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Judge rules against unvaccinated teen who sued health department over chickenpox policy

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A Kentucky judge rejected the claims made by a teenager who sued his local health department for temporarily barring students at his school who aren't immune...

Posted: Apr. 4, 2019 6:41 AM

A Kentucky judge rejected the claims made by a teenager who sued his local health department for temporarily barring students at his school who aren't immune against chickenpox from attending classes and participating in extracurricular activities.

Last month, the local health department implemented the policy after an outbreak of chickenpox affected 32 people, which is 13% of the student body, at Our Lady of the Sacred Heart/Assumption Academy in Walton, Kentucky.

The student, Jerome Kunkel refuses the chickenpox vaccine, citing his Christian faith.

In response to the outbreak, the Northern Kentucky Health Department announced that all students at the school who don't have "proof of vaccination or proof of immunity against chickenpox will not be allowed to attend school until 21 days after the onset of rash for the last ill student or staff member." The school's sports and extracurricular activities were canceled to avoid spreading the illness to other schools and places.

Kunkel, a senior at the school, filed a lawsuit over the health department's decision, especially because it affects his basketball season.

"The fact that I can't finish my senior year of basketball, like our last couple games is pretty devastating. I mean you go through four years of high school, playing basketball, but you look forward to your senior year," he told CNN affiliate WLWT last month.

None of the basketball team members were vaccinated for chickenpox, the school's principal had told a health official, according to the judge's ruling obtained by CNN affiliate WXIX.

Only 18% of the school's students are fully vaccinated, a school official told the local health department. One of its students had been treated at Cincinnati Children's Hospital with joint pain and difficulty moving limbs, and was found to have chickenpox, as well as symptoms of a superinfection.

Chickenpox is a very contagious disease that causes a blister-like rash, itching, tiredness and fever, according to the US Centers for Disease Control and Prevention. It can spread by touching or breathing in virus particles. It can be especially serious for babies, pregnant women and people with weakened immune systems.

In late February, Kunkel was told he couldn't attend or play any upcoming basketball games because test results indicated that he was not immune to chickenpox. Kunkel and his father told WLWT that he was being discriminated against because of religious beliefs.

Kunkel had argued that missing weeks of school may have lifelong consequences and alleged that the health department had "acted in retaliation for his exercise of his religious beliefs." The health department responded that it had ordered the temporary ban because of the chickenpox outbreak, not because he wasn't vaccinated.

After a hearing on Monday, Boone County Circuit Judge James Schrand rejected Kunkel's request to prevent the health department from enforcing its school and activities ban.

The judge rejected many of his claims and pointed out that one of his parents had signed a state form that allows rejection of immunizations on religious grounds, that also notes the child may not be allowed to attend school for weeks if there is an outbreak of a vaccine-preventable disease.

In response to the judge's ruling Tuesday, the Northern Kentucky Health Department said it was "pleased with the Court's careful and thorough review of the evidence and legal issues posed in this case."

"The Court's ruling ... underscores the critical need for Public Health Departments to preserve the safety of the entire community, and in particular the safety of those members of our community who are most susceptible to the dire consequences when a serious, infectious disease such as varicella, is left unabated and uncontrolled," it stated.

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