ctnewsjunkie file photo
Hartford Superior Court on Washington Street (ctnewsjunkie file photo)

HARTFORD, CT — A Hartford Superior Court judge concluded that the Bristol couple challenging the release of 2017-18 immunization data failed to exhaust their administrative remedies and dismissed the case.

It’s unclear at the moment if Brian and Kristen Festa will appeal the ruling. Calls and emails were not immediately returned Monday morning.

Late Friday afternoon Judge Susan Cobb decided that the court lacked jurisdiction because the Festas had not exhausted their efforts with the Connecticut Department of Public Health, which released the school-by-school data for the first time on May 3.

The Festas have a son who attends Meliora Academy in Meriden where 18.5% of the students reported religious exemptions to required vaccinations for the 2017-18 school year. The names of students who submit exemptions are not part of the data released by the state.

The Festas claim that almost immediately after the DPH release of the information on May 3 that “hateful and vitriolic statements regarding non-vaccinated students and parents began appearing on the internet.”

The Festas joined with Informed Choice CT in writing a letter to the Department of Public Health asking them to discontinue releasing this data and to remove the current vaccination data from its website. That letter was the basis for their appeal to the court.

The data the state released included the percentage of children in kindergarten and seventh grade in each school who were vaccinated against measles and other diseases as recommended by the Centers for Disease Control and Prevention. The DPH also included the percentage of children in any grade who claimed an immunization exemption, which is based on what the schools report to the state.

But the Festas did not personally appeal to the Department of Public Health.

Instead, a group called Informed Choice CT, which represents more than 500 families, was the organization that sent the letter to Public Health Commissioner Renee Coleman-Mitchell. Brian Festa, a board member of the group, drafted the letter, which was signed by LeeAnn Ducat, founder of Informed Choice CT.

“By failing to bring their own request for declaratory relief, the plaintiffs effectively denied the defendant the opportunity to review the plaintiffs’ specific and personal circumstances and consider them as applies to the confidentiality regulation,” Cobb wrote Friday. “Consequently, this court has been denied the ability to review the agency ruling on a full record.”

The court found that even though the Festas were members of the group it “does not automatically make them a ‘party’ to the administrative proceedings.”

The court sided with the state of Connecticut and concluded that only a party to an agency action may appeal that action.

The judge also didn’t buy the argument that a declaratory ruling would be futile.

Cobb cited Housing Authority v. Papandrea which found that action by the agency on a similar issue to a different party does not make the requirement of exhaustion futile.

Rep. Cara Pavalock-D’Amato, a Republican state representative from Bristol who is representing the Festas in this case, has said that it wouldn’t have made a difference if another family filed the complaint.

“There isn’t a difference,” Pavalock-D’Amato said earlier this month. “Between parents it wouldn’t have necessarily changed. There are no facts that were different. It was about the release of the information and that’s it.”

She said the reason the commissioner released the information was to encourage more people to get vaccinated, but “there’s no correlation between who is not vaccinated and thinking that’s all of sudden going to inspire people to vaccinate their kids. They’ve done research. There’s a reason they did not want to vaccinate their kids.”

The Festas’ lawsuit arrived on the heels of a legislative session during which lawmakers, following the release of the 2017-18 school-level data, raised concerns about the potential for measles outbreaks at schools with low immunization rates and discussed the possibility of legislating an end to religious exemptions for school vaccinations.

A vocal group of parents and advocates opposed the idea, suggesting it was a violation of individual freedoms including access to public education, and some said they believed that their children had been injured by vaccines.

Gov. Ned Lamont and Coleman-Mitchell held a press conference earlier this month to say they support repealing the religious exemption and will release the 2018-19 school-by-school immunization data on Oct. 21.

The DPH already reported that religious exemptions to vaccinations increased by 25% between the 2017-18 and 2018-19 school years, from 2% of the total number of students to 2.5% of the total. The department did not report on the number of students using medical exemptions.

The statewide rate of kindergarteners receiving the Measles, Mumps, and Rubella (MMR) vaccine also has declined. The department reported that it dropped from 96.5% in 2017-18 to 95.9% in 2018-19. That’s a decrease of 0.6% based on data reported to the agency as of Aug. 13.