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Med. marijuana lawyer: Health dept. can't deny cards over physician assistants

medical marijuana doctor holding bottle with green cross cropped.JPG
The Colorado Department of Public Health and Environment has announced that it may deny thousands of medical marijuana applications over questions about whether physician assistants did exams -- a policy CDPHE's Dr. Chris Urbina reiterated in a recent interview. But MMJ lawyer Rob Corry calls the action improper and argues that the department is tossing the applications too late.

The CDPHE put the applications on hold, some for months, after staffers noticed that certain medical marijuana recommendation forms featured signatures of both doctors and physician assistants. If the latter actually performed the examination leading to a recommendation, the department believes this action would violate state law calling for a bona fide relationship between doctors and MMJ patients. If that's proven to be the case, the CDPHE will deem such applications fraudulent and deny them. If there's ambiguity over the question of who did the exam, the applications will be rejected.

DrUrbina small.jpg
Dr. Chris Urbina.
This distinction is important. Patients whose applications are denied will have to wait six months to reapply, even if they've already been stuck in limbo for months, due to a clause in Amendment 20, the measure that legalized medical marijuana in Colorado. In contrast, patients whose applications are rejected can reapply right away, and additional fees will be waived.

Why use the term "denied" in some cases and "rejected" in others? Doesn't that punish some patients more severely than others without regard to whether they bear any responsibility or blame for the recommendation form issue? When asked this question, Dr. Urbina insisted that he was following the letter of the law, even though no document we've been able to find explains the distinction between "denied" and "rejected" the CDPHE is using.

For attorney Corry, however, other issues related to the department's policy are equally important. He represents one of the doctors targeted -- Dr. Frank Wright, who received a letter from the department questioning applications and his approach to offering recommendations. In a reply to the CDPHE, Corry takes issue with the department's interpretation. The entire document is on view below, but here's an excerpt pertaining to the double signatures:

Your letter claims the Physician Certification should "be signed by the examining DO or MD, and no one else." (Emphasis added.) There is no requirement in any Constitutional provision, statute, regulation, or policy prohibiting or invalidating a particular form if the physician's advice is bolstered by another professional. If the CDPHE is in fact "charged with maintaining the integrity of the medical marijuana application process," as your letter alleges, then bolstering the M.D.'s advice with that of another licensed professional only furthers that goal, and provides additional protections against incorrect diagnoses or human error. Medical diagnosis is a subjective art as much as a science. There is nothing wrong with a patient receiving a second opinion.

Moreover, Corry argues that state law and the Colorado constitution establish that a doctor's recommendation is as valid as a registration card when it comes to legally acquiring medical marijuana -- and the time it took for the department to act means its attempt to either deny or reject the applications is now null and void. His response addresses this assertion like so:

On information and belief based on communications with numerous patients, none of these applications have been denied by the Registry, so the application "shall be accorded the same legal effect as a registry identification card." Article XVIII § 14(3)(d). Thus all of these applications are now automatically approved by operation of law, without the need of any further action by the Registry. At this point, any denial on the Registry's part would be untimely and without legal effect, given the mandatory requirement that "[w]ithin thirty days of receiving the information referred to in subparagraphs (3) (b) (I)-(IV), the state health agency shall verify medical information contained in the patient's written documentation." Colorado Constitution, Article XVIII § 14(3)(c) (emphasis added).

When asked to summarize his take, Corry says, "The CDPHE has 35 days to deny an application. If it does not deny an application within 35 days, that application is automatically approved under law, and it's too late for the CDPHE to deny it. So I don't think they can deny a single application.

"The application is a registry card -- it's the functional equivalent of one, and the law treats it identically to a registry card. If the CDPHE decides not to issue a registry card, it doesn't matter, because what the patient holds in his hand is the same thing as a registry card. That's why I've advised Dr. Wright to continue practicing medicine full time, since he's under no restrictions."

More on Corry's take below.



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44 comments
MMC employee
MMC employee

MMC employee here. I would really like to know what the bottom line is here. I have called the MMR and spoken with several people at the MMED to get clarification on this issue. We have SEVERAL longtime patients who we have had to turn away because they have yet to receive their red card in the mail or, in fact, any information pertaining to the status of their renewal.

According to what I have been told by the MMED/MMR, we are subject to criminal charges if we sell meds to a renewing patient by accepting temporary paperwork. However, they said that we are able to accept temp paperwork for NEW patients only.

well behaved
well behaved

The Registryfirst tried to eliminate providers to do MMJ certifications by the conditionsand restrictions on a physician's license. This year the MMJ registry sendvague messages that they were going to void applications that were completedand signed by a PA or NP because the SB 10-109 states "(I) A PHYSICIAN ANDA PATIENT HAVE A TREATMENT OR COUNSELING RELATIONSHIP, IN THE COURSE OF WHICHTHE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT OF THE PATIENT’S MEDICAL HISTORYAND CURRENT MEDICAL CONDITION, INCLUDING AN APPROPRIATE PERSONAL PHYSICALEXAMINATION; INCLUDING AN APPROPRIATE PERSONAL PHYSICAL EXAMINATION;

Doyou really think a physician would be fraudulent working professionally withPA/NPs??

The factsare VITAL: Delegation of medical functions

From theDORA Board of Nursing site: Nurse Practice Act

In Colorado,the practice of professional nursing (including those listed on theadvanced practice registry) includes the performance of both independentnursing functions and delegated medical functions. The Board of Nursing (BON)considers RNs to be independent practitioners. http://www.dora.state.co.us/nu...

Dependentnursing function falls under delegated medical. CRS 12-38-103 (4) definesdelegated medical function to include the RN implementation of a medical plan.".a written plan, verbal order, standing order, or protocol - whetherpatient specific or not, that authorizes specific or discretionary medicalaction, which may include but is not limited to the selection ofmedication." The amount of physician oversight would be determined by thephysician and nurse involved in this process. http://www.dora.state.co.us/nu...

MedicalPractice Act:Rule 400 regarding PAs

4. Delegationof Medical Services. Delegated services must be consistent with thedelegating physician’s education, training, experience and active practice.Delegated services must be of the type that a reasonable and prudent physicianwould find within the scope of sound medical judgment to delegate. A physicianmay only delegate services that the physician is qualified and insured toperform and services that the physician has not been legally restricted fromperforming. Any services rendered by the physician assistant will be held tothe same standard that is applied to the delegating physician. http://www.dora.state.co.us/me...

And Policy:40-24 Title: Clarifying the scope of practice of Physician Assistants2-2010

PAs maylegally sign other documents and forms typically requiring a physiciansignature as authorized by the PA’s supervising physician and consistent withBoard of Medical Examiners Rule 400. http://www.dora.state.co.us/me...

Soas I see it, the MMJ Registry couldn't go after 1. the professional relationshipbetween the physician and a PA or NP who accepts a delegated medical function 2.they sent in law enforcement to at least 2 NPs/PAs who were doing evaluationsand trying to frame them and scare the physicians who work with them...but recentlyDr. Aquino-Villman and Dr. Mestas were acquitted for the same undercover policeapproach  3. They FINALLY decide to voidapplications over a second signature!     A fricking secondsignature!

Check the timeline….FACTSspeak. This iswhat has been happening. It is all making sense. No providers to docertifications...no patients to buy MMJ....industry in crisis....make the Fedshappy. Call yourlegislators, the Governor’s Office and the MMJ Registry COMPLAIN!   Support your physicians and physician’sassistants and nurse practitioners who are assisting patients through out the State access medications. WellDocs, MMAPA and others should be commended for serving us!    United we stand.

The Registryfirst tried to eliminate providers to do MMJ certifications by the conditionsand restrictions on a physician's license. This year the MMJ registry sendvague messages that they were going to void applications that were completedand signed by a PA or NP because the SB 10-109 states "(I) A PHYSICIAN ANDA PATIENT HAVE A TREATMENT OR COUNSELING RELATIONSHIP, IN THE COURSE OF WHICHTHE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT OF THE PATIENT’S MEDICAL HISTORYAND CURRENT MEDICAL CONDITION, INCLUDING AN APPROPRIATE PERSONAL PHYSICALEXAMINATION; INCLUDING AN APPROPRIATE PERSONAL PHYSICAL EXAMINATION;

Doyou really think a physician would be fraudulent working professionally withPA/NPs??

The factsare VITAL: Delegation of medical functions

From theDORA Board of Nursing site: Nurse Practice Act

In Colorado,the practice of professional nursing (including those listed on theadvanced practice registry) includes the performance of both independentnursing functions and delegated medical functions. The Board of Nursing (BON)considers RNs to be independent practitioners. http://www.dora.state.co.us/nu...

Dependentnursing function falls under delegated medical. CRS 12-38-103 (4) definesdelegated medical function to include the RN implementation of a medical plan.".a written plan, verbal order, standing order, or protocol - whetherpatient specific or not, that authorizes specific or discretionary medicalaction, which may include but is not limited to the selection ofmedication." The amount of physician oversight would be determined by thephysician and nurse involved in this process. http://www.dora.state.co.us/nu...

MedicalPractice Act:Rule 400 regarding PAs

4. Delegationof Medical Services. Delegated services must be consistent with thedelegating physician’s education, training, experience and active practice.Delegated services must be of the type that a reasonable and prudent physicianwould find within the scope of sound medical judgment to delegate. A physicianmay only delegate services that the physician is qualified and insured toperform and services that the physician has not been legally restricted fromperforming. Any services rendered by the physician assistant will be held tothe same standard that is applied to the delegating physician. http://www.dora.state.co.us/me...

And Policy:40-24 Title: Clarifying the scope of practice of Physician Assistants2-2010

PAs maylegally sign other documents and forms typically requiring a physiciansignature as authorized by the PA’s supervising physician and consistent withBoard of Medical Examiners Rule 400. http://www.dora.state.co.us/me...

Soas I see it, the MMJ Registry couldn't go after 1. the professional relationshipbetween the physician and a PA or NP who accepts a delegated medical function 2.they sent in law enforcement to at least 2 NPs/PAs who were doing evaluationsand trying to frame them and scare the physicians who work with them...but recentlyDr. Aquino-Villman and Dr. Mestas were acquitted for the same undercover policeapproach  3. They FINALLY decide to voidapplications over a second signature!     A fricking secondsignature!

Check the timeline….FACTSspeak. This iswhat has been happening. It is all making sense. No providers to docertifications...no patients to buy MMJ....industry in crisis....make the Fedshappy. Call yourlegislators, the Governor’s Office and the MMJ Registry COMPLAIN!   Support your physicians and physician’sassistants and nurse practitioners who are assisting patients through out the State access medications. WellDocs, MMAPA and others should be commended for serving us!    United we stand.

MMJ Timmy Top
MMJ Timmy Top

I think this is a great MMJ article! 

I admire the fact that someone is standing up for the MMJ patients that are, essentially, being screwed over by this denial/rejection thing.

I will definitely be referring everyone I know with this issue to this article, so that they can read about this MMJ lawyer's points against the action set forth by the CDHPE.

KaDargo
KaDargo

"Compared to marijuana, alcohol has higher risks for addiction, overdose, violence and related driving while intoxicated. Virtually the only measure by which alcohol use is more benign is in associated legal penalties."Read more: http://healthland.time.com/201...

hdmi
hdmi

Good post

Citizen Broke
Citizen Broke

I've completely wasted my time and money TRYING to go along with the state program. I've been ripped off. Urbina and the CDPHE are the ones guilty of fraud!

Young_And_Beautiful_90
Young_And_Beautiful_90

@a0eeb887bb93d7c719ae27da97e9c92d:disqus ...,.....WOW...Тhis is сrаzу...Мy friеnd`s sistеr mакеs 78/hr оn thе intеrnеt. Shе hаs bееn unеmрlоуеd fоr 11 mоnths but lаst mоnth hеr incоmе wаs 7985$ јust wоrкing оn thе РС fоr а fеw hоurs. Read about it here.........http://alturl.com/x97fj

Robert Chase
Robert Chase

Rob, rip Urbina from his guggle to his zatch!

Warrenedson
Warrenedson

What part of A20 allows for a PA to make a medical marijuana recommendation for a patient?  I loved that CDPHE was accepting PA's recs and that might open the door for some legal action  but ummmmmm..........

Cannadude
Cannadude

I would hope that a patient that is stuck in this situation (in the 6 month limbo between cards) would still have legal recourse in court. If not, this needs to be challenged. The legal concerns should be between the doctor and the state, and the person who needs and qualifies for medical marijuana should not have to wait 6 months.

Rev. B Baker
Rev. B Baker

(INSERT YOUR CONTACT INFO) (DATE) Medical Marijuana RegistryATTN DIRECTOR/FOR APPEAL OF DENIAL/REJECTION4300 Cherry Creek Drive SouthDenver, CO 80246-1530   medical.marijuana@state.co.us 303-692-2184 www.cdphe.state.co.us/hs/medic... WRITTEN NOTICE OF APPEAL ON DENIAL OR REJECTION (PURSUANT TO SUB. SEC. J) Dear Ma'am or Sir, This is my written notification to you and this department, stating I disagree with the denial/rejection of my redcard and thereby request a review and hearing where I can assert that the issues or facts of fraud or reason for denial lay squarely on the Drs and the Health Dpt; I am free of any wrong doing or illegalities; that I have the ailments that give me the right to a redcard; and that I was a victim of the fraud or wrong doing and in no way am I related or connected to the fraudulent or wrong activities and have qualifying ailments that are documented by a multitude of legally qualifying Drs wherefore I shouldn't and cant be punished in anyway especially like this by denying me multiple constitutional rights, like due process, the right to confront my accuser, Et cetera. Therefore removing any fault or liability on me the patient due to fraud and wrong doing by a professional Service and the State's Health Department, the fault also lands on the state and dr. for allowing and permitting the professionals to commit fraud and harm at the harm and expense of the debilitated or sick citizens in the state of Colorado. Sincerely,Name______________________Address___________________________REDCARD #_________________PHONE #___________________(print with pen)SIGNATURE_________________________

Muéstreme Sus Papeles!
Muéstreme Sus Papeles!

just boycott the registry already. are you people fucking kidding me? paying for a constitutional right!? really!? it's become nazi germany. Muéstreme Sus Papeles! Nein! Fick Dic, Du Blöde Stinkfotze! Lutsch' meine Eie!

at least that's how i feel. how about you?

Guesto
Guesto

Corry is kicking ass though, here, well done sir. 

Guest
Guest

So Corry is essentially saying the dispensaries should begin to honor our applications since registry cards are not being issued where applications have not been denied?

If he is correct than a that just raises more questions, that need to be addressed publicly by all camps. 

Will MMC's honor paperwork from Applicants who are being told to wait 6 months?

Will CDPHE acknowledge that since they did not deny the applications they are indeed approved?

Will CDPHE do an about face and issue cards to the people they just recently told to wait 6 months?

Or will that first question become a much more pressing issue as our "red card" system is compromised by bureaucracy and our doctor recommendations become our new licenses?

Guest
Guest

"The CDPHE put the applications on hold, some for months, after staffers noticed that certain medical marijuana recommendation forms featured signatures of both doctors and physician assistants. "This is complete BS - they have known ALL ALONG that these forms were signed by 2 people. tens of thousands of apps went through like this.

What Happened? Hickenlooper got into office and wants the med program stifled because he wants you to drink more beer.

TENS OF THOUSANDS of apps went through and were approved, just like the 4200! 

sadhu
sadhu

I am soooo pissed off at these idiot hicks steam is coming out of my ears and ass... 

I sent in my RENEWAL (my third year as a mmj patient) late Sept and now got my rejection because of two signatures from Well Docs (Dr Sujdak and a bitch PA)

I am 57 with Hepatitis C diagnosed 2005 I had a biopsy back then that caused my liver to now have consistent pain and need this Medication for pain and for sleep.

what is wrong with these assholes, both the State and the Doctors who scam sick people for money?

I am sending in my APPEAL this week...

we need to fight this shit, we are sick and tired of waiting for OUR MEDICINE!!!sadhu

well behaved
well behaved

An injunction was filed last week against the MMJ Registry by Rob Corry. There is a two week period for them to respond. In the meantime, caregivers can provide medications for patients, contact the provider and arrange another appointment with the physician. Folks in the rutal areas ar in a big bind as the physician may not want to return there, This is why NPs and PAs traveled to rural areas and did evaluations :To assist with patients access to Red Card services across the state and locally (until all the NPs and PAs were fired) very few other physicians in the State would/will do the evaluations.The cost of a physician provided evaluation on the W. Slope is close to $200.00, and at a hotel conference room, maybe in a car if near Aspen. The price in Denver metro area will now rise significantly as few clinics are open and a only a few physicians will do the evaluations.Again........no providers to do evaluations........No Red Cards............No industry.

High Country Caregiver
High Country Caregiver

The best course of action at this point is really just to ignore the CDPHE.  No need to get mad or even with something that is optional and your choice.  I hate the CDPHE and just won't deal with them, I have freed my mind and feel fine!

Robert Chase
Robert Chase

My understanding is that under Federal law, physician's assistants acting under the supervision of a physician are permitted to act in their place.

Coloski1
Coloski1

If Rob Corry is right, then you all owe Welldocs a big apology/ So quick to judge!!

Coloski1
Coloski1

We all need to tell the CDPHE to FUCK OFF!!!!!!!!!!!!!!!!!!!!!!!!!!!!

COLOSKI1
COLOSKI1

FUCK THE CDPHE!!!!!!!!!!!!!!!!!!!!!!!!

High Country Caregiver
High Country Caregiver

I think what Corry is saying is "FUCK THE CDPHE" don't send them anything.  It's free range after you see your doctor.  If a dispensary doesn't want to sell to you, find one who will, or a caregiver.

Coloski1
Coloski1

Fuck the Registry and the CDPHE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

CannaKid
CannaKid

I carry a written recommendation from my doctor with me at all times.  CDPHE will NEVER see it.  I also grow my own...

Interesting Take
Interesting Take

Not when it comes to Schedule I drugs and recommending them.  Re-read the article from about a week ago when they talked to the Colorado Director of AAPA.  

Also, this is in concern to State law, and not to federal law.  In A20, SB109, HB11-1043, it is always emphasized that it has to be a "physician" that makes the recommendation.  In each of these, a physician is defined as a doctor of medicine or doctor of osteopathic medicine.  At no point has a PA or NP been allowed to make the recommendations.

It would be one thing if the doctor was present when the recommendations were written and if the doctor actually signed off on the recommendation after the form was filled out.  Unfortunately, in the case of all of these in question, the doctor was not present and the form was either "pre-signed" or the signature was photocopied on to the form prior to the remainder of the form being filed out.  The sad thing is, that though this is not the patients' fault, they are being punished for decisions made by a group of greedy doctors. As far as the comments about "not needing to file for a registry card" - look again.  Re-read amendment 20.  (No, this is not pointed at you Robert, but to the others who say that it is not necessary to send it in to the State... I am just not interested in making multiple posts when I can put it all in one place just as easily.)   "(b) Effective June 1, 2001, it shall be an exception from the state's criminal laws for any patient or primary care-giver in lawful possession of a registry identification card to engage or assist in the medical use of marijuana, except as otherwise provided in subsections (5) and (8) of this section.""(3) The state health agency shall create and maintain a confidential registry of patients who have applied for and are entitled to receive a registry identification card according to the criteria set forth in this subsection, effective June 1, 2001."

 A patient who is questioned by any state or local law enforcement official about his or her medical use of marijuana shall provide a copy of the application submitted to the state health agency, including the written documentation and proof of the date of mailing or other transmission of the written documentation for delivery to the state health agency, which shall be accorded the same legal effect as a registry identification card, until such time as the patient receives notice that the application has been denied.

Seems pretty clear to me that in order for you to be afforded the protection of the "affirmative defense" to be in possession or to be using (distributing, selling, medicating with, growing, cultivating, etc.) of medical marijuana, you do need to send the proper paperwork and application in to the State.  

Concerned Citizen
Concerned Citizen

It is my understanding that under federal law, marijuana is illegal and neither physicians nor their assistants can have anything to do with it.

Marcus Gaede
Marcus Gaede

Have you viewed my Facebook message yet?  I really think you should try to get Montel's take on the matter.  Call 916 822 5699  If Montel is not in ask for  Michael Backes. 

Red
Red

that depends on what welldocs/Larry Einhorn/Lenny Sudjack knew and when. the truth is out there!

Robert Chase
Robert Chase

Urbina should have a swastika carved into his forehead, so that people would know who he is from a distance.

Robert Chase
Robert Chase

I don't now have enough information to plumb the issue of physician's assistants acting in doctor's stead; perhaps Warren or some other attorney will supply some.  No one is treating with the issue of whether the CDPHE has been accepting such applications heretofore -- that should be ascertained; it is impossible to believe that the eagle-eyes at the Department would not have spotted recommendations made by physician's assistants.  As to your statement that "in order for you to be afforded the protection of the "affirmative defense" to be in possession or to be using (distributing, selling, medicating with, growing, cultivating, etc.) of medical marijuana, you do need to send the proper paperwork and application in to the State", that is wrong.  Article XVIII, Section 14 draws a distinction between an exception from the State's criminal laws, which is contingent on being enrolled on the patient-register, and the establishment of an affirmative defense against any cannabis-related criminal charges, which is not.  Article XVIII, Section 14 (2) (a) states:  "Except as otherwise provided in subsections (5), (6), and (8) of this section, a patient or primary care-giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:  

(I) The patient was previously diagnosed by a physician as having a debilitating medical condition;   (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and   (III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section."

-- note that no interaction with the State is required in order to establish an affirmative defense.

Robert Chase
Robert Chase

I wouldn't -- and that is (still) not the topic under discussion; it is the Federal statute specifying the prerogatives and requirements of physician's assistants.  I am not an attorney, I only heard a physician's assistant make such a representation about Federal law, and I do not readily find a reference to such a statute.  You are an attorney -- instead of engaging in this weird banter, why don't you quote statute or assert that none such exists?

Guest
Guest

if a Doctor has a standard as to what conditions and what proof is required and his PA is working under his license, that PA is rendering his opinion. 

Warrenedson
Warrenedson

Why would you think that rules that apply to prescriptions apply to recommendations?

Robert Chase
Robert Chase

Huh?  You are reminding ME?!?  I have never described recommendations for the use of cannabis as prescriptions!

Warrenedson
Warrenedson

Can they "always" act in place under Federal law? Also keep in mind this is not a prescription but a recommendation.  

Robert Chase
Robert Chase

Yes, but cannabis' illegality is irrelevant to the issue of whether physician's assistants may always act in place of physicians under Federal law.

High Country Caregiver
High Country Caregiver

Not everything is so black and white around here Citizen, but green for sure ~~~~~~>

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