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Science won't stop Rhode Island from resuming mask mandate on kids: proposed regulation

Department of Health showed its "middle finger to the court" by ignoring settlement agreement with parents who sued, one plaintiff says. Their lawyer, who recently defeated challenge to Trump on state ballot, threatens to seek contempt of court.

Published: January 29, 2024 11:01pm

Updated: February 2, 2024 5:17pm

Rhode Island convinced parents last month to drop their 2021 lawsuit against its gone-but-not-forgotten COVID-19 mask mandates in schools by pledging to hold public hearings should it seek to reimpose them.

Now the Ocean State is proposing a health regulation under which it could force kids to mask up again without justifying it through scientific evidence, allegedly violating the dismissal stipulation that ended the case Dec. 13.

Plaintiffs' attorney Greg Piccirilli, known for getting teachers reinstated after they were fired for refusing COVID vaccination, threatened to seek contempt of court against the state when he received the proposed regulation that is now pending at the Office of Regulatory Reform.

The new language is "not what we agreed to" in settlement discussions going back to last spring and as recently as Jan. 3, and "I have never seen it worded this way," Piccirilli wrote to his counterpart at the office of Attorney General Peter Neronha, calling it a "bait and switch."

Piccirilli singled out revised provision 4.3B: "An absence of scientific evidence regarding the effectiveness of face masks against a specific pathogen will not prevent the [Rhode Island] Department [of Health] from considering a face mask requirement."

"Seriously, who at RIDOH thought it was good to include this language?" he asked. "It is already being mocked mercilessly."

Piccirilli demanded the reinstatement of the agreed-upon language.

RIDOH public information officer Joseph Wendelken confirmed the proposal is under review at ORR but didn't answer Piccirilli's allegation that it violated the dismissal stipulation.

Stanford medical professor Jay Bhattacharya joined the mocking Thursday, comparing Rhode Island's proposal to the "Indiana Pi Bill" that would have redefined the mathematical constant as 3.2 in the Hoosier State. It passed the House unanimously in 1897 but died soon after.

"I had wanted to attach the draft regulation to the dismissal," Piccirilli wrote in an email to Just the News Monday afternoon, but "RIDOH attorneys did not want to because it was still marked confidential."

The original "Part 4" section said RIDOH would "consider scientific evidence as well as the feasibility" of a mask mandate if it reinstated the requirement that expired in spring 2022, though "some evidence may be given more weight than other evidence." 

The new version received by Piccirilli, known recently for fending off a legal challenge to former President Trump's ballot access in Rhode Island, includes two additional provisions. 

The revised 4.3A emphasizes that RIDOH may have to implement "multi-faceted measures," including but not limited to "testing, treatment, vaccination, quarantine and isolation, handwashing, physical distancing, barrier protections, face masking, and improved ventilation." 

It said the "current evidence is constantly evolving as new research becomes available. When there is no or limited scientific evidence, RIDOH makes decisions based on expert opinions of the medical and public health community with what data may be available at the time."

The revised 4.3B follows.

"The only response I have gotten from the State attorneys" after Piccirilli complained "is that the guy who sent this new regulation was out of office and they were looking into it," he said. "Still nothing today."

Piccirilli's email to Neronha's office was posted Friday by his client Nicole Solas, who called the RIDOH proposal a "middle finger to the court."

Solas is an indefatigable irritant to the Ocean State political establishment because of her voluminous Access to Public Records Act requests. State and local teachers unions sued her to block the release of district curriculum and policies related to critical race theory, antiracism, gender theory and children's sexuality. 

She filed an APRA lawsuit last week against the South Kingstown School District for "knowing, willful and reckless" withholding of documents related to its BIPOC Advisory Board, which held closed meetings in alleged violation of state law. BIPOC means black, indigenous and people of color.

Solas also filed a similar complaint against Neronha's office for alleged APRA violations. By muting her on his personal X account, which Neronha uses for mocking critics and official business, he may have violated First Amendment "public forum" obligations.

RIDOH and Democratic Gov. Dan McKee failed to get the school mask mandate lawsuit mooted after the mandate expired, with Judge Jeffrey Lanphear finding "no indication that our state will never impose another student masking requirement."

They soon suffered embarrassment when the deposition transcript for RIDOH interim Director James McDonald, a pediatrician, became public in summer 2022.

Responding to Lanphear's finding that students had suffered "irreparable harm" due to the mandate, McDonald claimed he had reviewed medical journals for several months but professed ignorance about studies that found masks have documented harms on children, who are not "key drivers of the pandemic," and are prone to fungal contamination.

The court docket shows the two sides reached agreement on a dismissal stipulation after 13 status conferences last year, which parent Laurie Gaddis Barrett attributed to "tedious legal wrangling" by the defendants against discovery demands. 

The agreement is "notable because to our knowledge, this is the FIRST TIME there will be a public regulatory process in the costs/risks vs benefits of masking in K-12," Barrett wrote on X on Dec. 12, 2023. "This means, the State of RI will have to PROVE, in public, that masking children does more good than harm."

While RIDOH "has no present intention to require statewide face masks for students in K-12 schools," the dismissal stipulation specifies the Administrative Procedures Act will govern any such proceeding on the "proposed permanent regulation." 

A public comment session will allot an hour to the plaintiffs for oral comment "after the general public has had an opportunity to offer its comments," while "non-Plaintiffs whom the Plaintiffs ask to speak on their behalf" will then get two hours of oral comment. 

Barrett interpreted the latter as applying to the parents' expert witnesses, whom Rhode Island "will have to defeat [...] before they ever order another mask on a child again."

"This Dismissal Stipulation shall be effective at the moment that RIDOH issues the notice of public comment for the PPR," the document concludes.

"It is astounding that our own department of health would make any decision that might negatively impact the physical health, education, & emotional development of our children, based on a mere statement" rather than science, Mike Stenhouse, CEO for the Rhode Island Center for Freedom & Prosperity, wrote for The Ocean State Current on Friday.

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