Michigan’s medical marijuana certification loophole
March 14, 2017
Courtesy of MIRS News
Publisher’s Note: The following article was written by MIRS Courts Correspondent Simon SCHUSTER. The piece explores issues pertaining to the Michigan Medical Marijuana Act (MMMA). In the course of his work, Schuster details one doctor who has issued 15 percent of the state’s medical marijuana cards in 2015.
The address in a cryptic Facebook post advertising “MMMP CARDS” leads me, late one Sunday night, to the darkened storefront of an appliance wholesaler in North Lansing. The store is locked and shuttered, but around the side, there’s a light on above a windowless door. A sign is taped to it — “medical marijuana doctor.”
Inside is a bare room with a plywood counter at one end and a doorless office in the corner. I pay $150 — cash only — $100 if I had brought any medical records. My driver’s license is scanned, blood pressure recorded on a blank sheet and I’m handed a packet of paperwork, which I set to filling out.
A husband and wife run the operation, but the doctor, Vernon PROCTOR, is not there. He’s a busy man, they tell me, and days later I learn what they mean.
No doctor certifies more patients for Michigan’s Medical Marihuana Program (MMMP). Out of the 136,097 medical marijuana applications the state processed in 2015, Proctor’s signature was on 21,226 of them. That’s more than 15 percent. Fifty-eight certifications a day, if he worked every day of the year.
The next most prolific doctor certified 5,797 during the same period, according to a signed affidavit from Karen KRZANOWSKI, the then-manager of the MMMP office.
Proctor’s operation is not illegal. Instead it leaves his patients vulnerable to prosecution in an increasingly regulated market, as he has skirted state law for years with little recourse available to the state agency tasked with oversight of Michigan’s medical marijuana industry, the Department of Licensing and Regulatory Affairs (LARA).
“The statute does have some blind spots,” Shelly EDGERTON, the department’s director, told me.
Back at the clinic it’s a slow night, the wife tells me. Only 19 people stopped in. The week before, she said, there were 45.
Proctor presumably operates out of makeshift clinics across the state. He told me he works in Flint, Grand Rapids and Lansing — and perhaps other cities, too. Court records show the state received paperwork, within the space of a week, for applicants that live from Detroit to Traverse City. Documents also claimed he has clinics in Petoskey and Baldwin, where his business is registered. He declined to be interviewed for this story, leaving the full extent of his business unknown.
Previously, he would certify people from Lansing’s dispensaries themselves, appearing four days straight in December at a different purveyor each night.
That’s changed with the passage of the Medical Marihuana Facilities Licensing Act, the husband said. One doctor now certifies patients from a bar counter. For Proctor it’s the back of this appliance store, and only once a week, but the drill doesn’t seem to have changed.
“I guess they thought it was going to stop us from doing certifications or something,” he said. “That went over like a fart in church.”
Prospective patients walk in between 6 and 8 p.m., fill out their forms and leave, returning at 9 p.m. when the doctor arrives. I opt to stick around and wait, watching them trickle in.
It’s a diverse crowd, representing a broad range of ages, race, gender and economic status. Among them is an older, barrel-chested man with a long beard, a few millennials that look like college students, an obese Hispanic man in sweatpants and a seemingly well-to-do, middle-aged white couple in high-end athletic wear.
Michigan’s medical marijuana laws mandate that applicants must be diagnosed with a “debilitating medical condition,” which is outlines as a specific list of ailments.
Here, no one brings records, and no one is turned away.
Shortly before 9 p.m. they reassemble in the shabby lobby. Proctor arrives shortly after and strides briskly into the office, carrying a large stack of paper. He spends a few minutes rifling through the stack of paperwork before him, then begins to call each of us into the doorless office.
He spends no more than 90 seconds on each patient, and I’m one of the last. Our conversation consists of four questions and in less than 30 seconds I’ve been certified.
The next day I mail in my paperwork to LARA, certified mail, with a $60 money order for the processing fee. The MMMP office receives my application Feb. 23, and I’m approved March 1.
With Dr. Proctor, it seems anyone can get a medical marijuana card.
The diagnosis of a qualifying condition is required to establish what the law refers to as a “bona fide physician-patient relationship.” Either medical records have to establish the condition, or the certifying physician has to conduct a physical exam.
The thing is, the state has no way to verify patients actually have this relationship or a proper diagnosis.
Shelly EDGERTON, LARA’s director, explained the extent of the state’s verification process to a House appropriations subcommittee.
“What we currently have is patients are going to doctors, the doctors are saying `I recommend you for medical marijuana,'” she testified. “That person’s just getting a certificate, paying a fee, and if everything checks out we’re issuing them a card.”
Until recently Proctor’s system has worked out with few snags. Court records indicate he’s been doing these types of certifications since at least 2010, when an undercover detective got a certification under similar procedures. (My paperwork included a liability waiver, certifying under penalty of perjury that I was not a journalist or law enforcement agent. I did not sign it.)
After all, he’s immune from criminal prosecution or disciplinary action from Michigan’s Board of Medicine, “solely for providing written certifications, in the course of a bona fide physician-patient relationship,” within the statute, providing he’s administering the proper standard of care.
Until the 2012 changes to the MMMP, the bona fide relationship was a largely undefined term, said Doug MAINS, a former legislative attorney who helped craft the reforms.
“We were hearing that doctors were flying in for the weekend from out of state and issuing a thousand certifications, or were setting up shop in the back of a clothing store or something and issuing hundreds of certifications a day,” Mains said. “We tried to make it so it resembled the type of physician-patient relationship you’d have with your doctor in a kind of traditional setting.”
It included adding a requirement for follow-up appointments, and checking in with the patient’s patient primary care physician if given permission. Though LARA still has no way to verify that.
“If the physician is licensed and fills out the paperwork correctly, that would qualify someone to receive a card,” said Andrew BRISBO, the director of the licensing division in LARA’s Bureau of Professional Licensing. “There’s really nothing else in the statute that authorizes LARA to do any further auditing of that, or further enforcement or validation.”
That’s left how closely doctors adhere to the statute’s requirements up to the physicians.
Daniel GROW, a criminal defense attorney who specializes medical marijuana cases, said that “even though the statute now includes definition of what needs to be done, there’s still some variance from doctor to doctor.”
He notes that while “some doctors are extraordinarily thorough,” by reviewing medical records and making follow-up appointments, “it ranges all the way to the other extreme, where maybe you go to a music festival and someone’s there writing certifications.”
The more publicly visible clinics MIRS contacted either require records or provide an on-site diagnosis.
“The ones that are less like what you and I are used to when you and I go to a doctor tend to be more problematic in the courtroom,” Grow said. “That’s not to say that the patients won’t be protected, but the outcomes may vary.”
The law allows each medical marijuana patient to possess up to 2.5 ounces of the drug and grow up to 12 plants. With a valid card and photo ID, a patient is generally exempt from arrest or prosecution in run-ins with the law — what’s known as section 4 immunity.
For Proctor’s patients who don’t violate the statute, they’ll likely never have the integrity of their card questioned. Patients who get caught with too much marijuana, or are growing 13 plants instead of 12 — that’s when problems arise, according to Matthew ABEL, marijuana-centric attorney and advocate.
“That’s when the physician-patient relationship often comes up,” he said. “Where someone is not in strict compliance, where there might be a technical violation, deliberate or not.”
These technical violations can still be defended in court, but they require what’s known as a section 8 defense. The patient still has to provide a good reason for deviating from the limits, but their certifying physician must prove they needed the marijuana.
A previous patient of Proctor’s, Shawn GOODWIN, had tried to assert this defense when he got caught with more than the legally allowed amount of marijuana. In December 2014 the Court of Appeals ruled that while that defense wouldn’t have held up anyway, his relationship with Proctor failed three of the four prongs of the test for a bona fide physician-patient relationship.
“Dr. Proctor also testified that he does not always keep the patients’ medical records. He stated that if he needed them, he could use the patient-signed authorization to obtain them from the primary care physician,” the ruling said. “Further, testimony of Dr. Proctor and the four patients reveals that he only saw those patients for certification and renewal of certification and did not schedule any follow-up appointments to check on the patients, their condition, and the efficacy of the medical marijuana.”
Abel said much of it is up to the judge, whether the legitimacy of a patient’s card is investigated. With that, Abel said, “there’s not a lot of consistency.”
“That’s also a danger,” Abel said. “Just because a physician has written you a recommendation now, a judge is going to second-guess that, apparently.”
Grow has also seen that inconsistency in his practice.
“Certain judges are very adversarial toward doctors that are not what you and I are used to when you go to go see a doctor,” Grow said.
That’s the rub in Proctor’s approach. Many patients will never have a problem with their cards, but if they end up in court, they will have to face the repercussions of its shortcomings.
Abel takes issue with that reality.
“I think that’s inappropriate and if there’s an issue about a doctor certifying a patient, it shouldn’t be the patient who’s punished, it should be the physician who’s subject to professional discipline if in fact the physician is not complying with the law,” he said.
Proctor may be facing professional discipline. He has two formal complaints against him with the Board of Medicine and Board of Pharmacy. They have been pending since November 2015. The hearing on the cases was held last fall, and if he is found to have committed professional misconduct his medical license could be revoked.
They accuse him, predictably, of not providing adequate care to the medical marijuana patients he certifies, though that’s not the main complaint. It alleges he dispensed Suboxone, a watered-down opioid, along with a host of other narcotics, for nearly a year “without proper licensure and recordkeeping.”
His attorney, Nicholas BOSTIC, flat-out denied the allegations.
“He doesn’t prescribe opioids. That’s what’s so ridiculous about it,” he said. “They found one patient where he prescribed an opioid for a 10- or 14-day period and they claimed he didn’t ask enough questions, they claimed he didn’t get enough background … they found one example out of hundreds and hundreds of patient files, where he prescribed an opioid and then they had a conniption fit over it.”
It appears Bostic and Proctor have gone to lengths to slow the movement of the complaints through the Michigan Administrative Hearing System.
“Post-hearing briefs and exhibits kept being submitted delaying the proposal for decision,” said Kevin RAY, a spokesperson for LARA. A decision is expected by mid-April.
They’ve filed several lawsuits, two in federal district court and another in the Court of Claims, against LARA and the Board of Medicine. They allege that the state agencies illegally procured substance abuse treatment records for his patients, which are protected under federal law.
Bostic called LARA’s handling of the complaints, which have been amended multiple times, “disgusting,” and cast doubt on the motives for the complaint.
“One of the more interesting things that we found was that the administrative licensing complaints were generated internally, from (LARA),” he said. “They weren’t from third-parties, like citizens.”
It isn’t clear whether the sheer volume of certifications the MMMP office was processing from Proctor was any red flag, though the Krzanowski affidavit noted “”MMMP staff recognize his signature.”
That recognition of his signature led to the suit in the Court of Claims. Documents claim that when the MMMP staff would receive a certification from Proctor that appeared forged, they’d call him to verify the date the certification was made. After a time, he began to refuse to verify the dates, and the MMMP office stopped approving his certifications until he began verifying them again. Proctor alleges in an affidavit this was “retaliation for the vigorous defense that he is presenting to the disciplinary action.”
MIRS‘ request to interview the current director of the MMMP office, Desmond MITCHELL, was denied by a LARA spokesperson.
Brisbo, the licensing division director, said “we’re aware of those concerns (regarding doctors like Proctor), and we’ve heard about that, and we’re examining what the law would allow us to do to potentially do more in terms of auditing those records and validating them.”
All the attorneys I contacted in the course of reporting this story said operations like Proctor’s speak to a larger issue — most “normal” doctors are unwilling to write medical marijuana certifications.
“Especially big companies, bigger operations and more visible entities are asked to participate in marijuana-related activities, they pucker up and get nervous because it’s against the law under federal law,” said Bob HENDRICKS, an attorney who specializes in medical marijuana business law. “That’s what’s going on with these physicians by and large. They work for large health-care providers who receive millions, maybe multiple of millions of dollars, in Medicare and federal-related fees and they sign all kinds of agreements with the federal government … lots of those documents probably have language in them that says `you agree that you won’t engage in activity that’s unlawful under federal law.'”
There’s also next to no information readily available from LARA addressing how to get certified properly. Grow said that for lower-income Michiganders it could make getting certified a riskier endeavor.
“It would have a disparate impact on folks who don’t have good access to traditional health care,” he said. “Either folks that have chosen to not go the route of conventional medicine, or folks who because of economic problems do not regularly see a doctor.”
Abel thinks there’s an element of injustice in it.
“The doctor who didn’t do as thorough an exam, their recommendation is unlikely to hold up as well as one who was more thorough,” Abel said. “Is that fair to the patient? Does that mean your condition is any less serious? Maybe you have multiple sclerosis, but the doc only took one minute. Does that mean that recommendation is not as good as a doc who takes a half-hour with you? … The doctors are the gatekeepers and they should be held to some kind of standard.”
As for Proctor’s philosophy behind marijuana, Bostic has a simple answer.
“He’s a believer in the ability of medical marijuana to help people.”