The Unvaccinated Should Pay for Outbreaks They Cause
Jun 10, 2014

This guest post has been written by Dr. Dorit Reiss, Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA.   Dr. Reiss serves on the Parent Advisory Board of Voices for Vaccines and contributes to various articles, blogs and law journals, utilizing her legal expertise to examine the social policies of immunization.      

DoritYouBreakItIn 2005, an unvaccinated teenager brought back an unwanted passenger from Romania: measles. In spite of not feeling her best, she attended a church picnic, spreading the infection to nineteen other people, who then spread the infection to others. In total, 34 people were infected, the majority of them also unvaccinated. The containment costs to the public purse were $62,216 (in 2014 US dollars).

Containment activities involved “ninety-nine public health officers and infection-control personnel working in 12 health departments and health care facilities. . . .”(p.449). These personnel reported 3,650 hours of work, 4,800 telephone calls, 5,500 miles driven, and 550 lab samples to contain the outbreak started by a single unvaccinated teen returning from travel.

It’s only money, you might think. Compared to the suffering of these 34 people, and the potential complications of measles, which include deafness, encephalitis and death, who cares if health officials worked a little harder and if agencies had to spend more money? After all, that’s their job, right?

But public budgets are limited, and even public employees have limited time. The time and money spent on the outbreak had to come from somewhere. Other important activities did not get done because officials were working to contain the infection.  It is fair to say, other services likely suffered.

Containing outbreaks is expensive. Sometimes, outbreaks just happen. But sometimes, they are caused because of an individual’s decision not to take a precaution. In this case, and in other outbreaks throughout the United States, the outbreak was caused specifically because of a decision not to vaccinate.

Vaccines save lives. Modern vaccines are incredibly safe and generally very effective. When someone chooses not to vaccinate themselves or their child, they are not just choosing to leave themselves at risk of disease; they are also choosing to increase the risks of an outbreak. Even if they themselves don’t travel to an area where the disease is rife, they are undermining herd immunity. Herd immunity exists when there are a high enough number of protected individuals to form a protective ring around those susceptible to the disease.  Herd immunity can prevent a disease from taking hold or spreading through the community. In other words, lower numbers of immune individuals means less protection against an outbreak for the entire community.

Why should the state have to pay for an outbreak due to a choice someone made that ignores the risk of disease, goes against scientific and medical consensus, and creates a risk for the community? Why should there be less money left for services to people with disabilities and other needs because someone decided not to protect themselves or their children?  Why is it acceptable that people choose for themselves and consequences to the community be damned?

In our paper, my co-authors and I argue that those who refuse vaccination for non-medical reasons should pay. (Note: we’re not suggesting imposing costs on those with medical contraindications. They are, perhaps, the group most victimized by purposeful non-vaccination, because they live with a higher risk than others should herd immunity be undermined). A more elaborate discussion of the justifications can be found here.

Our article addresses how the state could recoup those costs. The main choice would be whether to impose payment on all those who choose not to vaccinate before an outbreak occurs, or whether to impose payment on the specific individuals that caused or contributed to an outbreak after the fact. 

Imposing Payment Before an Outbreak Occurs (Ex-Ante):

One way to attribute costs would be to determine that those who choose not to vaccinate are creating a risk for us all. It’s fair to make one pay for that risk, and we’ll simply charge people at a rate that will equal the expected costs to the public.   This can be done via a specially assessed fee, or tax, on those who don’t vaccinate. Alternatively, vaccinating families can get a tax break. Such a system exists in Australia, where certain benefits depend on meeting immunization requirements or having a medical exemption.

An alternative idea is to raise insurance premiums on those who do not vaccinate, and therefore are likely to impose higher costs on the health insurance system. Desirability apart, there are legal barriers with this idea.  Under the Affordable Care Act (ACA) there are only four grounds under which insurers can set different premiums – and vaccination status isn’t currently one of them. Changing the ACA would be a political nightmare, and unlikely to happen just for this reason, but it is something to keep in mind if a more general reform of the ACA is suggested at some point.

On the other hand, the ACA allows insurers to offer discounts to those participating in wellness programs – and vaccinating can be seen as a wellness program.

Why would we use one of these mechanisms? Well, they have some important advantages. First, they allow us to distribute the risk among all those who contribute to it.  This is fair because anyone who contributes to the risk has to cover it and it’s practical because one family may not have enough money to cover the extraordinary costs of an outbreak. Second, these mechanisms would eliminate the need to identify the specific individual which caused the outbreak, which can be difficult to do. Finally, this mechanism won’t generate any incentives for families to hide a child who is sick… something we hope families won’t do for the child’s sake.

Ex-ante options do, however, pose some challenges. First, it will be difficult to determine an appropriate fee as there is no way to know the cost of outbreaks in advance of them occurring.   Also, the number of non-vaccinated individuals may be small, but outbreaks can be expensive, therefore if it were an accurate depiction of true costs the fee would likely be pretty high. The other consideration is how we would go about identifying the non-vaccinating families.  We have suggested using either school exemptions or the state’s immunization registry, with a presumption that those who opt out are unvaccinated, unless they prove otherwise. Neither method is perfect, however. It’s also not clear whether a fee or tax would deter people from not vaccinating.  Finally, we don’t usually impose costs of risks in advance; we only impose them if a person actually caused harm. If you drive drunk, you wouldn’t have to pay damages (though you might face criminal charges) unless you actually harmed someone.

Imposing Costs After the Fact (Ex-Post):

Another way to handle the cost issue is to wait until there’s an outbreak and then, after tracing the outbreak to one or multiple non-vaccinated individuals, charge those individuals or families. In this case, we propose a mechanism by which the public health agency itemizes the costs and sends those responsible a bill. If the family does not contest the charges, it can be collected as a debt, with no court involvement.

Since agencies can make mistakes or abuse their power, we propose an appeal mechanism. First, an administrative adjudication within the agency, then, if the billed party wants, with a court. This will ensure that the billing is enforced in a fair manner.

This mechanism has the advantage of clearly identifying the responsible party (or parties).  It’s fair because it fits our usual rules: those who made the choice only pay for the harm their choice caused. It allows us to know the costs, rather than guess them. Further, enforcement might be easier, since there will be a limited number of payers.

On the other hand, this method requires the agency to be able to show who caused the outbreak which is not always an easy task.  It may also be considered unfair because some unvaccinated individuals will have to pay because they had the bad luck to catch a disease, while other unvaccinated individuals will not bear any burden if they were lucky enough not to fall ill.  With the high costs of an outbreak it’s also likely that a single family, or even a small number of families, will not be able to cover the expenses.

States who want to recoup costs will ultimately decide which balance of costs and benefits is most appropriate. But as outbreaks increase, diverting more and more resources from other important public goals, it may be time to assign the costs where they belong – on those making a choice that exposes themselves, their children, and others to potential suffering, harms, and monetary loss. Many citizens, I believe, would like their tax dollars to be spent in better ways than covering costs caused by someone who refuses to help in the fight against infectious diseases.

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