By: Susan St. John
With the legalization of medical marijuana, I could not help but think, could a medical marijuana practice be the next “pill mill” and how could that be possible with the strict requirements set forth in Section 381.986, Florida Statutes. Turns out, only a handful of physicians are prescribing the majority of medical marijuana. While this may at first blush indicate a problem, keep in mind that marijuana, even medical marijuana is still outlawed under federal law and many physicians are not willing to risk a DEA license or possibly a state license to become a physician that certifies a patient for using medical marijuana. If a physician does become a qualified physician and issues medical marijuana certifications, certain practices and behaviors should be avoided.
A Practice with Similarities to a Pill Mill
In May 2019, Department of Health filed an administrative complaint against a “qualified physician” for basically over-certifying the use of medical marijuana. Pursuant to Section 381.986, there are only 13 medical conditions for which medical marijuana may be recommended. Of those 13 medical conditions, one is a bit of a “catch-all” as it is for medical conditions of the same kind or class as or comparable to a list of ten specific conditions, i.e., cancer, epilepsy, glaucoma, positive status for HIV, AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, and MS. This is where the physician ran into a problem.
The statute and rules require a physician to submit documentation supporting the physician’s opinion that the medical condition is of the same kind or class as one of the 10 specific conditions. The physician must submit clinical, medical or scientific data that shows the efficacy of medical marijuana for the same kind or class condition. Further, the physician must submit documentation supporting that physician’s opinion that the benefits outweigh the risks of medical marijuana use. The administrative complaint, in a nutshell, alleges that the physician failed to follow the statute, including failing to conduct a physical examination and full assessment of a patient’s medical history. The administrative complaint also noted that on average over an 18-month period, the physician saw approximately 253 new patients a month, with one month indicating the physician saw over 700 new patients. The number of certifications and new patients caused the Department of Health concern. Was the issuing of certifications purely profit motivated with patients being charged $299 for initial evaluation? The DOH alleges the physician’s patient evaluations, assessments and other practices were inadequate and did not meet statutory criteria. Further, the physician’s practice was located at the same address as a dispensary. Profit motivation and close proximity to the drugs: that sounds eerily similar to what drove pill mills. The DOH’s case against the physician is now before the Division of Administrative Hearings and goes to hearing in February 2020. This physician’s license could well be on the line.
And what happens if the physician is found to have violated the statute and is disciplined or possibly has his license suspended or revoked? Keep in mind that medical marijuana is still unlawful under federal law. So, it could be possible that the federal government could step in and prosecute this physician for “trafficking” or “facilitating trafficking” of marijuana. He might lose his DEA license or worse, his freedom. A recent statement by a US attorney in the Northern District of Florida provided that the federal government would not be prosecuting medical marijuana use or distribution made legal by Florida law, however, it also provided that, “in regard to marijuana that has not been declared legal and is not robustly regulated by the state of Florida … absolutely, we’re open for business. We are leaning forward.” Thus, if the physician is proven to have disregarded the laws of Florida, the federal government could decide to prosecute.
Staying Compliant with Florida Medical Marijuana Law
If a physician is a medical marijuana certifying physician or decides to become a medical marijuana certifying physician, it is vitally important that he or she adheres to Section 381.986. Performing an in-person physical and assessment is a statutory requirement (telemedicine visits are not authorized by statute for medical marijuana). Further, the physician should employ best practices, practicing within prevailing standards of care, and use prudent judgment in determining whether medical marijuana is in a patient’s best interest and whether the patient’s medical condition truly qualifies the patient for use of medical marijuana. Robust medical record documentation is a must! Similar to documentation required for prescribing controlled substances, a physician issuing certifications for medical marijuana should be able to definitively prove that he or she has followed statutory requirements and the guidelines set forth by the Board of Medicine and the Office of Medical Marijuana Use. The physician should never lose sight of the fact that statistics are maintained on how many patients the physician certifies and the conditions the physician certifies as qualifying for medical marijuana use. If the physician is certifying a higher percentage of patients with a “same kind or class” condition or even “chronic nonmalignant pain” (one of the 13 qualifying conditions), it’s a red flag (yes, there is a target on the physician’s white coat for such patterns). Stay compliant, stay out of trouble, avoid prosecution!