from the lowered-standards dept

RFK Jr. Amends ACIP’s Charter In Attempt To Exert More Control Over Panel Members

After RFK Jr. found himself getting a rebuke from the court system over his ACIP reorganization from last year, in which the courts issued a preliminary injunction on the vaccine schedule changes ACIP recommended and staying further work from the panel, I’ve been waiting for the government to appeal the order. That appeal has not yet come to be, much to my surprise. That being said, I’m not even sure on what grounds the appeal would be made, since the court’s decision centered on a fairly plain reading of the Administrative Procedure Act, which reads as though it was written for this exact situation.

Essentially, the APA makes it unlawful for, among other things, a federal agency taking action, reporting, or making conclusions in its work that are not based on evidence, are otherwise arbitrary or unsupported by evidence or fact. It also makes it unlawful for leaders of a federal agency to take actions that exceed their authority or statutory rights.

And perhaps it’s that last bit that RFK Jr. is attempting to work around by amending ACIP’s charter in ways that are both subtle and not so subtle. Let’s start with the subtle one:

Most notably, the current charter includes a lengthy sentence on membership terms that begins by stating that ACIP members “shall be selected by the Secretary …” But the renewal notice today includes a nearly identical sentence, with the change that ACIP members “shall be selected and appointed by the HHS Secretary.” The edit appears to enshrine Kennedy’s ability to unilaterally install ACIP members.

I can’t imagine how that slight change is in any way useful… other than to get past the part of the APA that limits actions by agency leaders to their authorized actions. This is essentially enshrining in the charter that RFK Jr. can pick his ACIP team personally and not only select the members, but fully placing them in their roles at his sole authority. In other words, this is rewriting the charter to more specifically grant him the authority to do what he already did last year. Whether a rewritten charter that has no checks and balances from the other two branches of governments is enough to satisfy the courts is an open question, but I have very serious doubts that it would.

And I don’t think that the more stark changes to the charter would do anything to change the court’s stance on the type of evidence-free changes that the ACIP panel previously made.

The membership criteria are also dramatically different between the current charter and today’s renewal. Currently, ACIP members “shall be selected from authorities who are knowledgeable in the fields of immunization practices and public health, have expertise in the use of vaccines and other immunobiologic agents in clinical practice or preventive medicine, have expertise with clinical or laboratory vaccine research, or have expertise in assessment of vaccine efficacy and safety.” These specific core requirements of expertise in immunization practices and vaccine science were central to Murphy’s findings that Kennedy’s appointees were unfit to be on the committee.

The renewal notice did not mention these criteria, but instead discussed members having a “geographic balance” (representing different parts of the country) and a “balance of specialty areas.” It provided a lengthy list of specialty areas that span a much larger swath of medical and scientific fields and potentially beyond. They include: “biostatistics, toxicology, immunology, epidemiology, pediatrics, internal medicine, family medicine, nursing, consumer issues, state and local health department perspective, academic perspective, public health perspective, etc.”

It didn’t seem to me that the court was relying on ACIP’s specific charter when putting a stay on its work in this new iteration of the panel, however. Put another way, if the charter was instead written to state that ACIP “should be staffed by a group of bumblefucks that have all kinds of knowledge that have little to nothing to do with immunizations”, I don’t think the courts would state that all is now well with the appointments of said bumblefucks.

What this charter really does is turn ACIP, a panel that is specifically tasked with recommendations on immunization schedules, into something completely different. Medicine, like nearly all sciences, is a highly specialized endeavor. You don’t go to a surgeon to advise you on a cancer diagnosis. You don’t see a pediatrician to address your elderly mother’s varicose veins. And you don’t generally need input from consumer representatives and the like to chime in on immunization schedules.

Unless you’re being led around by the nose by your grifting partners in the anti-vaxxer crowd, that is.

Some of the changes in the renewal may stem from a push made by an anti-vaccine group close to Kennedy. The group is Informed Consent Action Network (ICAN), headed by Kennedy’s anti-vaccine ally Del Bigtree, who is working with Aaron Siri, a lawyer who worked on Kennedy’s failed presidential campaign and has filed numerous lawsuits seeking compensation for alleged vaccine injuries. Siri is also notable for petitioning the Food and Drug Administration to revoke the polio vaccine.

Last month, ICAN urged Kennedy to revise ACIP’s charter, and Siri’s law firm provided a draft, complete with track-changed text, of what they want for the new charter. The draft states that ACIP members should have expertise in any area “deemed relevant by the Secretary.” But, it specifically states that “At least two members shall have direct and substantial experience advocating for and/or treating those injured by vaccines.”

We’ll see what comes next, but I don’t expect Kennedy to take the loss and quit with his antics. He will try again and again, whether it’s appealing the court decision or attempting to fashion loopholes such as this.