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Patients seldom rejected; sometimes certified over the phone

This story incorrectly stated the price of a certification for medical marijuana use from Dr. Steven Rosenberg of Albuquerque Integrative Medicine. Evaluations cost from $135 to $170 for a single evaluation from Rosenberg and $300 for the two evaluations required for patients with severe chronic pain applying for the program.

Copyright © 2013 Albuquerque Journal

How easy has it been to get medical marijuana in New Mexico?

Some patients have been certified for the program over the phone or via Skype.

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At least one clinic didn’t examine patients before attesting to their eligibility for the program.

One Albuquerque medical marijuana doctor allegedly treated patients while under the influence of medical marijuana himself.

Some patients approved for the program may not have met the criteria to legally use medical marijuana to ease debilitating pain or illness.

Of the 12,977 applications submitted to the state Department of Health since the program began in 2007, only 25 resulted in “flat-out denials.”

One physician in the field, known as Dr. Nick, approved 98 percent of the patients who he evaluated for the cannabis program.

These are some of the revelations that surfaced during a state Medical Board disciplinary hearing last April, shedding new light on the mostly confidential operations of the state’s 6-year-old medical marijuana program.

As of Aug. 1, 9,607 people were approved to use the drug under the program overseen by the DOH, which relies on physicians, physician assistants and nurse practitioners around the state to screen and determine initial eligibility of patients.

DOH officials review the certifications submitted and make the final decisions.

But over the past 15 months, the state Medical Board has initiated disciplinary proceedings against two providers who allegedly violated the standard of practice in certifying patients for the program.

The two disciplinary cases – one of which goes to the full board for possible action on Thursday – spurred the board to propose rules for physicians or physician assistants who sign certifications for patients to use medical marijuana. A hearing on those rules is set for Friday’s board meeting in Santa Fe.

The proposed rules are aimed at ensuring that doctors observe standard medical practices, such as having an ongoing relationship with a patient and informing a patient’s other health care providers before signing off on a patient’s eligibility for the program.

“It’s not really about cannabis; it’s how you practice medicine,” said Dr. Steven Rosenberg, of Albuquerque Integrative Medicine, an anesthesiologist whose practice is devoted to evaluating patients for medical marijuana eligibility.

He testified as a medical board expert in the disciplinary hearing of Dr. Nicholas Nardacci, a 32-year family-practice physician in Albuquerque.

“Our patients are entitled to the same level of care for cannabis patients as any other patient for any other condition,” Rosenberg said last week. “And the board wants to achieve that, and I support their efforts.”

Overstepping?

Some say the Medical Board is overstepping its authority by wading into the medical marijuana controversy. New Mexico is one of 20 states that have legalized marijuana for medical use.

Attorney Paul Livingston has represented both the physician and physician assistant whose certifications of medical marijuana patients came under Medical Board scrutiny.

He contends that both have immunity from prosecution and penalties under the state’s Lynn and Erin Compassionate Use Act governing medical marijuana. Livingston accuses the board of interfering in an issue that has national implications for doctors.

“This is exactly why the Legislature granted immunity to health care providers, so they wouldn’t be subject to this kind of thing,” Livingston said during the hearing on the board’s allegations against Nardacci, known as Dr. Nick.

Nardacci said last week that the board “drummed up” the case against him and “now they’ve come up with a whole set of rules. So they’re trying to get me for rules they never had.”

Nardacci testified at the hearing on April 23 that his practice is split between medical marijuana cases and U.S. immigration exams, according to a hearing transcript.

Nardacci is accused by the board of an array of violations of the state Medical Practice Act, including buying medical marijuana for himself from a registered sex offender neighbor instead of a state-authorized dispensary. He is also alleged to have fired a shotgun near the feet of the stepfather of a former girlfriend who worked in his office. Nardacci said the shotgun shells were blanks and he was never charged with a crime by police.

The board has alleged that Nardacci has used marijuana excessively and habitually, and has examined and treated patients while under the influence of marijuana.

Nardacci, who is approved to use medical marijuana for chronic back pain, testified at the hearing that he smokes marijuana before he sees patients in the morning and at night. He said he smokes a strain of cannabis that doesn’t intoxicate.

Rosenberg countered that there’s no medical marijuana available in New Mexico that doesn’t contain a significant percentage of THC, which can alter perception and judgment.

Nardacci testified that he has certified more than 1,000 people for the program. That’s about 98 percent of those who applied to him, he added.

Rosenberg, on the other hand, said he signs off on about 66 percent of patients seeking certifications.

Rosenberg testified that he reviewed, at the medical board’s request, medical records of about 34 patients Nardacci certified for the program. Of those, only about half appeared eligible, he added.

“I think that there are errors in judgment here which would affect certifying these patients,” Rosenberg testified. “He has recommended people who did not meet the standards set by the Department of Health.”

The certifying provider, whose identity is usually confidential by law, typically reviews a patient’s medical records to determine whether the patient has been diagnosed with one of 17 conditions for which medical marijuana is allowed. The provider also must find that standard medical therapies have failed and that the risk of medical cannabis is outweighed by the benefit to the patient.

For example, one of Nardacci’s patients was qualified because of intractable nausea and vomiting, and had a condition that can be treated with medications like Prilosec. But Rosenberg said there was no evidence the patient had tried standard medications to treat the condition.

Another patient was certified after complaining of abdominal pain but had not been to a gastroenterologist or had any diagnostic test to determine the nature of the problem, Rosenberg testified.

Nardacci dismissed Rosenberg’s testimony as biased.

“He’s my No. 1 competitor, and he stands substantially to benefit if I were out of the game,” Nardacci testified.

Rosenberg said he didn’t consider Nardacci a competitor.

Nearly 100 percent of patients Nardacci recommended for the program “were accepted by the DOH without criticism or rejection in any way,” Livingston said.

If ineligible patients were approved, Livingston argued, “that’s the DOH’s failure, not Dr. Nardacci’s.”

Risks

Nardacci does examine the patients beforehand, Rosenberg testified.

But Rosenberg testified that he reported other clinics in Albuquerque to DOH officials “because they were signing off on patients without ever seeing them.”

They told patients “drop off your papers and then pick them up. Definitely (they) did it over the phone and on Skype, I think, at one point,” Rosenberg testified.

Rosenberg added that DOH officials “were aware of the irregularities going on, that they had attempted to take steps” in one case that involved an entrepreneur who wasn’t a doctor. “But for legal reasons … their hands were somewhat tied.”

Last year, the board settled a case with a physician assistant accused of improperly certifying patients for the marijuana program. In a settlement of the case, Richard Rubin of Albuquerque, the physician assistant, agreed not to screen for medical marijuana eligibility for four years.

Attorney Livingston asked Rosenberg what harm would occur if people used marijuana for medicinal purposes when they weren’t eligible.

Rosenberg pointed out that Nardacci himself warns prospective patients in writing that there could be side effects, such as an increased risk of accidents, and a potential impact on the heart and lungs. In a small percentage of cases, there’s also a possibility of psychological addiction, Rosenberg said.

Livingston said the idea that “cannabis-dependent” people are trying to “cheat” the state program was “ridiculous.”

“Why would you pay extra money to get (medical) cannabis when you could get it from a friend or a dealer?” the attorney asked.

“So you don’t get busted,” Rosenberg replied.

Price war

The cost for medical marijuana evaluations varies, according to hearing testimony.

As of April, Rosenberg’s clinic charged $300 for certifications. Nardacci has advertised as low as $90 for evaluations.

“There’s been, for lack of a better term, a price war, like a gasoline price war, between a couple of practitioners,” Rosenberg said. “It’s not McDonald’s where we advertise how many satisfied customers we have.”

Rosenberg testified he doesn’t mention prices in his ads, adding, “I can make more doing anesthesia in two weeks probably than I could make in two or three months doing this … so it’s not about economics, sir.”