Abstract
Since the legalization of marijuana for medical purposes in 2000, and the subsequent refinement of statutory guidelines for physicians in 2010, the Colorado Medical Board has been very involved in the regulation of physicians who recommend marijuana for medical purposes. As Colorado patients have gained access to medical marijuana via physician recommendation, the need for regulatory oversight of these physicians has evolved.
Introduction
Since the passage of Amendment 20 by the citizens of Colorado in 2000, the use of medical marijuana has been legal in Colorado under certain circumstances. In order to qualify for medical marijuana, a patient is required to obtain a card from a physician stating that the patient has one of several debilitating conditions. As expected, this legalization has been a polarizing event for many groups in the state, including patients and physicians.
In Colorado, the regulation of medical marijuana is shared by two state entities: The Colorado Department of Public Health and Environment (CDPHE) maintains a registry of patients who have received medical marijuana recommendations and the Colorado Medical Board (CMB) is tasked with the regulation of physicians.
With the legalization of marijuana use in Colorado, the CMB has been faced with an interesting conundrum: how should it regulate physicians who are recommending a treatment to patients that is legal at the state level, but remains illegal at the federal level?
As a medical board, the CMB is not tasked with deciding the efficacy, appropriateness, or legality of marijuana as a medical therapy. Thus, the CMB is able to focus its energy on the care provided by individual physicians treating individual patients.
In Colorado, the approach to regulation of physicians who recommend medical marijuana has centered on the patient-physician relationship and the care provided by the physician. While medical marijuana may add a new wrinkle to the dynamic, the basic standards of the practice of medicine have not changed. Physicians are still expected to interview and examine their patients, document each encounter, and provide appropriate recommendations for both treatment and follow-up care. These basic standards provide a regulatory framework that assists in assessing the care provided by physicians.
Variations in Practice
As expected, there is a vast difference in the type of encounters that lead to medical marijuana recommendations. Initially, some medical marijuana recommendations in Colorado were made by physicians practicing in what could be described as nontraditional settings, some of which were associated with issues of thoroughness of patient evaluation, availability for follow-up, and allegations of over-recommending of medical marijuana.
Other recommendations came from physicians practicing in more traditional settings, such as primary care offices. These physicians had chosen to incorporate medical marijuana into their other treatment modalities offered to patients.
Regardless of the location or type of practice, the basic standards of the patient-physician relationship apply.
Regulation of Individual Physicians
A physician comes to the attention of the CMB when a complaint is received. This complaint may arise from a concerned community member, another state agency, or from a law enforcement agency. As anticipated, very few complaints arise from patients who receive a recommendation from their physician.
When investigating a complaint regarding a physician, the CMB uses a similar approach to all cases: Did the physician appropriately evaluate, manage, and document the encounter? Was the best interest of the patient the leading principle of the encounter? Were professional or ethical boundaries crossed?
Often, expert evaluation of the care is sought. This uniform approach to investigation of physicians minimizes bias toward the style of practice or location of service performed.
The CMB has found that applying a standard-of-care model to investigation of medical marijuana physicians provides a framework for consistency among investigators and inquiry panels.
Future Challenges
It is anticipated that as the trend of legalization of medical marijuana continues throughout the country, other states will face similar regulatory challenges. As medical marijuana becomes a treatment option, physicians who are new to this type of recommendation will need guidance. A proactive stance by applicable medical boards would be ideal.
Going forward, it will be important that guidelines for the recommendation of medical marijuana be evidence-based and consistent. This requires a two-pronged approach: additional research and practice guidelines are likely forthcoming in the medical literature, and regulatory agencies will continue to refine their approach to medical marijuana. The CMB has chosen to focus on the latter.
THE CMB HAS FOUND THAT APPLYING A STANDARD-OF-CARE MODEL TO INVESTIGATION OF MEDICAL MARIJUANA PHYSICIANS PROVIDES A FRAMEWORK FOR CONSISTENCY AMONG INVESTIGATORS AND INQUIRY PANELS.
As case law builds regarding the regulation (and discipline) of physicians practicing below the standard of care, some clarity is emerging. In the future, it is anticipated that medical marijuana states (including Colorado) will promulgate policies that further clarify expectations of physicians.
The medical marijuana industry will also mature. Over the last few years, Colorado has seen an incredible expansion in the variety of marijuana-containing products available. Today, the customer (or patient) has options to smoke, vaporize, eat, or topically experience marijuana. The increased availability of high-potency marijuana oils has increased the appeal of marijuana to consumers, who prefer to avoid smoking the product. The regulation of the type and potency of products available will likely be a regulatory challenge for many state agencies, not just medical boards.
AS MARIJUANA BECOMES MORE PREVALENT, COMPLAINTS ABOUT POTENTIAL PHYSICIAN IMPAIRMENT WILL ALSO BE EXPECTED TO INCREASE...AND ISSUES OF WORKPLACE IMPAIRMENT WILL ARISE.
As marijuana becomes more prevalent, complaints about potential physician impairment will also be expected to increase. Issues of driving while impaired, positive urine toxicology screens for marijuana metabolites, and issues of workplace impairment will arise. Physician health programs will encounter physicians who consider the medical use of marijuana a bona fide part of their personal health. State medical boards will respond to complaints regarding physicians who are witnessed consuming marijuana recreationally and reported by concerned patients.
In summary, the resurgence of marijuana as a medical recommendation continues to be a challenge for the CMB. As physicians experience practice-drift into the medical marijuana arena, they will need guidance from a variety of sources. Medical boards, state and county medical societies, federal guidelines, and law enforcement trends all have a role in sculpting the future of medical marijuana. A close alliance of medical boards, including sharing of best-practices for regulation, will be helpful.
About the Author
↵Eric Groce, DO, is President of the Colorado Medical Board. He practices family medicine in Colorado.
- Copyright 2015 Federation of State Medical Boards. All Rights Reserved.
