources,” which would “have serious free speech elements that could not easily be met” as the public court documents and news articles on the subject will continue to exist.

As far as the claims of mental or emotional distress, “…even the plaintiffs admit that it was not until they named themselves in this lawsuit that they were subjected to unwanted comments,” Cunningham wrote.

The Festas could also have chosen to use pseudonyms in filing their lawsuit, but instead named their son, his school, and “even go so far as to disclose the exact nature of their son’s exemption,” he wrote.

In her opposing arguments, Pavalock-D’Amato countered: “The online threats and comments are a consequence of [DPH’s] actions but are not the true injury. The actual injury is the unequal treatment of parents and unvaccinated kids based on their religious beliefs and the invasion of privacy by publicizing the medical information provided to the state in confidence.”

Susan Corica can be reached at 860-973-1802 or scorica@bristolpress.com.



Posted in The Bristol Press, Bristol, on Monday, 2 September 2019 20:16. Updated: Monday, 2 September 2019 20:18.