Cancer Patients Must Provide DOH Approval for Seizures and Muscle Spasms, or May Be Unqualified for Low-THC Medical Marijuana

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

Barnhart v. Dep’t of Health, Div. Admin. Hearings, Case No. 15-1271RP (Final Order April 10, 2015).

Following is a summary of a recent Division of Administrative Hearings case summary, taken from The Florida Bar Administrative Law Section Newsletter, Vol. 36, No. 4 (June 2015).

FACTS: On February 6, 2015, the Department of Health (“DOH”) published a notice of proposed rule-making setting forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (“the Act”). The Act provides in part that certain physicians treating patients suffering from cancer or a condition that chronically produces seizures or severe muscle spasms may order low-THC cannabis for those patients’ treatment.

The Petitioner filed a Petition asserting that one of the proposed rules (64-4.002) is an invalid exercise of delegated legislative authority.  In support thereof, the Petitioner alleged that she is a four-year-old Florida resident diagnosed with an inoperable brain tumor, and she treats her condition with medical cannabis extracts. The Petitioner further alleged that she plans to register with the Office of Compassionate Use Registry to become a “qualified patient” for the medical use of low THC cannabis.

The Petition also contained allegations regarding the harm that would result without an adopted rule. For instance, the Petition alleged there is a “desperate need for access to low THC cannabis” and that expedited rule promulgation was necessary because the “selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine.” The Petition also asserted that potential applicants eligible to become dispensing organizations would be harmed by the proposed rule’s “overly burdensome” application, scoring, and selection process.

OUTCOME: After affording Petitioner leave to file an amended Petition, the ALJ dismissed the Petition due to a lack of standing when Petitioner chose not to file an amended Petition.

The ALJ concluded the Petitioner’s allegations failed to demonstrate that she could become a “qualified patient” and thus potentially eligible for a physician’s order to receive low-THC cannabis.

The ALJ noted that while the Petitioner alleges that she has an inoperable brain tumor, she does not allege that her “condition falls within the narrow parameters of the Act, that is, that Petitioner has cancer or that Petitioner’s medical condition chronically causes seizures or muscle spasms.” Moreover, even if Petitioner had sufficiently alleged that she could be a “qualified patient,” the allegations were insufficient to show that Petitioner would suffer a real or sufficiently immediate injury in fact resulting from application of the proposed rule.

However, the ALJ rejected DOH’s argument that a “qualified patient” could never have standing to challenge proposed rule 64-4.002. While noting that the proposed rule only addresses the application requirements, scoring, and selection process for dispensing organizations, the ALJ concluded that qualified patient status, “when adequately alleged, might, hypothetically, be sufficient as part of the predicate for standing to challenge rules implementing the Act.”

Editor’s Notes on Case Summary:

This case demonstrates a common situation for many Florida residents who suffer from conditions like cancer: denial of medical marijuana. The Compassionate Medical Cannabis Act of 2014 states that in order to qualify for the cannabis, the patient must produce symptoms of seizure and persistent muscle spasms. If the patient is younger than 18 years of age, a second physician must concur the initial physician’s determination. In this case, 4-year-old Dahlia Barnhart, who suffers from a brain tumor, failed to demonstrate that her condition produces seizures and spasms, and therefore was denied low-THC. In court documents, you must allege that you are eligible for the physician’s order.

Comments?

Do you think that 4-year-old Dahlia Barnhart qualifies for medical marijuana? Do you have a chronic condition that was denied medical marijuana? Please leave any thoughtful comments below.

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact the Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

KeyWords: license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, Department of Health, DOH, health attorney, medical marijuana lawyer, medical cannabis, cannabis, marijuana, Compassionate Medical Cannabis Act, THC, medical THC, health conditions, cancer, cancer patients, brain tumor, petitions, Florida, Office of Compassionate Use, ALJ, administrative law judge, physicians, Florida marijuana, administrative hearing, petition for rule challenge

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

The Health Law Firm Attorneys Often Represent Massage Therapists in Last Minute Depositions and Hearings

Headshot of attorney George IndestBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our attorneys often receive calls from massage therapists regarding the possibility of representing them on short notice at a Board of Massage Therapy hearing, or at a deposition related to a health care matter.

We Take Last Minute Cases.

There are some law firms that refuse to represent a client at a hearing unless given plenty of advance notice and preparation time. We always prefer to have sufficient time to obtain documents, review files, interview witnesses, conduct research and prepare, in order to provide our clients the best possible representation. But we realize that in certain cases, the alternative is that the client either gets legal representation on little or no advance notice, or has to suffer the consequences of having no legal representation.

If we think the case is too complex for us to represent you effectively on such short notice or that any legal representation would be completely futile we may also refuse to represent a client. However, often this is not the situation.

Administrative Proceedings Can Be Confusing, Even For Inexperienced Attorneys.

In some cases individuals responding to a disciplinary complaint may be fooled into believing that they can effectively represent themselves. Laypersons (meaning, in this case, nonlawyers) who are not aware of such complex matters as the Administrative Procedure Act, the Rules of Civil Procedure, the Rules of Evidence, the Florida Administrative Code (F.A.C.) Rules which the Board of Massage Therapy and the Department of Health (DOH) have enacted may quickly be perplexed. Often the individual may only figure this out days or weeks before the final hearing.

The inexperienced individual, or even the inexperienced attorney, in these matters can fall into a number of procedural traps that damage an effective defense. This can be advising the individual to talk to the DOH investigator, filing an unnecessary answer to an Administrative Complaint, forgetting or not knowing that the client’s right to be free of self-incrimination applies in this type of case and many others.

Don’t Damage Your Defense.

Often you will find that merely having an experienced attorney to represent you at a hearing or Board meeting will assist you in avoiding mistakes that damage your case and assist you in preserving your rights for an appeal. In other cases it may even be possible to obtain a change in forum to obtain a better result. For example, many laypersons do not know that if you elect an informal hearing before the Board of Massage Therapy, you have waived your right to prove you are innocent by contesting the facts alleged against you.

What few know or think of in the heat of the moment is that you can ask at the informal hearing before the Board of Massage Therapy to contest the facts, to prove you are not guilty of the charges, and to have the hearing converted to a formal hearing. A formal hearing will be in front of a neutral Administrative Law Judge (ALJ), and you have a great many more procedural rights than you have at an informal hearing. However, we still recommend that you have an experienced health lawyer represent you at a formal hearing.

The Health Law Firm is Available for Deposition Coverage.

In a number of cases, we have been requested to provide local deposition coverage in an area near to one of our offices, when an out-of-town lead counsel is unable to make the trip. If the issues involve health care, we are pleased to be able to assist.

Often Professional Liability Insurance Will Pay Legal Fees for Deposition Coverage.

If you are a massage therapist who has a professional liability insurance policy, these often provide legal coverage for depositions. This is primarily because the outcome of the deposition may include having you named as a defendant in a professional liability or negligence lawsuit or having disciplinary charges filed against you.

One of the first things you should do if you receive a subpoena or a notice of a deposition is to contact your professional liability insurance carrier and see if it will pay for an attorney to represent you. For example, Healthcare Providers Service Organization (HPSO), CPH & Associates, Lloyds of London and many other malpractice insurance companies provide excellent deposition coverage.

The second thing you should do is to call an experienced attorney and schedule a consultation. Even if you cannot afford to retain the services of the attorney for the actual deposition, a consultation may assist you in properly preparing.

Consult With A Health Law Attorney Experienced in the Representation of Massage Therapists.

We routinely provide deposition coverage to massage therapists, massage therapy assistants and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing health professionals in investigations and at Board of Massage Therapy hearings. Call now or visit our website www.TheHealthLawFirm.com.

Comments?

Have you ever had an informal or formal hearing before the Board of Massage Thearpy? What was the experience like? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. 

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Administrative Law Judge Recommends Dismissal of All Charges Against Massage Therapist

FACTS: As reported in the June 2013 edition of DOAH Case Notes, Guiping Diamond graduated from the Florida College of Natural Health (“FCNH”) and became a Florida-licensed massage therapist in 2009. However, FCNH’s former registrar falsely told her that FCNH would accept all of the credits from her previous school and that those transfer credits fulfilled FCNH’s requirements for issuance of a diploma satisfying state licensure requirements. There was no evidence that Ms. Diamond was aware of the falsified documentation, which the FCNH registrar submitted directly to the Board of Massage Therapy (“the Board”).

The Department of Health (“DOH”) issued an administrative complaint seeking revocation of Ms. Diamond’s license based on a variety of charges, including that Ms. Diamond obtained a license through fraudulent misrepresentation, or in the alternative, formal administrative hearing, the ALJ recommended that the Board enter a final order finding her not guilty. While section 456.072(1)(h), Florida Statutes, subjects licensees to discipline for obtaining a license through an error of DOH, the ALJ concluded the licensee must have knowingly used DOH’s error to his or
her advantage, which the ALJ found was not the case here.

OUTCOME: The Board issued a Final Order rejecting all 13 of DOH’s Exceptions to the Recommended Order and dismissed the administrative complaint. DOH appealed the Board’s Final Order to the First District Court of Appeal. That appeal and four others involving similar events at FCNH are currently pending.

Source:

Dep’t of Health v. Diamond, DOAH, Case No. 12-3825PL (Recommended Order April 9, 2013); DOH Case No. 2012-11850 (Final Order Aug. 21, 2013).

About the Author: The forgoing case summary was prepared by and appeared in the DOAH case notes of the Administrative Law Section newsletter, Vol. 35, No. 2 (Dec. 2013), a publication of the Administrative Law Section of The Florida Bar.

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