House sends Senate bill for opt-out from mask mandates, testing and vaccines, ban of mandates in public colleges and universities

By Melissa Patrick
Kentucky Health News

A bill to allow parents and guardians to opt their children out of mask mandates in public schools, and ban general mask mandates at public colleges and universities, passed the state House 56-35 Tuesday. 

Rep. Lynn Bechler

House Bill 51, sponsored by Rep. Lynn Bechler, R-Marion, would allow a parent or guardian to opt out of any masking, testing or vaccination requirements imposed in response to the coronavirus. 

Colleges and universities would be able to require masks only for delivery of medical or dental services or to the integrity of clinical research.

“This legislation doesn’t outlaw mask wearing,” Bechler said during a debate that lasted almost an hour. “It simply makes mask wearing optional from preschool through college.”  

The bill would have allowed a parent to refuse facial coverings for children in a child-care facility. That was removed by a floor amendment, but it would still prohibit the state from penalizing a child-care center for not requiring facial coverings in response to the Covid-19 pandemic. 

The action came after most Kentucky school had already dropped their masking requirements. The University of Kentucky did so, effective Wednesday.

The Centers for Disease Control and Prevention recently released new masking guidance that encourages more schools to drop masks, but still recommends they require them in areas with high virus transmission -- including 64 of the state's 120 counties, most in Eastern Kentucky.

As the House gathered Tuesday, the CDC published research showing that Arkansas schools that required masks had 23 percent fewer coronavirus cases than those that didn't.

Legislators from both parties pointed out that the General Assembly voted last year to end the statewide mask mandate and to give local school boards the authority to require masks.

Rep. Adam Koenig, R-Erlanger, spoke in favor of local control and then asked his fellow Republicans how they feel when the federal government takes power from the state: "What is the difference?"

"I'm not excited about sending power six months ago to the locals and then saying, 'You know what? You're not doing it right. We're gonna take it back,'" he said. 

Rep. Jim DuPlessis, R-Elizabethtown, voted no after saying he was torn over his vote, said he had concerns over how the bill would affect schools if the state faced with another deadly variant of the virus.

“If we choose to take away a local school board’s ability to mandate an N-95 mask, which we admit works, they can shut the school down for a couple of weeks, or three weeks or four weeks. They can do NTI, which doesn't work,” DuPlessis said, referring to non-traditional, or remote, instruction. “We’re going to do something that could cause an unforeseen circumstance . . .” 

Bechler, asked how schools would deal with a new variant, said, "I believe most parents would make the intelligent decision for the health of their children. I want to point out that as I said earlier, that unless someone is wearing an N-95 mask properly, the masks do not prevent Covid from spreading." 

Asked to be more specific, he said, “The lever is the school board, the superintendent, the principals talking to the parents. If they are as good as I’ve heard they are today, then they can make the case the masks are in fact necessary." 

Bechler's assertion about masks conflicts with the new CDC study, which did not differentiate among types of masks, and a CDC list of studies that show masks slow the spread of the coronavirus.

One study, released Feb. 11, found that consistent use of a face mask or respirator (KN95 or N95) in indoor public settings was associated with the lowest odds of getting Covid-19, and that cloth and surgical masks also offered protection. 

Among the 534 study participants who reported the type of mask they used, cloth masks offered 56% more protection than wearing no mask; surgical masks offered 66% more; and respirator masks offered 83% more.

Rep. Lisa Willner, D-Louisville, said the bill, which now goes to the Senate, would present challenges for medically fragile students and infringe on their right to attend school safely: "We are all tired of the pandemic. We are all tired of the masks. . . . But the fact is that it is not over and why we would take away such a simple and useful tool in our public schools is simply beyond me." 

In a news release, the American Civil Liberties Union of Kentucky said, "HB 51 would force some students with disabilities to choose between their health and their education [and] force educational institutions to neglect their responsibilities under federal law to ensure equal access for students with disabilities."

Rep. Jason Nemes, R-Louisville, spoke for the bill, saying it is what his constituents have been asking for: “What we’re doing here today is we're removing governmental control over that decision and putting it again to the most local level, which is their parents.”

Rep. Felicia Rabourn, R-Turners Station, also spoke in favor of the bill. 

"My vote sends a strong message to parents, teachers and students," she said. "It sends a message that I hear them loud and clear and I support the parents' decision to make the best decision for their child based on their individual needs."