Medical Marijuana and the Physician Practitioner

In Pennsylvania medical marijuana is almost here.  Business licenses have been issued, dispensaries are being built, and physicians are getting approved as “Practitioners”.  Who will be their patients and how will dispensaries attract patients are unanswered questions as of yet.
The new regulations do set forth very specific proscriptions about who can certify a patient, which patients can be certified to receive a medical marijuana card, and the extent to which certifying practitioners are allowed to participate in this new business space.  This blog will discuss some of these issues.
Firstly, only physicians registered and approved by the Department of Health (“DOH”) as “Practitioners” may certify a patient to receive medical marijuana.   To qualify, a Practitioner must have an active, unrestricted medical or osteopathic license in the Commonwealth of Pennsylvania issued pursuant to the Medical Practices Act or the Osteopathic Medical Practice Act.  Only the DOH determines if Practitioners are qualified to treat patients with one or more serious medical conditions. These conditioners are not listed in the regulations.
To become a DOH Practitioner pursuant to medical marijuana regulations the physician must take a four hour training course. The training course shall include important responsibilities of Practitioners under the Medical Marijuana Act, general information regarding medical marijuana under federal and state law, the scientific research regarding the risks and benefits of medical marijuana, and recommendations for medical marijuana as it relates to the continuing care of pain management, risk management opiate addiction, palliative care, overdosing on medical marijuana, informed consent, and other areas to be determined by the DOH.  1181.32.  All Practitioners must be familiar and compliant with the Prescription Drug Monitoring Program.  A physician must possess knowledge of best practices regarding medical marijuana dosage based upon a patient’s serious medical condition and the medical professional’s medical training and specialty.  These provisions, while very vague and ambiguous, are extremely extensive.
Once, a physician is approved as a Practitioner (which has not yet happened), what is the process they must follow to issue patient certifications (the medical marijuana card)? The physician patient initial or follow up consultation must be complete, in person, and documented in the patient’s healthcare records contemporaneous to the issuance of a patient certification.  Any medical marijuana certification can only be issued consistent with (AFTER REVIEWING) the patient’s Prescription Drug Monitoring controlled substance use history. That law is found at 35 P. S. 872.1-872.40. A violation of the monitoring law is a Drug Act violation.
These initial evaluations could become the lynch pin of future disciplinary action against rouge physician Practitioners.  Practitioners can not simply meet a patient claiming to suffer from “cancer”  or a “serious” medical condition and issue a patient certification.  The doctor patient consultation must be complete and extensive.  These patients must already have a “serious” medical condition.  Practitioners must secure documentation of such prior to or contemporaneous with the patient certification.  Up to date X-rays, MRI’s, biopsy results, specialist’s reports, prescription drug histories, and/or copies of a complete medical history file should be secured before issuing the patient certification.  The Practitioner who does not initiate a best practices for these initial patient consultations will expose themselves to unhappy patients (who expect their certification at the first consultation) and disciplinary action for practicing below the standard of care and in violation of DOH medical marijuana regulations.
Patient certifications require complete patient identifiers, along with the diagnosis, assumption of continuing care for the patient, and the length of time (not exceeding one year) that the marijuana treatment would be palliative or therapeutic.  1181.27.  The Practitioner must also recommend either a specific dosage or consultation with the dispensary employee to recommend dosage.   Importantly, Practitioners may not receive or provide medical marijuana product samples — suggesting their patients “try this” to “see how it works”.
Patient certifications are easily revoked.  Practitioners SHALL notify the DOH in writing if they know or have reason to know that one of their certified patient has recovered from their “serious” medical condition, the patient has died, or the medical marijuana use would no longer be therapeutic or palliative. 1181.28-29. The regulations allow a Practitioner to withdraw the issuance of a patient certification at any time, without any reason,  upon written to notification to both the patient and DOH. 1181.29.   This will be  interesting in practice how these provisions play out.  Cancelling a certification could generate patient complaints to DOH and subsequent DOH disciplinary action.  Hence, full compliance with all patient contact and documentation requirements to properly answer  a DOH – and possible Medical Board – investigation is paramount and prophylactic.  DOH will be vigilant against any medical Practitioner violating these regulations.
Once a patient receives DOH revocation notification, the same is entered in the electronic tracking system. Any subsequent distribution of medical marijuana to an uncertified patient shall be a violation of the Prescription Drug Monitoring program protocols and, potentially, the criminal laws of the Commonwealth of Pennsylvania.  Here is where the trouble for Practitioners lie.  Any improper certification will become a violation of the Drug Act, possibly a felony, thereby creating automatic license suspension issues.
Department of Health regulations allow for a Practitioner to be removed from the medical marijuana practitioner registry if a Practitioner’s medical license is inactive, expired, suspended, revoked, limited or otherwise restricted by the Pennsylvania appropriate medical board. 1181.26. Any physician subject to professional disciplinary action is subject to immediate or temporary suspension of their medical marijuana participation.  A physician subject to any professional disciplinary action (Pennsylvania of other state) may be removed for the Practitioner list.  Importantly, these provisions only require the initiation of disciplinary action, not any formal conclusion to a disciplinary action.  This is a huge provision allowing for emergent and possible automatic suspension from the program and medical license problems.   Stay ahead of the investigatory curve; document everything, practice with extreme ethical limitations, assume any patient in your medical practice is not really sick or is an undercover DOH officer recording your every word.
There is an anti-kickback provision in the medical marijuana regulations. 1181.31(a). The only fee for service a practitioner can receive is from an actual or prospective patient consultation.  Practitioners cannot accept, solicit or offer any form of remuneration from anybody associated with the dispensary in any manner. (No baseball tickets, diners, college tuition, cars, lunch, Christmas baskets.)  All fee for services must be properly schedule and posted.  As there is no insurance coverage for these medical services, receipt for payment in cash must provided and properly documented. Accepting credit card payments for these services could expose the Practitioner to federal banking violations. Revenues must be reported to avoid any state or federal tax evasion investigations.  Depositing this cash in the bank is a separate issue for a separate blog.
Practitioners are extremely limited to whom they can issue certifications.    Practitioners can not be a designated caregiver for a their own patient to whom the Practitioner issues a certification, may not issue a patient certification for themselves or a family or non family household member.  Practitioners may not advertise their services as a Practitioner who can certify a patient to receive medical marijuana. 1181.31(b)-(f). Practitioners will require continuing, aggressive management of their qualifications to ensure continued compliance with DOH medical marijuana regulations. A Practitioner under the Act cannot hold a direct or economic interest in a medical marijuana organization.
Any physician removed from the practitioner registry may not have asked electronic access to patient certifications, issue or modify a patient certification, or provide a copy of existing patient certifications to any person parentheses including a patient caregiver, or other medical professional, except in accordance with applicable law.
Call me to discuss setting up your practice or any potential disciplinary issues associated with your practice as a practitioner certifying patients to receive medical marijuana.

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Pennsylvania State and Federal Cell Phone and Car Searches Now With Out a Warrant

The Pennsylvania Supreme Court issued two important evidentiary decisions this week. The first decision focuses on the admissibility of drug evidence discovered after a warrantless automobile search. The second decision focuses on the admissibility of statements and other evidence gathered when police, with owner authority, listen in on drug transaction cell phone conversations.

The car search case is Commonwealth vs. Gary, 2014 PA Lexus 1119 (April 29, 2014). In this matter, Mr. Gary operated a motor vehicle in Philadelphia. He was pulled over due to excessive window tint. Upon approaching the car, the police smelled marijuana. The police asked Mr. Gary if there was anything in the car they should know about. He responded, “Some weed.” Mr. Gary was removed from the vehicle and placed in the patrol car, from which he later attempted to flee.

Pennsylvania automobile stop and search jurisprudence has long established that illegal window tint evidence alone constitutes probable cause that crime, a motor vehicle code violation, has occurred. This permits the police to conduct a motor vehicle stop. That is not the issue in this case. As well, additional probable cause of criminal activity is presented by marijuana odor and Mr. Gary’s legal blurt out that there is weed in the car. He was not detained and he was not under interrogation. Also, prior Pennsylvania Supreme Court precedent allows the police can take Mr. Gary out of the vehicle for any or no reason as a result of a lawful motor vehicle stop (the window tint).

As such, the car stop and initial contact with Mr. Gary is legal and has been for a long time. The unusual part of the Gary case is what the police did after Gary attempted to flee; they searched the vehicle without a warrant or consent, finding two pounds of marijuana in the trunk.

Mr. Gary filed a motion suppress in Philadelphia Municipal Court, which the court denied. He was found guilty of possession of marijuana with intent to deliver and given four four years probation. Mr. Gary appealed the case to the Philadelphia County Court of Common Pleas, which court affirmed the denial of the motion to suppress. Mr. Gary appealed to the Pennsylvania Superior Court claiming the search without a warrant was illegal. Superior Court agreed and reversed the conviction and vacated the evidentiary ruling in the case. The Commonwealth appeal the case to the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court spent a significant amount of time reviewing the long history of Pennsylvania case law regarding automobile searches. Without repeating all here,the court eliminated any exigent or emergency need prior to police being able to search a vehicle without a warrant. Rather, they simply said police office who possess probable cause to stop and search a motor vehicle may search that vehicle at the scene without a warrant, If the probable cause to which the police claim as a basis to stop the case is sufficient thereto, then it would be sufficient in a warrant. The level of probable cause may be tested in a court of law. Commonwealth of Pennsylvania police departments no longer are required to secure a motor vehicle and impound it and then wait to secure a warrant before any search.

Importantly, the case does not eliminate the legal requirement that the Police must possess reasonable suspicion of a motor vehicle code violation, probable clause of a motor vehicle code violation, or probable cause that a crime has been committed for which evidence of that crime may be located in the motor vehicle subject to search without a warrant. This test is a fundamental due process requirement imbedded in every state and federal constitution. Every person charged with a crime who possesses an ownership or privacy interest in the vehicle searched is still able to file a Motion to Suppress. The significant aspect of the Gary decision is only that the police no longer need to secure an impound the vehicle and wait to secure a search warrant. The court determined that the inherent mobility of a motor vehicle is a sufficient basis for the Pennsylvania Constitution to allow motor vehicle search without a warrant but based upon probable cause.

The second case issued by the Pennsylvania Supreme Court this week focuses on the police using modern-day telephonic techniques to intercept and utilize cell phone communications to investigate crime. The frequency and widespread use of cell phones and cooperating witnesses prompted the Pennsylvania legislature to amend the Pennsylvania Wiretap Act, 18 Pa. C.S.A. §5701. These amendments were effective in 2012. I have extensively written on the new law for Pennsylvania’s legal newspaper, The Legal Intelligencer. Pleases visit my website webpages under articles published for an extensive discussion on the amendments to the wiretap back. http://www.phila-criminal-lawyer.com/Publications/204101201Hark-2.pdf

Suffice it to say for the purposes of this blog that the Pennsylvania Supreme Court ratified the police conduct of listening in on cellular telephone conversations via speakerphone or ear plugs. The court also ratified police conduct of receiving the authority of confidential informant to participate in and impersonate the owner in a cellular phone to secure evidence. The police conduct does not require a warrant or judicial oversight. The police may utilize any and all information gathered from the cell phone conversations to investigate and prosecute individuals committing crimes. Any evidence gathered is admissible in a court of law.

The widespread use of cell phones prompted the case to reach the Pennsylvania Supreme Court. The Delaware County Court of Common Pleas precluded the use of any police evidence secured via cell phone, suggesting that those conversations were subject to Pennsylvania’s Wiretap statute. However, the Pennsylvania Supreme Court merely reviewed the 2011 amendments to the Wiretap Act, which specifically precluded cellular telephones as a device subject to the act. More importantly, the Supreme Court indicated that listening in on conversations with the authority of one of the two recipients was a wholly prescribed and anticipated idea that act authorized as an evidence gathering Technique.

Please call me to discuss the search of your vehicle, the taping of your cellular phone conversations, or any other evidentiary issues secured in your potential for prosecution.

States’ Legalization of Pot and How Pennsylvania’s refusal to Legalize Pot Effects You

Other states’ legalization of marijuana has had a huge impact on Pennsylvania residents. Pennsylvania has not taken any steps to legalize possession or personal use of marijuana.  Neighboring state’s legalization and lax federal enforcement has resulted in Pennsylvania authorities engaging in a heightened enforcement atmosphere, not relaxed one.

For example, recently a suburban Philadelphia doctor and his daughter were charged possession with intent to deliver marijuana (“PWID”) after discovering that they were growing marijuana in their house.  They were caught after the doctor began selling his home-grown marijuana to his patients. While marijuana may serve some medicinal purposes, easing or slowing the progression of glaucoma, Pennsylvania has yet to allow medical marijuana. As such, a Pennsylvania doctor’s possession, selling and illegal prescribing pot to his patients for a suggested medical purpose is illegal.

The number of plants possessed in the house is also a big issue. Twenty eight marijuana plants were seized from the doctor’s home along with cash and contraband.  These illegal plants in a personal residence being used for criminal purposes subjects the doctor’s Haverford Township home subject to forfeiture.  The house was being utilized to engage in a criminal enterprise.

Whether you agree or disagree with the slow legalization of pot in Pennsylvania, it currently is, and always will be, a crime to sell pot if you are not a properly licensed entity.  Eventually, there will be a significant regulatory scheme in place to in Pennsylvania to buy and possess personal use cannabis.  Look to California, Arizona,and Colorado for examples.  As such, a doctor will never be allowed to grow his own pot and sell it to his patients for his prescribed medical treatment.

On the DUI front, the Arizona Supreme Court recently rejected a marijuana DUI prosecution.   In that matter, an individual was charged with driving under the influence of marijuana because traces of THC remained in his bloodstream several days after he legally smoked marijuana. A blood test revealed the presence in his blood the cannabis metabolite carboxy – THC.   However, this chemical does not cause an impairment.  As such, absent an impairment, the Arizona State Supreme Court ruled the individual was not “incapable of safe driving”.  This is called the “impairment” rule — a person must be actually impaired to be guilty of the DUI offense.  The charges were dismissed.

Pennsylvania does not follow this rule.  Pennsylvania is a “per se” violation state.   Pennsylvania law only requires the mere presence of the cannabis metabolite in a Pennsylvania automobile operator’s blood during motor vehicle operation for a violation of 75 Pa C.S.A. §3802(d) to be found.  This rule does not matter if the operator of the car is a resident of another state.  If you drive on Pennsylvania’s roads, you are subject to Pennsylvania law.  Obviously, the car must be legally stopped or investigated for another motor vehicle violation, and the THC is discovered, before a guilty verdict may be found.   The same mere presence law applies to all Pennsylvania professional license cases and health care work place rule violation cases.

New Jersey and Arizona follow an impairment statute which requires an expert to testify that any illegal substances in the blood rendered the person “impaired” and not able to operate a motor vehicle safely.  Pennsylvania requires the government to only present a drug report showing the presence of the drug.  As such, in Pennsylvania a person could be found guilty of DUI if they legally use medicinal or recreational marijuana outside of Pennsylvania but is stopped in Pennsylvania for some motor vehicle violation and the stop results in a blood draw due to suspicion of DAI or DUI.
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The Pennsylvania licensing boards will follow Pennsylvania criminal statutes regarding possession and use of marijuana laws in Pennsylvania, not other jurisdictions. The lack of impairment will be irrelevant for any Pennsylvania licensing board investigation of illegal drug use or possession.  Please call to discuss your case.
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The Conflict between Legalizing Cannabis and the Professional Licensee

The wave of marijuana legalization is crashing across the country. I recently appeared on Art Fennel Reports, on the Comcast Network arguing against the legalization of the personal use of marijuana. I maintain this position in light of the extensive impact a positive blood test showing the presence of THC in one’s blood will have on the professional licensee.

In my television appearance my position rested solely upon the societal choice of selling and taxing cannabis to fund schools, similar to government support of gambling in the form of state lottery systems. I disagree with this type of regressive tax on our society’s neediest to fund government programs that wealthier individuals should support.  I also disagree with making cannabis more accessible to the children who will now attend school high on pot and be even less likely to learn or simply will not show up for school.  My position stands regardless for the fact that the war on drug has been lost. ( Importantly, everyone agrees the drug laws would not change for the illegal sale of cannabis. This means that incarceration levels and state level prison sentences would not be affected by legalizing personal use marijuana. )

As for the professional licensee (doctor, dentist, nurse, real estate agent, pharmacist, and/or ambulance tech) smoking cannabis or eating food made with marijuana will still present the THC drug in your blood.  Pennsylvania’s current driving after imbibing drug law, 75 Pa. C.S.A. § 3802(d), does not require intoxication or impairment to be guilty of driving while high. Getting high a day or two prior to a car crash or traffic violation that may/could evolve into a Pennsylvania DUI investigation could result in a blood draw showing THC in the blood. If the THC metabolite is present, one will be charged with DUI.

Importantly, if there is a car accident (either in the workplace and OSHA or the federal labor board investigates or after work hour on your private time) your blood may still be drawn. The presence of TCH in a licensee’s blood from private personal recreational cannabis smoking or eating, will also generate a State Board investigation. Obviously this investigation will be in addition to any criminal prosecution or work place employment related investigation.

Simply put, legally getting high on cannabis it is not worth the high cost associated with defending one against the state trying to revoke or discipline the professional licensee for such conduct.   The complications that arise from the two very simple scenarios overrides the benefits of legalization of marijuana. My prior blogs set forth the extensive administrative nightmare each license confronts when a state license board attempts to discipline or strip a licensee of their professional license.

Unfortunately, the people advocating for the legalization of marijuana do not consider the over lapping legal consequence the decades of civil penalties that have been erected to scare people into being safe in the work place (any work place with any type of license) and not show up at work (or use your professional license) high. It is these scare tactics and penalties that are are not being removed with the legalization of pot and with which a licensee may be confronted if caught on the “job” high.

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