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Board of Medicine
 
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Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry, and Chiropractic [18 VAC 85 ‑ 20]
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4/17/22  8:28 pm
Commenter: Michael J Schultz

Petitioner's Response to Comments - Part 1
 

As the petitioner who has submitted the proposed regulation, I feel the need for clarification and context on my initial proposal, and some much-needed responses to comments published in opposition.  There is quite a bit of unsupported statements out there made by parties in opposition to the petition claiming this petition will somehow “endanger patients,” by allowing individuals, not practitioners, to make the medical choice as to whether they must wear a mask or not.  I will attempt to call these comments out to point out the illogic or fallacy of their arguments.  There also is the issue of the Board of Medicine’s receipt of my petition and the actual language posted by the Board.  The Virginia Board of Medicine didn’t post exactly word for word what my petition originally proposed.  The Board paraphrased a good portion of my proposal, and changed my language in certain phrases, which I feel was dishonest. It did not reflect the actual proposed language, which I will repeat below.  In addition, the Transmittal Sheet as published also didn’t include the rationale behind why I feel this regulation is necessary, which provides much needed context and supporting background.  I do appreciate the comments on both sides, but as the petitioner, I feel that by not posting the rationale behind my proposal, the Virginia Board is deliberately withholding necessary supporting information critical to supporting my position. 

First, my original proposed language and the rationale.  This is word for word, Proposed Clause 5:

Original version: A practitioner shall not: “5. Prohibit, or refuse to provide medical care to, or consult with, a patient (or prospective patient) based upon the patient’s, prospective patient’s, family member’s, or authorized patient representative’s (including Parental Guardian’s) choice to not wear a mask.  A mask shall be considered any covering across the face that is intended solely as a means of potential infection control.”

The Board’s paraphrased version, made to appear that a patient is refusing to wear a mask: “(1) prohibit physicians, podiatrists, and chiropractors from refusing to provide medical care to patients or prospective patients if those individuals or their accompanying representatives refuse to wear masks.”

The distinction here is critical.  Under current Virginia state public health regulation and Executive Orders, there is no longer any public health crisis requiring an employer to mandate its employees, nor ordinary citizens, to wear masks as a condition of citizenship, let alone the ability to receive necessary medical care, worship at a religious institution, attend school, or to participate in commerce, for that matter.  The decision to wear a mask is that of the patient’s, prospective patient’s, or the family member’s alone.  A practitioner has no legal or ethical right to force or make decisions for the patient, especially if the patient does not have informed consent on the efficacy of masks. The decision is the individual’s right. My proposed regulation does not state that a patient is prohibited from wearing a mask if they choose; on the contrary, if they want to wear a mask, they are free to do so. But a practitioner has no legal authority under existing Virginia state law or Board of Medicine regulation to demand that a patient, prospective patient, or family member accompanying them do so, especially since this type of tyrannical behavior never was practiced or allowed prior to 2020, and definitely since all Executive Orders mandating mandatory masking in Virginia have now been lifted. 

One commenter claims that if a patient does not wear a mask, this somehow puts a practitioner somehow in a position under 18VAC85-20-29, Practitioner responsibility, that they are knowingly jeopardizing patient safety:  The commenter claims “A practitioner shall not knowingly allow subordinates to jeopardize patient safety or provide patient care outside of the subordinate's scope of practice or area of responsibility. Practitioners shall delegate patient care only to subordinates who are properly trained and supervised.” The commenter claims that “. . .  by forcing doctors to allow people refusing to wear a mask in to their practice, the would be knowingly requiring their subordinates to allow this practice. That would not only endanger the doctor, the other employees, but also the other patients.”  Given the fact that there is documented evidence that mask wearing actually can make a patient sick (https://www.sciencedaily.com/releases/2015/04/150422121724.htm; https://www.aier.org/article/the-dangers-of-masks/; https://www.aier.org/article/masking-a-careful-review-of-the-evidence/; https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7490318/), then how would a practitioner explain that forcing one to wear a mask is actually a net positive for the patient’s health, or is not putting the doctor at risk? If you demand that a patient wears a mask upon entry to your practice and will not treat a patient if they do not wear a mask, but in the process of that patient being required to wear a mask, they actually do get sick from wearing a face mask, how does that protect anyone? 

This practice however (forced masking as a condition of participating in commerce or receipt of medical care) continues to this day because all patients in many practitioners' offices are considered “guilty until proven innocent,” or unethically assumed to have COVID-19 and require them to wear a mask, without even asking if a patient has symptoms, or has previously had COVID-19, recovered, and now possesses natural immunity (a documented medical fact the FDA and Pfizer, manufacturer of one of the COVID-19 “vaccines,” have been forced to admit: http://Youtube.com/watch?v=5eJ5TIT6zvk).  Do practitioners demand every patient prior to entry into an office take precautions against the flu before they enter their practice?  Norovirus? Rotavirus? What about tuberculosis?  HIV? Pertussis?  Meningitis? Pneumonia? Strep throat? Each of these infectious diseases are highly contagious, but infection control practices to stop the spread of these diseases are not mandated by a practitioner prior to one receiving care, especially for care unrelated to infectious disease.

As a resident of the Commonwealth for the past 14 years, I can tell you first hand I never had to wear a mask as a condition of receiving care prior to 2020, and prior to 2020 I have had multiple outpatient surgeries, emergency room visits, doctor’s appointments, had the flu, attended children well child visits, my children’s births, attended physical therapy appointments, and had literally hundreds of interactions with medical staff and other patients, all while either being injured, sick, contagious, or healthy.  Not once was I forced to wear a mask, even during the height of raging flu seasons.

Patient autonomy must be respected.  Up until 2020, all practitioners in the Commonwealth respected that decision.  No practitioner has the authority to act as a defacto member of a Board of Health, as they have no legal authority to enforce a mask requirement that only the Board of Health, Board of Labor and Industry or the State legislature have the authority to enforce.  But sadly, this situation still remains today with practitioners (especially in Fairfax County), acting as defacto agents of the State or County Board of Health, continuing to demand patients wear masks as a “public health protection measure,” or claiming “it’s company policy” when no such evidence exists as to the efficacy of masking preventing one from contracting the virus that causes COVID-19, nor stopping the spread of the COVID-19 virus.  Despite unsubstantiated claims to the contrary from opposers of my petition claiming masks have been effective in stopping the virus, the evidence does not exist.

Proposed Clause 6

Here is the original text as I proposed, stating a Practitioner shall not:

“6. Enact, implement, enforce, or execute any practitioner-authored, insurer-required, or organizational policy, instruction, or guidance (including, but not limited to, guidance issued by the Centers for Disease Control, local County or municipality Board of Health, or Virginia Department of Health) that prohibits patients, prospective patients, family members, or authorized patient representatives to receive medical care based solely upon an individual’s choice to not wear a mask, as outlined in 5., above.”

The Board’s paraphrased version: “(2) prohibit physicians, podiatrists, and chiropractors from enforcing any requirements for patients, prospective patients, or patient representatives to wear masks to receive medical care, including when following policies of insurers or organizations or when following guidance issued by the Centers for Disease Control, local health departments, or the Virginia Department of Health;”

One can obviously see the difference in my proposal.  My proposal simply limits a practitioner from enacting, implementing, enforcing, or executing any practitioner-authored, insurer-required, or organizational policy, instruction, or guidance prohibiting patients, prospective patients, family members, or authorized patient representatives to receive medical care based solely upon an individual’s choice to not wear a mask.  The proposal does not claim outright that a practitioner cannot place some necessary restrictions on the receipt of care, for example, providing necessary body temperature screening.  However, given the fact that the State of Virginia has now revoked (as of March 23, 2022) the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, under Virginia Code 16VAC25-220, based on emerging scientific and medical evidence that the current widespread variants of the virus no longer constitute a grave danger to employees in the workplace, it logically follows that no practitioner can still retain or enact such outdated policies continuing masking from the previous finding of a grave danger, when the emerging scientific and medical evidence proves that a grave danger no longer exists.  If masks are now deemed not required for employees in the workplace by the State of Virginia, how can patients be subjected to a different standard by their practitioner, when they interact with those same employees on a daily basis? 

For background, commenters need to know that the Virginia Department of Labor and Industry on February 16, 2022, through the Virginia Safety and Health Codes Board, adopted a proposed finding that there is no longer a continued need for the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus that Causes COVID-19, under Virginia Code 16VAC25-220, based on emerging scientific and medical evidence that the current widespread variants of the virus no longer constitute a grave danger to employees in the workplace under Va. Code §40.1-22(6a), and as discussed in the U. S. Supreme Court’s decision in National Federation of Independent Businesses, et al., Applicants v. Department of Labor, Occupational Safety and Health Administration, et al.  The supporting public comment period has passed and is posted at https://townhall.virginia.gov/L/ViewNotice.cfm?gnid=2373.

Under Governor Youngkin’s Executive Order, the Virginia Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID-19, 16VAC25-220, which previously established requirements for employers to control, prevent, and mitigate the spread of SARS-CoV-2, the virus that causes COVID-19, among employees and employers, including provisions for employer mandatory masking, has now been repealed.  On March 22, 2022, the proposed revocation of that Standard was finalized.  The link showing the revoked standard is located here: http://register.dls.virginia.gov/details.aspx?id=10202.

The rationale that I originally proposed behind my petition is of utmost relevance, and so I post it here:

“These regulations are necessary due to the thousands upon thousands of examples in Virginia where patients and prospective patients were denied their right to necessary medical care solely because of their individual choice to not take the COVID-19 vaccine, or their choice to not wear a mask during a visit to a licensed medical practitioner or medical facility.  Both mask wearing and the vaccine have now been shown (based on years of peer-reviewed scientific studies and empirical data) to be largely ineffective in preventing contracting of the virus that causes COVID-19 disease, or in preventing transmission to others. Numerous studies provide the factual basis behind these statements:

https://www.lifesitenews.com/news/47-studies-confirm-inefectiveness-of-masks-for-covid-and-32-more-confirm-their-negative-health-effects

https://aapsonline.org/mask-facts/

https://www.cidrap.umn.edu/news-perspective/2020/04/commentary-masks-all-covid-19-not-based-sound-data

https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6936a-H.pdf
https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3949410
https://brownstone.org/articles/more-than-150-comparative-studies-and-articles-on-mask-ineffectiveness-and-harms/
https://lcaction.org/vaccine#cases

Prior to February 2020, no citizen in the Commonwealth of Virginia was required to wear a mask as a condition to receiving necessary medical care.  For example, no patients were denied treatment for the seasonal flu by a general practitioner or family doctor if they had not received a flu shot that year, or were not wearing a mask.  No pediatrician would deny treatment of a child for pertussis if they were not wearing a mask. Yet, unfortunately these instances surrounding COVID-19 occurred thousands of times across the Commonwealth within the past 2 years by practitioners, and still continue to happen to this day, even when all mask restrictions in the Commonwealth have been lifted by the Virginia Board of Health.  I myself am still required to wear a mask to see my surgeon for post-surgery follow up appointments after receiving ankle surgery in February 2022 here in Fairfax County, over 3 weeks ago, despite the Centers for Disease Control lifting most mask guidelines and states such as New York, Massachusetts, Florida, and Texas now having no mask mandates.  Why does Virginia still allow this?  I am a survivor of COVID-19 disease from August of 2021, and have recovered fully, with documented natural immunity through antibody testing.  My practitioner still will not accept any of that information as relevant, and assumes all patients as possibly infected (an unethical and unscientific practice, by the way), and therefore requires me to wear a mask in his office, even threatening patients (through administrative staff) with cancelling a necessary medical appointment if they do not comply, despite overwhelming evidence that masking does almost nothing to stop the spread of the COVID-19 virus or prevent transmission.  It is unconscionable that licensed practitioners, their subordinates, and administrative or office employees can still refuse to treat patients if the patient chooses to not wear a mask.  This discriminatory practice must end immediately.

One of the main principles of the Hippocratic oath is to First, Do No Harm.  Demanding that a patient wear a mask (when multiple, peer-reviewed studies documenting the adverse effects of mask wearing is well established), is harmful to a patient and violates patient autonomy.  It must be their choice to wear a mask, not mandated by an individual practitioner, when local and State Boards of Health have lifted masking restrictions for all business establishments. Patient autonomy and patient rights must be respected by that practitioner. 

It is also ridiculous and an outrage to patient rights that some licensed practitioners can still demand that patients, prospective patients, or family members accompanying them wear a mask as a precondition to receiving treatment, (and as a consequence, can refuse or deny treatment for a patient when they exercise their right to not wear one), when it is now state law in Virginia that no child who attends a school is required to wear a mask (Senate Bill 739).  If a child has the legal right to not have to wear a mask while in a school environment, of which that child is potentially indoors for periods of up to 6-8 hours a day, five days a week, in close proximity to potentially hundreds of other children each day, how can the Virginia Board of Medicine still allow medical practitioners to continue these blatantly discriminatory and coercive practices of mandatory mask wearing, or demand proof of a COVID-19 vaccination in order for a patient to obtain medical care? How do children now have this right, but somehow patients now do not? 

Requiring a patient to wear a mask indoors for a doctor’s appointment, medical procedure, or for any duration of time in a medical facility (for example, as a visitor), was rarely, if ever required on a widespread, Commonwealth basis prior to 2020.  At this point continuance of these policies is nonsensical. The facts are clear: masks and the COVID-19 vaccine do not stop transmission, nor prevent transmission of the virus that causes COVID-19 disease.  The Virginia Board of Medicine has an obligation to put an end to unethical, coercive, and discriminatory practices by practitioners requiring mask wearing and demanding proof of vaccination as a precondition to receiving necessary medical care.”

CommentID: 121794