A House budget committee this week adopted a proposal that’s intended to stop state medical regulators from bullying doctors but that critics say would block discipline of any physician who writes an off-label prescription with adverse outcomes.
The House Higher Education Budget Committee on Tuesday amended the state Board of Healing Arts’ budget partly because of an investigation that Republican state Sen. Mark Steffen acknowledged but without divulging many details.
During the Higher Education Budget Committee meeting, Republican state Rep. Jesse Burris of Mulvane added an amendment to the medical board’s $6.6 million recommended budget for each fiscal year in 2022 and 2023.
The amendment is intended to stop the Board of Healing Arts from using any money to carry out investigations of physicians for presenting all available options for treating an illness, a claim one Democrat questioned was happening.
The Kansas Medical Society is warning that the amendment is overly broad and could lead to physicians going without discipline if they prescribe an off-label drug with serious negative side effects to a patient’s health.
Steffen – an anesthesiologist – talked about the Board of Healing Arts investigation during a recent Senate health committee hearing on a bill that would require pharmacists to fill prescriptions for ivermectin and hydroxychloroquine.
The Hutchinson lawmaker told the Senate health committee he had been under investigation for a year and a half as a way of trying to stop him from advocating for using off-label medications such as ivermectin to treat COVID-19.
Steffen has acknowledged writing prescriptions for ivermectin to treat COVID, but said the investigation was not based on patient care.
He said the investigation is about statements he’s made in public dating back to his time as a county commissioner before he was in the Senate
Burris’ amendment says nothing about ivermectin or hydroxychloroquine and there was scant, if any, discussion about those drugs and their health implications during the House committee hearing. It also doesn’t mention COVID-19.
The amendment says:
“The board shall not expend any monies to investigate or take any disciplinary action against any physician who in the medical judgment and experience of such physician provides treatment or prescribes a prescription drug approved by the FDA for an off-label use to prevent or treat an infection or a disease caused by an infection in a patient and has discussed and presented all treatment options that are appropriate for and available to such patient and the physician also determines there is a valid medical purpose…”
Burris said the amendment was based on Steffen’s public comments about the investigation during the Senate committee meeting.
He didn’t mention Steffen by name but referred to the comments he made during the Senate hearing on Jan. 26.
Burris also said the amendment was based on information that the board is investigating the personal physician of Republican state Rep. Trevor Jacobs of Fort Scott.
Burris said the amendment was intended to ensure that the board “isn’t sort of intimidating physicians or hamstringing them, preventing them from presenting all available options.”
“I am very concerned that the board is unfairly targeting certain physicians,” he said.
However, the executive director for the Kansas Medical Society voiced serious concerns about the amendment, which applies to all off-label prescriptions, not any single one in particular.
Rachelle Colombo said the amendment means that a physician who prescribes an off-label drug won’t be subject to investigation or discipline if the patient suffers adverse side effects.
“If there’s an adverse outcome that’s related to off-label prescribing, the physician is no longer accountable to the licensing authority for meeting standard of care,” Colombo said of the amendment.
Off-label prescriptions, used when there isn’t an effective alternative available for the patient, make up about 20% of all prescriptions, the medical society has testified.
“It’s pretty unusual for a budget committee to pass out such sweeping policy,” she said.
Republican state Rep. Susan Humphries, chair of the budget committee, said she was glad the amendment came up during the committee’s deliberations because of concerns that doctors were being investigated for alternative treatments they believe are helpful.
“It’s not just because of one senator who’s dealing with this, but there are other doctors around the state that have been dealing with it, and not much attention has been brought to it,” Humphries said in an interview.
The full House Appropriations Committee will consider the Board of Healing Arts budget on Monday when the amendment will be vetted again.
Democrats on the committee opposed the amendment to the budget, which is funded by fees paid by physicians the agency regulates.
“I think we’re opening up a big can of worms here, and we’re going to tie the hands of the Board of Healing Arts as we proceed with this,” said Democratic state Rep. Mike Amyx of Lawrence.
“I think any time complaints are filed, I think we need to allow the process to work,” he said. “I think it places us in a pretty awkward position.”
Most of the debate in the committee focused more on regulatory agencies than the alternative treatments advocated by Steffen or the bill pending in the Senate.
“One of the problems that the state Legislature has is that departments and organizations are developing rules and regulations and circumventing the Legislature in order to make law,” said Republican state Rep. Barbara Wasinger of Hays.
“I do not see any issue in doing this, whether you vote for it or not,” she said. “This is a rampant problem, and it needs to be changed.”
Republican state Rep. Bill Rhiley of Wellington also criticized executive branch agencies of overstepping their bounds.
“Executive branch agencies are creating unnecessary rules and regulations that are a burden to the incomes and livelihoods of the clients they’re given to supervise by the Legislature,” he said.
“We will be sensitive to any additional rules or regulations your agency tries to implement.”
