State Supreme Court: No Immunity for Doctors Who Lie on Patient Forms
In a unanimous opinion on May 6, the Arizona Supreme Court rejected the idea that the state's medical-marijuana law provides blanket immunity for physicians whenever they write certifications.
Henceforth, doctors who don't play by the state's rules may risk prison time.
While its full implications have yet to play out, the ruling has immediate consequences for Dr. Robert Gear of Payson, who's back on the hook for fraud charges in a 2012 criminal case. Prosecutors allege that he lied on the paperwork of a patient who turned out to be a confidential informant in a Navajo County drug task force investigation.
The case began when the C.I. visited Gear and asked for an evaluation. The doctor, who resigned his position on the Naturopathic Physicians Medical Board during the subsequent criminal investigation, falsely affirmed on the woman's certification that he'd reviewed her medical records from the past 12 months.
A grand jury later indicted him for fraud and forgery, but the lower-court judge dismissed the charges. Mark Brnovich, state Attorney General, appealed the case to the state's highest court. Brnovich touted the win in a statement last week, saying that voters didn't authorize "marijuana mills aimed at maximizing profits rather than providing good patient care."
Gear's case will now go back to Navajo County for a do-over. His naturopathic license remains valid, according to online records.
Reached through his attorney, Kimberly Kent, Gear declined New Times' request for comment.
None of Gear's actual patients were ever stripped of their certifications because of his alleged misdeeds.
Elaine Burns, a local naturopath who specializes in certifications says she doesn't expect the supreme court's ruling to have much impact on the state's medical-marijuana system, which comprises 92 dispensaries and about 95,000 registered patients.
"I absolutely stand behind that ruling," says Burns, medical director of the Southwest Medical Marijuana Evaluation Center. The 2010 Arizona Medical Marijuana Act "doesn't give you carte blanche to go around doing forgery or whatnot."
The opinion, authored by the court's newest justice, Clint Bolick, notes that while the AMMA does provide immunity to doctors who write certifications, Gear had argued that the immunity "extends to any conduct 'related to certification.'"
That would lead to "troublesome outcomes," the court concludes. "For instance, would immunity extend to theft or sexual assault committed in the course of a physical examination conducted during the certification process?"
Voters who approved the AMMA gave the Department of Health Services the power to write reasonable rules for the program. The DHS, in turn, created the rule that says a doctor must review the preceding 12 months' worth of medical records related to the claimed qualifying ailment before approving certification.
Bolick makes clear that the ruling applies only to the narrow question of whether Gear violated the DHS regulation regarding records review, and not the constitutionality of the rule itself, nor the propriety of the sting operation that led to the doctor's arrest. Gear, he wrote, "is not being
prosecuted for providing a written certification but for lying about compliance with rules issued by DHS, whose authority Dr. Gear does not contest.... Nothing in our opinion should be read to limit or
threaten" the certification process.
As Burns sees it, that process demands honesty by physicians — but it does not always require a review of a patient's last 12 months of medical records. If no such records exist but the patient has seen a doctor for the ailment prior to that 12-month period, Burns says, she simply has the patient sign a document attesting that he or she hasn't seen a doctor in the last 12 months.
(In Gear's case, the confidential informant had claimed she'd visited other doctors but hadn't brought along a set of medical records to prove it; instead she promised to provide the documentation on her next visit.)
At the least, Burns says, prolific certification writers may need to "look up from their desk and go, 'Am I doing this right?'"
A report released by the state in late 2014 showed, among other things, that 24 doctors wrote 34,000 certifications in the preceding year, fueling concerns of "certification mills." One week after that report, the appeals court in Gear's case had appeared to dismiss those concerns, declaring that doctors could not be prosecuted for writing certifications under the AMMA even if they lied.
With this new ruling, authorities have regained a wedge against suspected unscrupulous pot doctors.
Mother's Day-Themed Pro-Legalization Billboards Debut in Phoenix and Tucson
"Have you talked to your parents about marijuana?" That's the question posed on billboards in Phoenix and Tucson this past week, courtesy of the Campaign to Regulate Marijuana Like Alcohol in Arizona.
The Mother's Day-themed ads were covered widely by the news media and even mentioned by Jimmy Fallon during his monologue on last Wednesday's The Tonight Show.
"For decades, the federal government distributed anti-marijuana propaganda to parents and encouraged them to share it with their children," J.P. Holyak, chair of the CRMLA, said in a written statement. "Older voters tend to be less familiar with marijuana and, as a result, more concerned about making it legal for adults."
Polls show that the CRMLA's legalization measure, aimed at this November's ballot, could suffer from a lack of support among older voters. But if opponents of the legalization measure have confidence the measure won't pass, they're not showing it. Seth Leibsohn of Arizonans for Responsible Drug Policy released a statement condemning the billboards.
"It is wholly irresponsible to mock substance abuse — and the hard work done by community preventionists and parents to keep their children safe — as a joke," Leibsohn said. "These billboards should be taken down immediately.”
Gilbert Town Council Calls "Emergency" to Limit Number of Dispensaries
Liquor and guns may be widely and legally available in the East Valley town of Gilbert, but the prospect of three medical-marijuana dispensaries is an "emergency."
The Gilbert Town Council declared the emergency on May 5 in order to allow a new, dispensary-limiting ordinance to go into immediate effect. The town has one dispensary but will now allow only one more.
Phoenix and Scottsdale have also moved to limit the number of dispensaries that can open, responding to several factors that could have meant many more stores. As of this year, dispensaries can move to different locations around the state, and the state DHS announced recently that it would authorize 30 more dispensary licenses. Also, if the CRMLA (see above) is approved by voters in November, existing medical-marijuana dispensaries would receive priority in obtaining licenses for the 21-and-older shops that would be allowed under the measure.