Illinois Medical Board Denies FOIA Request for COVID Docs

The Medical Board of the Illinois Department of Financial and Professional Regulation (“IDFPR”) published a notice threatening disciplinary action against medical providers’ licenses for COVID-related issues, but thus far has failed to provide much justification for its threats.

IDFPR Notice Regarding COVID Misinformation, Masks, Ivermectin

In late 2021, the Illinois Department of Financial and Professional Regulation (“IDFPR”) Division of Professional Regulation (which regulates practice of professions including medical professionals) sent out an undated “Notice that Advice or Treatment Regarding Covid-19 Must Conform with Evidence-Based Medicine and Standards of Care” (the “Notice”). This Notice “reminded” health care professionals that advice and treatments provided to patients must conform with evidence-based medicine and appropriate standards of care. It threatened those who did not meet those standards with potential disciplinary action.

Among the transgressions that the IDFPR believed may justify disciplinary action against a medical provider’s license included:

1. Providing mask exemptions to individuals with whom no clinician-patient relationship has been established and in whom there is not a medical justification (per CDC guidelines) that justifies such an exemption. The IDFPR deemed such actions as “violations of [a practitioner’s] respective licensing Act.”
2. Prescribing ivermectin for COVID. The IDFPR stated that because ivermectin is neither “authorized or approved by the FDA,” and because the CDC has reported “severe illness associated with use of products containing ivemectin to prevent or treat COVID-19” that a healthcare professional who prescribes ivermectin against the CDC recommendations “may be subject to discipline.”
3. Dissemination of misinformation. The IDFPR followed the lead of the Federation of State Medical Boards and several professional organizations (including the American Board of Family Medicine, American Board of Internal Medicine, and American Board of Pediatrics) in stating that “providing misinformation about a lethal disease is unethical, unprofessional, and dangerous.”

The Notice requested that anyone who is aware of a health professional’s “dissemination of misinformation or practice inconsistent with current state and federal guidelines” file a complaint with IDFPR.

Freedom of Information Act Request to Illinois Medical Board Regarding COVID Notice to Healthcare Providers

Threatening to take disciplinary action against a healthcare provider’s license because that provider chooses not to follow CDC guidelines or is deemed to have disseminated “misinformation” is a serious matter. Medical licenses are considered property and are protected by Due Process, so the IDFPR’s threats to take adverse action against a physician’s license could be considered equivalent to threatening to take adverse action against someone’s home or other property because that person didn’t follow guidelines or was deemed to have spread “misinformation.” CDC guidelines are just that – guidelines. Those guidelines by no means establish a standard of care. Similarly, the concept of “misinformation” is so vague that without further guidance, the medical board could accuse anyone making an affirmative statement of spreading misinformation even if there is a good faith basis for making such a statement. Finally, there is substantial evidence showing that ivermectin reduces mortality, ventilation, ICU admission, hospitalization, recovery, cases, and viral clearance in patients with COVID. See https://c19ivermectin.com/. Based on the improvement in patient outcomes shown in multiple studies of patients receiving ivermectin for COVID, discouraging physicians from prescribing ivermectin for COVID by threatening adverse licensure action against them could conceivably result in patient harm.

Because the disciplinary actions threatened in the Illinois Medical Board’s Notice about COVID misinformation and treatments had the potential to indirectly cause patient harm, I sent a Freedom of Information Act request to IDFPR seeking the following information:

1. All information upon which IDFPR relies in justifying mask use for prevention of the spread of COVID-19. If IDFPR is relying in any way upon CDC guidelines, please provide all information regarding IDFPR’s determination whether the construction of a mask (i.e. cloth vs. surgical vs. N95 vs. PAPR device) is in any way indicative of whether that mask will prevent spread of COVID-19.
2. All information upon which IDFPR relies in alleging that “unapproved” or “off-label” use of a medication may be a potential cause for disciplinary action.
3. Any information upon which IDFPR relies in contradicting the Federal Food and Drug Administration statement that “once the FDA approves a drug, healthcare providers generally may prescribe the drug for an unapproved use when they judge that it is medically appropriate for their patient.” See https://www.fda.gov/patients/learn-about-expanded-access-and-other-treatment-options/understanding-unapproved-use-approved-drugs-label.
4. All information (including reference to all medical studies reviewed) in IDFPR’s possession that in any way links “reports of severe illness associated with use of products containing Ivermectin” (as stated in the Notice) to ivermectin prescribed by a medical provider and taken by the patient in prescribed doses.
5. All information (including reference to all medical studies reviewed) upon which IDFPR relies in any inference that ivermectin has no benefit in treating COVID-19.
6. All information (including reference to all medical studies reviewed) that IDFPR has reviewed on the toxic effects of properly prescribed ivermectin other than the August 26, 2021 CDC “official health advisory.”
7. Any information upon which IDFPR relies in stating acting in a manner inconsistent with a CDC recommendation is sufficient to subject a licensee to discipline (as stated in the Notice).
8. Examples of “misinformation relating to COVID-19” (as used in the referenced Notice) for which IDFPR has instituted disciplinary action against a licensee or for which IDFPR would consider instituting disciplinary action against a licensee.
9. All formal administrative hearing complaints filed by the Department against a licensee or registrant, or unlicensed person or entity relating to “misinformation relating to COVID-19” (as used in the referenced Notice) (pursuant to 2 Ill. Admin. Code §1326.210 (d)).
10. The identities of each and every Board member and IDFPR staff member consulted in creating the Notice or who created content for the Notice.

Illinois Freedom of Information Act Requirements on Public Entities

Under the Illinois Freedom of Information Act (5 ILCS 140/1 et seq), a public entity has 5 business days to respond to a request for disclosure of public documents. The time to respond to a FOIA request may be extended by an additional 5 business days for several reasons including:

1. the requested records are stored in whole or in part at other locations than the office having charge of the requested records;
2. the request requires the collection of a substantial number of specified records;
3. the request is couched in categorical terms and requires an extensive search for the records responsive to it;
4. the requested records have not been located in the course of routine search and additional efforts are being made to locate them;
5. the requested records require examination and evaluation by personnel having the necessary competence and discretion to determine if they are exempt from disclosure under Section 7 of this Act or should be revealed only with appropriate deletions;
6. the request for records cannot be complied with by the public body within the time limits prescribed by subsection (d) of this Section without unduly burdening or interfering with the operations of the public body;
7. there is a need for consultation, which shall be conducted with all practicable speed, with another public body or among 2 or more components of a public body having a substantial interest in the determination or in the subject matter of the request.

Failure to provide the requested documents within the listed time limits is considered a denial of the request under 5 ILCS 140/3(d).

Follow Up to the Illinois Medical Board COVID FOIA Request

I received a late response from Haley Lowrance, Assistant General Counsel for the Medical Board, acknowledging IDFPR’s receipt of my request and stating that IDFPR would respond by February 22, 2022.

By the end of March, the Illinois Medical Board had failed to produce any COVID documents related to this FOIA request. Because FOIA treats failure to produce documents as a denial of a request, IDFPR is legally considered as having refused to provide additional substantiation for threatening licensure action against Illinois medical providers. Alternatively, IDFPR simply may have an inadequate basis for the actions it threatens in its Notice and does not want to admit that fact.

The Illinois Freedom of Information Act allows a person to sue a public entity that denies access to records in the public entity’s possession. If the person wins the lawsuit, the public entity must pay for the person’s attorney’s fees and costs. Under 5 ILCS 140/11(a), any person denied access to inspect or copy any public record by a public body may file suit for injunctive or declaratory relief. Under 5 ILCS 140/11(f), if a person prevails in such a lawsuit, the court is required to award that person reasonable attorney’s fees and costs. In addition, under 5 ILCS 140/11(j), if a court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court is required to impose an additional penalty of between $2,500 and $5,000 for each occurrence and may impose an additional penalty of up to $1,000 for each day the violation continues.

I drafted and filed a COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF against IDFPR requesting that the circuit court order IDFPR to comply with the Illinois FOIA and requesting that the court order IDFPR to reimburse me for attorney’s fees and costs associated with creating, filing, and pursuing the FOIA request. I’m also requesting that the court impose a penalty on the IDFPR because it willfully and intentionally failed to comply with this FOIA request.

End Notes

The issue in this case and in the Illinois Medical Board’s actions is not whether ivermectin should be prescribed for COVID or whether physicians should be allowed to spread “misinformation” about COVID (however that term is defined). I don’t think that anyone should spread demonstrably false statements and I think that those who do so should be called out on those statements. However, as we all know, the practice of medicine is rarely a certainty. The progression of science demands that we have scientific debates on every topic and that we continually question conventional dogma.

Consider the story of Dr. Ignaz Semmelweis and what was later labeled the “Semmelweis reflex.” Semmelweis noted a 90% decrease in postpartum infections when physicians washed their hands with a chlorine solution between patients. Medical opinions at the time related postpartum infections to causes such as dietary issues, unclean bowels, emotional trauma, pressure exerted on adjacent organs by the shrinking uterus, and atmospheric influences. Many medical visionaries of the time (including Rudolf Virchow – remember Virchow’s Triad and Virchow’s node?) ridiculed Semmelweis because he had no plausible explanation for his findings (germ theory had not been developed at the time). Some physicians were offended at his suggestion that a gentleman’s hands could be unclean. Despite consistently showing a decrease in maternal mortality, Semmelweis’ research was largely ignored. Semmelweis became increasingly more vocal in his assertions about the dangers of “cadaverous particles” and was eventually committed to an asylum where he died from an infected wound. It was not until years later that Pasteur and Lister further developed hygienic technique.

A threat to discipline scientific debate – especially when accompanied by little if any scientific basis for that discipline – leads to fewer scientific advances and may paradoxically lead to patient harm.

Due process also demands that medical providers receive sufficient notice of and explanation of alleged transgressions before being disciplined. Physicians spend hundreds of thousands of dollars and more than a decade of education to obtain a medical license. Substantive due process requires that providers not be forced to guess at why they may be disciplined.

The FOIA request that IDFPR refused to answer simply requests a basis an an explanation for the Illinois Medical Board’s position. If IDFPR has a good faith basis for threatening disciplinary action against medical practitioners’ licenses in its Notice, why would IDFPR deny the public access to that information?

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See this post for a summary of a different case in which the Oregon Medical Board was sued for suspending a physician’s license due to COVID-related issues.