Kansas, like several other states, is shielding healthcare providers from sanctions for the off-label prescription of Ivermectin and Hydroxychloroquine. That said, its State Senate – and one senator, in particular – is living in “crazy town.” Time for us to take a deeper dive into so-called fly-over country.
Disclaimer and Context
Before, jumping in a quick thank you to my friend and a great writer, Dr. Billauer, for pointing me to the hijinks in Kansas. (You can read her take here.)
The state board that oversees the behavior of physicians and other healthcare providers in Kansas, the Kansas Board of Healing Arts, has been investigating for some time the public utterances and prescription behavior of those promoting the off-label use of Ivermectin and Hydroxychloroquine to treat COVID-19. I am biased on this issue, because as a physician
- I have prescribed other medications off-label.
- I find that the preponderance of scientific evidence shows that neither Ivermectin nor Hydroxychloroquine effectively treats COVID-19. That is especially true now that Paxlovid is available.
I believe that physicians and other purveyors have a first amendment right to state that Ivermectin or Hydroxychloroquine is effective in treating COVID-19. They are wrong, but they have a right to express their opinions. Having expertise in medicine should neither qualify nor disqualify that speech. That said, I believe that these statements are ethically wrong, but there are other mechanisms to deal with ethical lapses. And to be fair, if we apply that standard of misleading medical claims more broadly, where does it put this wording?
“This statement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.”
We would have to end the $35.6 billion supplement industry, as well as the physician endorsement of a multitude of products.
Because of their training and experience, physicians can customize care and prescribe off-label use for medication. But we have an obligation, both legal and ethical, to inform our patients of how we have made that decision. And that right is balanced by legal redress; I can be found guilty of medical malpractice. Specific state oversight, in this case by the Kansas Board of Healing (how I love that name), is unnecessary.
Given all that, I agree with the sentiment of the first paragraph of the initial legislation known as Kansas State Bill 381.
“Notwithstanding any other provision of law to the contrary, a prescriber may prescribe, and a pharmacist shall dispense, in accordance with a prescription drug order, a prescription drug approved by the United States Food and Drug Administration, including, but not limited to, Hydroxychloroquine sulfate and Ivermectin, for an off-label use to prevent or treat COVID-19 infection in a patient.”
And now to the hijinks.
First, the sponsors try to separate the right to prescribe off-label from the attendant responsibilities.
“…a prescriber or pharmacist shall be immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions or the rendering of or the failure to render healthcare services if such prescriber or pharmacist is acting pursuant to this section.”
Malpractice is a civil liability; you cannot have “your cake and eat it too.” If, in your judgment, these medications are effective, then as a prescriber, you must be held responsible for your decisions.
The Bill tells the Board of Healing Arts to desist from investigating physicians for their public discourse or prescription of these medications. Here things take another turn. It seems that the swing vote in the committee looking at this Bill, Senator Mark Steffen, is a physician under investigation by the Board. There is some back and forth about whether the investigation has to do with his utterances or prescriptions, but it seems a bit of a self-serving vote. That self-serving quality is further confirmed that in a bit of legislative horse-trading, he traded his vote to overrule the Governor’s veto of a state-wide redistricting plan (a plan that favored his party) to advance Bill 381.
If this was the only shenanigan, we could ascribe it to the same loss of moral and legislative direction shared by numerous members of Congress and the Senate. But the Kansas legislators have a procedural move that puts any discussion of the Senate’s filibuster rule to shame.
“Gut and Go”
As with all bicameral legislatures, for a bill to go on for executive signature, it requires approval of both houses. In this instance, the legislation already approved in a House bill was stripped out (gutted) and replaced with the language of Bill 381. Since the House bill was already approved, even though it was completely different, only the Kansas Senate approval was required (the go) to move the bill to the Governor’s desk.
Why such a confusing approach? Because “gut and go” is
“crucial to allowing lawmakers to finish their work on time when they’re supposed to remain in session only 90 days a year.”
“The gut and go is a very valuable tool,” said House Majority Leader Don Hineman, a moderate Dighton Republican. “If we are going to eliminate the gut and go, then we have to replace it with something that allows the system to continue to work.”
Finally, if this legislative version of 3-card Monte  was not enough, Senator Steffen, who I also remind you is a physician, gutted another bill (398) and jacked that bit of legislation into 381.
This latest provision would
“…allow children to opt-out of any kind of vaccine requirement at day care facilities and schools without being questioned.”
Religious and medical exemptions are already permitted under state law; this removes the consideration of those beliefs' religious nature and sincerity. No longer would a child need to be vaccinated against mumps, diptheria, or measles.
“Those who cannot remember the past are condemned to repeat it.” – George Santayana
In the 1960s, before measle vaccination, “nearly all children got measles by the time they were 15 years of age. It is estimated 3 to 4 million people in the United States were infected each year. Each year, among reported cases, an estimated 400 to 500 people died, 48,000 were hospitalized, and 1,000 suffered encephalitis” In 2021, there were 49 cases of Measles, with no deaths.
As for the mumps vaccine – the one that Wakefield used to begin the current anti-vaccination campaigns; in the years before the development of the mumps vaccine, there were roughly 186,000 cases annually in the US. In 2020 there were 142 cases.
 I suppose this is another allusion to something that puts me among the aged. 3-card Monte “is a confidence game in which the victims, or "marks," are tricked into betting a sum of money, on the assumption that they can find the "money card" among three face-down playing cards.”