The process by which naturopaths provide authorization for patients seeking access to medical marijuana/cannabis is fraught with risk because many providers do not understand the limitations contained in the statute (Ch. 69.51A RCW). This is further complicated by the total failure of the new Naturopathic Board to promulgate regulations and educate their profession.
Not all healthcare providers are permitted to authorize medical marijuana. The authority is limited to MDs, MD physician assistants, DOs, DO physician assistants, NDs and ARNPs.
The statutes with which you must become familiar are RCW 69.51A.010 (Definitions), 69.51A.030 (Acts not constituting crimes) and 69.51A.040 (Compliance). You can access the full statute at http://apps.leg.wa.gov/rcw/default.aspx?cite=69.51A.
Below are the parameters used through the statute to contemplate an acceptable process for issuing medical marijuana authorizations:
1. Is the provider a designated healthcare professional under RCW 69.51A.010(2)?
2. Is the requesting patient a qualified patient under RCW 69.51A.010(4)?
3. Does the qualified patient suffer from a terminal or debilitating medical condition as defined by RCW 69.51A.010(6) or any other condition approved by the Medical Quality Assurance Commission in consultation with the Board of Osteopathic Medicine? (TRAP: The foregoing must to be adequately documented.)
In addition to the foregoing, RC 69.51A.030(2) requires a provider to demonstrate the following:
1. A newly initiated or pre-existing documented relationship exists between the patient and healthcare provider.
2. The healthcare provider is a primary care provider or specialist.
3. The authorization relates to the diagnosis and ongoing treatment or monitoring of the terminal or debilitating condition (TRAP: A solitary encounter with the patient with no real follow-up or monitoring will NOT qualify per the Naturopathic Board.)
4. Completion of an “as appropriate” physical exam based on the patient’s condition and age (TRAP: the Naturopathic Board expects you to perform a comprehensive exam lasting 1-1.5 hours, although it has not promulgated any rule to that effect.)
5. A statement documenting the qualifying condition for which the patient may benefit from cannabis.
6. Documentation showing that the patient has been informed of alternatives to cannabis.
7. Documentation stating that measures other than cannabis were attempted to treat the qualifying condition (TRAP: The Naturopathic Board expects you to either take a comprehensive history or have their medical records in hand, although it has not promulgated any rule to that effect.)
Even when you comply with all of the foregoing details, you can still be sabotaged by engaging in any financial impropriety outlined in RCW 69.51A.030(2)(b), including having a practice which consists solely of authorizing medical use of cannabis.
Biting our tongues – Carrier pursues provider for over $200,000
In several instances, prior warnings regarding rebating, corporate structure and scope of practice have fallen on deaf ears because people do not know of anyone suffering loss from these types of errors. However, the landscape has changed over the last few years.
A local auto carrier, through outside counsel, has pursued at least two, and possibly more, Washington healthcare providers for (1) improper corporate structure; (2) hiring a physical therapist (scope); (3) referring to the physical therapist without appropriate disclaimers to the patient about his financial interest in the PT clinic, which compensated him for every referral; (4) hiring massage therapists as independent contractors but failing to properly disclose the financial compensation formula that rewarded them for every referral.
The basis for these claims is the state’s Professional Services Corporation Act, the enabling statutes for the provider defining scope, and lastly, the anti-rebating statute Ch. 19.68 RCW. The carrier has demanded six figure refunds. While there are procedural and substantive defenses, the underlying defects in structure and operations are troublesome. Defenses have not been battle tested in the courts.
It is therefore important that providers, whether employers or employees, understand the potentially far reaching consequences of not paying attention to state law. Truly, the devil is in the details.
Sex in the City
In September 2006, the Department of Health amended its policy regarding sexual abuse of patients and provided a far reaching definition of what would constitute a violation. A copy of the amended WAC can be obtained at http://apps.leg.wa.gov/wac/default.aspx?cite=246-16-100.
Any professional who comes into close and potentially intimate contact with his or her patients has to be incredibly mindful not only of intentional actions, but also the potential of misunderstanding. Sexual misconduct is a boundary violation which is determined by the perception of the patient not the provider.
1. Do not uniformly allow patients to remove all clothing. While some modalities may require more direct skin contact or extensive body contact, as a general rule, nudity should be limited particularly in any male-female context.
2. Explain what you are going to do before commencing the technique. If you are going to be near any sexually sensitive portions of the body, obtain patient consent before the technique is utilized.
3. If you are going to use any aggressive stretching or other maneuvers where you come into much closer proximity to the patient than normal, again explain what you are going to do in advance.
4. With a regular patient, if you are going to depart from your standard routine, explain the departure in advance and obtain patient consent.
5. If a patient begins to suggest your encounter should be anything other than professional, immediately stop the session, tell the patient you are leaving the room, and report the incident to your supervisor.
6. You have a responsibility to avoid sexual encounters with your patients even after they have terminated the relationship unless you comply with the WAC criteria.
7. Communication and consent should be uppermost in your minds.
Loose lips sink careers.
In the event you are ever the subject of an investigation, do not hesitate to call your attorney for assistance in advance of any interview. Never make the mistake of believing that law enforcement or agency investigators can be convinced of your righteousness merely by expressing innocence. Most investigators, by the time they contact you, have some complaint or evidence of suspicious acts or omissions. They may already have formed impressions of your guilt and innocence. They will employ a variety of techniques to elicit what they think is the truth. Feigned empathy with your situation, pretending to be your buddy, suggesting you cleanse your soul by telling them what they want to hear, dragging out the time of the interview, and the proverbial “good cop, bad cop” routine. Understanding your rights and having an attorney by your side may be the difference between fending off any charges or finding your career in tatters.