Monday, August 29, 2011

Humble Follows Through On Reporting Suspect Physicians

In a June 7 post, Arizoneout reported on Arizona Department of Health Services (ADHS) Director Will Humble’s outreach to physicians on the requirements for certifying Qualified Patients (QPs) eligible to use marijuana under the Arizona Medical Marijuana Act (AMMA).  While seeking to educate physicians, ADHS also warned then that it would monitor demographics and report physicians suspected of unprofessional conduct to their licensing boards.

Director Humble has followed through on his threat.  On August 19, 2011, Humble announced that he and his Chief Medical Officer, Laura Nelson, M.D., had written letters to the licensing boards of 8 physicians, 3 of them M.D.s and 5 of them naturopaths.  Humble did not identify the physicians in a post to his blog, but he did say that among them, the eight physicians accounted for nearly half of the 10,000 medical marijuana certifications ADHS has received since the program started taking applications in April 2011.

The certification form requires a physician to affirm that he has checked the QP’s profile on the Arizona Board of Pharmacy’s Controlled Substances Prescription Monitoring Program database.  Director Humble had identified 10 physicians who had issued more than 200 certifications each, and then checked with the Board of Pharmacy to see if the 10 physicians have been logging in and checking the database as they have attested.  The reports he got back from the Board of Pharmacy caused him to report that it appears that 8 of the 10 physicians were making false statements in their certifications.

According to a story in the August 20, 2011 Arizona Republic, one physician issued more than 1,000 recommendations, yet checked the database only 56 times.  Three physicians had never even accessed the database.  Humble said it was obvious the physicians were not acting “on the up and up.”

Friday, August 5, 2011

Ads for Pot Docs Proliferate

I am a fan of Phoenix New Times.  The alternative weekly has some hard-hitting reporting and covers stories that the mainstream local media sometimes ignores or gives superficial coverage.  So it is no criticism of the editorial content of that publication when I say I turned to its ad pages to see how Arizona physicians were handling their responsibilities under the Arizona Medical Marijuana Act (AMMA).

A couple of recent issues had two full pages of ads for medical marijuana related products and services.  Most of those ads promoted medical marijuana evaluations.   The going rate seems to be about $100 for certifications.

The ads feature clever phrases such as "Get Legal Now," and "Chronic pain qualifies you!"
Other ads feature smiling, attractive and predominantly female health care providers in white lab coats with stethoscopes draped around their necks.  The ads assure that services are "100% Privacy Guaranteed!!!"   There's even one ad offering a "compassionate special" -- refer five people and the renewal is 50% off.

Arizona employers need to know that it does not appear difficult for workers who want a medical marijuana ID card to find a doctor who will certify their need for one.

Thursday, August 4, 2011

Arizona Board Of Medicine May Lack Experts Qualified to Judge Pot Docs

In a June 7, 2011 post, I reported on Arizona Department of Health Services (ADHS) Director Will Humble's promise to report what ADHS judged to be unprofessional conduct by certifying physicians to the physician's appropriate licensing board.

As of now, that may be a futile gesture.  In a recent report by the Arizona Office of the Auditor General, one of those licensing boards, the Arizona Board of Medicine, reported that it expected to get an increase in complaints because of ADHS referrals of doctors who are not following ADHS rules.

The Board of Medicine expects to have "challenges" in handling these complaints.  That's because the way the Board of Medicine reviews complaints is by having staff doctors and hired consultants to review the case and determine whether the doctor's conduct met the professional standard of care. 

The staff doctors and consultants have to be qualified in the type of care at issue to judge the work of the doctor being investigated.  Because medical marijuana is an "emerging" practice area, the Board of Medicine is concerned that it may have a shortage of qualified consultants available to conduct the professional conduct investigations of pot docs.

That conclusion surfaced in the auditor's report, of which the overall finding was that the Arizona Board of Medicine needed to "improve staff doctor and medical consultant selection, medical consultant training, and problem resolution practices."

That doesn't give Arizona employers a lot of confidence that the Board of Medicine is going to be effective at keeping the word "medical" the prominent focus under the AMMA.

Wednesday, August 3, 2011

Federal Drug Testing Regs Only A Limited Shield To Transportation Employers From AMMA's Discrimination Ban

In a July 25, 2011 post, I began what I expect to be an ongoing examination of the parameters of the exemption to the Arizona Medical Marijuana Act (AMMA) for employers who would lose a monetary or licensing related benefit under federal law or regulations for failing to discriminate based on marijuana use.  That post concluded that the federal Drug Free Workplace Act applicable to most federal contractors and grantees actually did not conflict with the AMMA or give any employer the right to invoke the AMMA exemption if facing discrimination claims by registered Cardholders.

By far the biggest group of employers who may be able to claim the exemption are those in the trucking, railroad, airline and transit system industries, who are subject to federal drug testing regulations.  Those employers are required to test upon certain occasions that vary with each industry.  The regulations are very specific and flunk those employees who have a threshold concentration of marijuana metabolites in their urine that is no indication of marijuana impairment or recent use.

This is one clear case in which federal regulations require Arizona employers to discriminate against Qualified Patients (QPs) who otherwise would be protected by the AMMA.  The AMMA specifically protects QPs who test positive for marijuana metabolites from discrimination unless the federal exemption applies.  So employers in the regulated transportation industries can take action against a protected AMMA Cardholder on the basis of a positive drug test.

But the only action mandated by the DOT regulations is that the employer remove the employee failing the drug test from safety sensitive positions.  The regulations also state that the employer cannot return the employee to the safety sensitive position until the employee complies with a comprehensive treatment and education program and passes another drug test.

Arizona employers who have to comply with DOT drug testing requirements do not have to fire or otherwise discipline employees who fail drug test.  So the AMMA exemption does not protect the employer who fires or otherwise disciplines a QP for failing a drug test, even if the employer is subject to federal drug testing requirements.

The only real clarity for Arizona employers on the scope of the AMMA exemption is that a QP's prescription for medical marijuana does not authorize a medical review officer to give the QP a pass on the DOT drug test.  That is clear from the face of the regulations.  The DOT Office of Drug and Alcohol Policy issued a statement to reinforce that point back in October 2009, stating, "It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana."

So Arizona employers subject to the DOT regulations fall squarely within the AMMA exemption when they penalize an employee who is a QP by taking him or her out of a safety sensitive position.  Any other disciplinary action against that QP would not be protected and would subject an Arizona employee to potential legal liability.

Tuesday, August 2, 2011

Delaware Legislature Adopts Law Similar To AMMA

On May 11, 2011, Delaware became the 17th U.S. jurisdiction (16 states plus D.C.) to legalize the medical use of marijuana.  Delaware's law came through the legislative process, adopted by both houses of its state legislature and signed by the governor, while the Arizona Medical Marijuana Act (AMMA) came through voter initiative.

The Delaware law is very similar to the AMMA, however, because it is mostly the model act promulgated by the D.C.-based Medical Marijuana Project, a national advocacy group favoring medical marijuana.  It contains protections against employment discrimination identical to those in the AMMA.

Delaware employers have a year to get ready for legal marijuana in their workplaces, as the state won't begin issuing ID cards to Qualified Patients and Designated Caregivers until then.

I have started a blog roll for Arizoneout with the Delaware Employment Law Blog.  This pioneer in the world of state-specific legal blogs is edited by Molly DiBianca at fellow Employer Counsels Network member firm Young Conaway Stargatt & Taylor, LLP in Wilmington, DE.

The Delaware Employment Law Blog already has one post alerting that state's employers to what they are facing in the year ahead.  I'll be interested in what else they have to say as Delaware employers adapt to what we already are experiencing here in Arizona.

Monday, August 1, 2011

New York Times Endorses State Trend Toward Legal Medical Pot

On July 26, 2011, the Gray Lady herself, the New York Times, urged New York Governor Andrew Cuomo to champion a sensible and humane system for the medical use of marijuana by New York citizens.  This is a sharply different direction from that of the Obama Administration, as we reported in a July 21, 2011 post.

The editorial in what many regard as America's "newspaper of record" was prompted by the announcement from the Republican Governor of New Jersey and conservative darling, Chris Christie, that he was allowing that state's medical marijuana program to proceed.

New Jersey was the 14th state to legalize medical marijuana, by legislative action signed into law by former Democratic Governor John Corzine on his last day in office.  Governor Christie's position during the campaign was that he would not have signed the law into effect.

New Jersey's law is one of the nation's strictest, in part because of the narrow scope of qualifying medical conditions and in part because of the regulations issued after Governor Christie took over.  New Jersey also does not have the employment protections that the Arizona Medical Marijuana Act contains.

The state was moving forward with a system in which marijuana would be available to people licensed to use it only at six treatment centers throughout the state when the flurry of letters from federal prosecutors hit.  It was that flurry of letters that sent Arizona and our Governor Jan Brewer to federal court that caused Governor Christie to put New Jersey's program on hold and seek specific written guidance from the U.S. Department of Justice earlier this year.

Governor Christie never got his federal guidance.  Nevertheless, he decided to move forward based on his own informed judgment from seven years as a federal prosecutor.  He said:  "I don’t believe the United States Attorney’s Office in New Jersey, given the narrow and medically based nature of our program will expend what are significantly lessening federal law enforcement resources in the context of the federal budget, on going after dispensaries in New Jersey, our Department of Health or other state workers who are helping to implement this program."

The New York Times wants Democratic Governor Cuomo to follow Governor Christie's lead.  Governor Cuomo is on record against medical marijuana but is now reviewing the issue.  He should change his mind, according to the Gray Lady, because "there is no good reason to deprive patients with cancer or H.I.V. or Lou Gehrig's disease of the relief from pain or extreme nausea that could come from using marijuana."