Kansas Board of Healing Arts answers senator’s ‘unprecedented’ COVID-19 letter

TOPEKA — The Kansas Board of Healing Arts released a document Friday responding to confusion among medical professionals created by the “unprecedented” letter sent out by Sen. Mark Steffen about prescribing FDA-approved drugs for off-label use against COVID-19.

Steffen, an anesthesiologist who has routinely denounced other physicians for not adhering to his views on alternative treatments during the pandemic, sent March 31 a memorandum on “Senate Chamber” letterhead to about 250 hospitals, clinics and health facilities.

Steffen, a Republican from Hutchinson, warned doctors in that letter of potential consequences for declining to use ivermectin for early treatment of COVID-19. Medical literature doesn’t support Steffen’s claims about the use of off-label drugs to treat COVID-19.

Thomas Estep, president of the Board of Healing Arts, and Susan Gile, acting executive director of the Board of Healing Arts, signed a letter on behalf of the full board that served as the board’s “response and for clarification” related to Steffen’s messaging. The Board of Healing Arts described as “unprecedented” the senator’s letter dispensing unsolicited medical, legal and regulatory advice to his peers.

“While the board hopes the senator’s letter was in good faith, the board understands the source of confusion it may have caused the Kansas medical community,” their statement said. “The board values legal and factual accuracy and hopes this letter serves as clarification.”

The Board of Healing Arts’ letter said off-label drug prescribing was common, existed prior to the pandemic and wasn’t explicitly prohibited by federal or state law. However, the board cautioned health care professionals of their responsibility to ensure compliance with the standard of care and standards of professional conduct in terms of any prescription for off-label use of drugs.

The board’s members also said all off-label drug investigations by the agency, including those related to treatment of COVID-19, were reviewed under the same legal metric — whether the standard of care was met. The legal definition of the standard of care in Kansas requires doctors to “exercise reasonable and ordinary care and diligence.”

The leaders of the Board of Healing Arts said decisions required to satisfy that duty varied depending on the patient’s situation and the physician’s medical specialty.

“In general terms,” the BOHA letter said, “it is what a reasonable physician would have done under the same or similar circumstance. This is incredibly fact dependent.”

Steffen said in his letter that unidentified members of the “legal community” advised him medical professionals ought to understand a doctor’s failure to prescribe drugs like ivermectin would be considered by state health regulators as “wanton disregard” for a patient’s welfare. In other words, readers of Steffen’s letter could conclude they were in jeopardy of malpractice if they disagreed with the senator.

Steffen previously disclosed he was under investigation by the state Board of Healing Arts for off-label prescribing of ivermectin to patients. He also sought passage of a bill retroactively shielding him from disciplinary sanction by the state board.

His letter to medical professionals failed to disclose a bill granting the free pass to physicians engaged in unproven treatments for COVID-19 had only passed the Kansas Senate. It hadn’t cleared the Kansas House or survived review by Gov. Laura Kelly.

Here is what Steffen wrote in his misleading letter: “With the recent passage of Senate Substitute for HB 2280 by the Kansas Senate Public Health and Welfare Committee and subsequently the Senate as a whole, there is no reason to think that prescribing problems will arise from pharmacist or Board of Healing Arts interference.

“In consultation with the legal community, indications are that ‘failure to treat’ will now be considered ‘wanton disregard.’ As such, any perceived statutory immunity will be rendered invalid. Providing care to the ill is difficult yet rewarding when done correctly and with a patient­-first approach. I wish you the very best as our treatment of COVID becomes more sophisticated.”