Under federal law, marijuana is a Schedule I banned substance, meaning that without a research permit or exception, it cannot be used or prescribed for any purpose. In recent years, however, a number of states, including Oregon, have “legalized” marijuana for medical purposes (and in fewer states, for recreational use). For a number of reasons, the Drug Enforcement Administration (DEA) has abandoned the enforcement of the federal drug laws as they pertain to the medical and recreational use of marijuana in those states that have declared it legal. Based upon my experience, however, I urge you not to become complacent when recommending or approving marijuana for medical use. Here’s why.
The Oregon Health Authority versus the Oregon Medical Board or: “it’s still the practice of medicine, dude.”
The Oregon Health Authority (OHA) sets out the statutes and rules applicable to the Oregon Medical Marijuana Program (OMMP) and further offers a wealth of relevant information and advice. See, e.g., http://public.health.oregon.gov/DiseasesConditions/ChronicDisease/MedicalMarijuanaProgram/Pages/legal.aspx. Be forewarned, however, that compliance with the OMMP will not necessarily satisfy the Oregon Medical Board when there is a complaint or discrepancy involving professional protocols or the standard of care. As one investigator recently put it, “it’s still the practice of medicine, dude.” In other words, it may be legal, but more may be required of you.
Do not confuse “legality” with the standard of care
The State of Oregon may have legalized marijuana, but the Oregon Medical Board regulates the practice of medicine and is particularly concerned with how you meet the applicable standard of care and/or other professional protocols or commitments that may apply in any given situation. Stated differently, in Oregon, the OMMP establishes the circumstances under which medical marijuana is legal, but the medical profession adds another layer – the standard of care – and it is the Oregon Medical Board that will ensure that the standard of care is met. The fact that you may be recommending medical marijuana consistent with the OMMP will not much satisfy the Oregon Medical Board if the standard of care requires more.
I recently discussed a few of the many mandatory reporting obligations imposed on physicians and nurses. Today I want to discuss the “dreaded yes questions.”
A dreaded yes question is a question you want to answer “no,” but truthfulness requires that you answer “yes,” hence the question is dreaded.
For example, last week, a physician asked me how to answer a boilerplate question found on many residency applications, and a nurse asked me to help her report a drug and alcohol-related arrest on her renewal application. The question on the residency application asks, “Is there anything in your past history that would limit your ability to be licensed or would limit your ability to receive hospital privileges?” To answer this question, one would need to know what kind of things limit the ability to be licensed, or to gain hospital privileges. Without relevant experience, this question will be difficult to answer. The renewal question for the nurse, involving drug and alcohol-related arrest and her renewal application, was much more straight forward.
License renewal applications and DUII arrests and convictions
I am often asked about the need to report driving under the influence of intoxicants (drunk driving or DUII) arrests and convictions, and less often about the need to report a drunk driving arrest that did not result in a conviction. One recent case illustrates the complexity of the various mandatory reporting requirements. I represented a physician who had been arrested, but was not convicted, for driving under the influence of intoxicants. The physician was licensed in three states. The phrasing of the question on the renewal applications was all important, and it differed state-by-state. One state required a conviction to be reported, but not a mere arrest. Another state required that the arrest be reported, regardless of whether there had been a conviction. The third state was a close-call case.
What to do with close-call questions on license renewal applications
Occasionally, the facts and circumstances, combined with the phrasing of the question on the renewal application, will make the answer too close to call with desired certainty. Is these cases, an experienced healthcare defense attorney can advise you on the risks of not reporting, versus the benefits of reporting to ensure compliance with your mandatory reporting requirements. An experienced healthcare defense attorney can also do something you should not, and that is to make a call to the right person at your licensing Board, in an effort to learn more, but without disclosing your name.
One final caveat about the failure to report
In my experience, those choosing not to report a reportable incident deeply regret that decision once the incident comes to the attention of their licensing Board. The failure to report simply adds another layer to the investigation and exposes you to additional scrutiny because your veracity is now in question.
As a licensed healthcare provider, you have mandatory reporting requirements
Upon your initial application for licensure, you will be required to answer a series of questions designed to disclose past conduct that may have an adverse impact on your ability to practice your profession. Thereafter, you have a continuing obligation to report specified incidents to your licensing Board, often within 10 days of the occurrence of the incident, or at the time of your license renewal.
The reporting laws are complex and nuanced. Although it is tempting to rationalize why the incident in question need not be reported, this is often a mistake, because the failure to report a reportable incident is itself a violation. Before you report, or decide not to report, you are encouraged to seek experienced legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.
For physicians, incidents subject to mandatory reporting include, but are not limited to, the following:
- Criminal convictions or felony arrests;
- Discipline by other state licensing boards;
- Loss of privileges, withdrawal, resignation, or limitation of practice; and
- Medical incompetence, unprofessional or dishonorable conduct, or physical incapacity
To get started, physicians should consult the following reporting statutes and agency rule:
For nurses, incidents subject to mandatory reporting include, but are not limited to, the following:
- A nurse imposter;
- Practicing nursing without a license;
- Arrest or conviction of a crime which relates adversely to the practice of nursing or the ability to safely practice nursing;
- Dismissal from employment due to unsafe practice or conduct derogatory to the standards of nursing;
- Client abuse;
- Conduct derogatory to the standards of nursing as defined;
- Any violation of a disciplinary sanction imposed on the licensee by the Board of Nursing;
- Failure of a nurse not licensed in Oregon and hired to meet a temporary staffing shortage to apply for Oregon licensure by the day the nurse is placed on staff;
- Substance abuse as defined in ORS 678.111(e); and
- Any other cause for discipline as defined in ORS 678.111.
To get stated, RNs and LPNs should consult the following chapter:
Mandatory reporting can be assisted by a healthcare defense attorney
As you can see, mandatory reporting can present complicated questions. I am frequently asked, “do I have the report this, and if so, how soon?” My initial reaction is usually accurate, but in almost all cases, I will look it up myself. The reason I look it up is that as a healthcare defense attorney, I represent too many professions (physicians, pharmacists, nurses, acupuncturists, etc.), and there are too many reporting requirements to commit it all to memory. Also, in close-call cases, accurate reporting requires some analysis, or you risk under-reporting or over-reporting. Under reporting (i.e., failing to report) exposes you to discipline and other problems with your licensing Board or other important institutions, while over-reporting (i.e., unnecessary reporting) exposes you to a process most licensed professionals prefer to avoid. So again, before you report (or decide not to), you are encouraged to seek competent legal counsel, to determine first if a report is in fact and law required to be made, and second, how best to make the report to minimize any adverse impact on you or your license.
This year marks ten years since the United States Supreme Court issued its opinion in the case of Gonzales v. Oregon (406 KB), decided January 17, 2006. In this case, the United States Supreme Court affirmed the Ninth Circuit Court of Appeals’ opinion (263 KB), which had earlier affirmed the federal District Court’s opinion (1.78 MB) enjoining former United States Attorney General John Ashcroft from prosecuting Oregon physicians and pharmacists.
Against the DEA, healthcare defense attorney seeks injunction
Normally, as a healthcare defense attorney, someone else, for example, a licensing Board or the Drug Enforcement Administration (DEA), initiates the litigation. In this case, however, in order to protect physicians and pharmacists throughout the State of Oregon, it was necessary that I become the plaintiffs’ attorney. I sued former Attorney General John Ashcroft and the DEA in federal District Court on behalf of a physician and a pharmacist who were threatened with federal criminal investigations, prosecutions, fines, and imprisonment. See Complaint (1.24 MB).
Important victory for physicians and pharmacists everywhere
The opinion by the United States Supreme Court is an important victory for physicians, pharmacists, and patients everywhere, because it establishes the precedent that the United States Attorney General may not define the scope of legitimate medical practice, and that the States, not the federal government, regulate the practice of medicine. Justice Kennedy, writing for the majority of the Court, concluded his 28 page opinion writing:
“The Government, in the end, maintains that the prescription requirement delegates to a single Executive officer the power to effect a radical shift of authority from the States to the Federal Government to define general standards of medical practice in every locality. The text and structure of the CSA show that Congress did not have this far-reaching intent to alter the federal-state balance and the congressional role in maintaining it. Gonzales v. Oregon (406 KB)(Kennedy, J.)”
This victory stands today – the injunction against the DEA is still in effect! This case is discussed in more detail on the appellate practice page of this website.
Pharmacist dispensed without a “legitimate medical purpose”
A Florida pharmacist was sentenced last week to 24 years in prison on multiple charges that include dispensing oxycodone without a “legitimate medical purpose.” The evidence against the pharmacist was summarized as follows: The pharmacist (1) accepted fake prescriptions from (2) customers who came in groups (3) from far distances to get (4) oxycodone. The prescriptions were written by (5) known suspect prescribers and (6) the patients paid a premium, in cash, for the oxycodone. In other words, the pharmacist failed to screen for the “red flags” of drug diversion. Here is a link to the story: http://www.pharmacytimes.com/news/pharmacist-to-serve-24-years-in-prison-for-illegal-oxycodone-dispensing.
The Oregon Board of Pharmacy expects pharmacists to screen for “red flags”
I can assure you from my work as a healthcare defense attorney defending physicians, pharmacists, and prescribing nurses against prescription drug charges by the Drug Enforcement Administration (DEA) that screening for red flags is expected of all prescribing and dispensing practitioners. Agreeable or not, screening for red flags is also important because whether a pharmacist screened for red flags will be considered by the Oregon Board of Pharmacy and DEA drug diversion investigators whenever there is suspected drug diversion. The Oregon Board of Pharmacy addresses screening for red flags on its website at: http://www.oregon.gov/Pharmacy/pages/index.aspx), and further links to an YouTube educational video: https://www.youtube.com/watch?v=WY9BDgcdxaM&feature=youtu.be. If you are an Oregon pharmacist, I encourage you to view this video.