The state board that oversees licensed Tennessee physicians voted during a special session Tuesday to remove a policy from its website stating that physicians who create or spread COVID-19 vaccine misinformation or disinformation could face disciplinary action - but members said the policy itself still stands.
During a Sept. 21 meeting, the Tennessee Board of Medical Examiners - a 12-member board that's appointed by the governor and responsible for disciplining physicians who violate practice standards - voted to adopt a policy based on a statement from the board of directors of the Federation of State Medical Boards, which is supported by leading medical organizations and says licensed physicians "have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health."
The board's policy said that Tennessee physicians who "generate and spread COVID-19 vaccine misinformation or disinformation" risk suspension or revocation of their medical licenses in the most extreme cases.
Tennessee Board of Medical Examiners President Dr. Melanie Blake, a Chattanooga-based internist, said the board called a special meeting Tuesday "out of an abundance of caution" based on a new state law signed by Gov. Bill Lee on Nov. 12 that states any disciplinary process implemented by a health-related board "regarding the dispensing or prescribing of medication for COVID-19" must go through the formal rule-making process.
Francine Baca-Chavez, deputy general counsel for the Tennessee Board of Medical Examiners, told the board Tuesday that "there was nothing wrong or erroneous with the board adopting such a policy," but the board should decide whether to remove the policy from its website given the new law.
"We are not here today to ask the board whether the new law conflicts with the policy that you adopted. The board cannot interpret the new law, because the new law is not found in your statute. The interpretation of the statute rests solely with the Attorney General's Office. So the discussion today is solely whether this board wishes to remove the policy from the state's website," Baca-Chavez said.
Board members voted 7-3 in favor of removing the policy online and then allowed a brief public comment period during which three physicians spoke against Tennessee's new COVID-19 law and the impact of politics on their profession.
In response to the public comment, board member Dr. Phyllis Miller, a Chattanooga-based gynecologist, clarified that the board's vote didn't rescind its misinformation policy but simply removed it from the website.
"Our charge is to protect the health and safety of the citizens of Tennessee. That's what our policy does. We put it on the website simply to inform our physicians, and we voted only to take it off of our website," she said.
Since the policy was posted, State Rep. John Ragan, R-Oak Ridge, has written several letters to the board asking for it to be removed. Ragan told Blake she would need to appear before the General Assembly's Government Operations Committee if the board failed to take the policy down.
After the board's meeting in September, Ragan said he received phone calls from practitioners across the state who were afraid their licenses would now be in jeopardy.
"I'm not quarreling with the idea that we should have some kind of public-level protections for people who are putting out unscientific information. However, if you're going to do that, you've got to give people an opportunity to defend themselves by clearly defining the rationale in the policy," Ragan told the Times Free Press after Tuesday's meeting, adding that one of his biggest issues with the policy is that it didn't define "misinformation" and "disinformation."
In order to implement new rules, Ragan said government agencies must go through the formal rule-making process - including appearing before the Government Operations Committee, which he chairs.
"As long as [the board is] reprimanding within the confines of the rules that are published and approved, I have no problem. They just have to follow the law," Ragan said, adding that "since they have apparently withdrawn that policy, my questions become moot."
During Tuesday's meeting, board member Dr. Samantha McLerran cited Tennessee law, which states the board has the power to discipline physicians for "unprofessional, dishonorable or unethical conduct" as well as for "making false statements or representations, being guilty of fraud or deceit in obtaining admission to practice, or being guilty of fraud or deceit in the practice of medicine.
"I think that misinformation statements in regards to COVID fall under all of those things," McLerran said.
Grant Mullins, general counsel for the Tennessee Department of Health, said after the board's vote he was not aware of any board removing a policy from its website but not rescinding it.
"That would be a new thing. I would urge the board to either rescind the policy or keep it and have the website reflect what is actually on the books, because we have an obligation to maintain a public record of what the board's rules and policies actually are," Mullins said.
Blake said that the only request the board received was to delete the policy from its website. Board Vice President Dr. Stephen Loyd said, "with all due respect, Mr. Mullins, we've broken new ground on my time at the board with a lot of things."
Rather than calling a new vote, the board voted to adjourn its meeting.
Contact Elizabeth Fite at efite@timesfreepress.com or follow her on Twitter @ecfite.