February 14, 2019
The Attorney General of New Jersey is cracking down on what he perceives to be dangerous misconduct by medical marijuana doctors, and all medical marijuana doctors in this State should take note.
In late December, the Attorney General filed a Verified Complaint with the State Board of Medical Examiners seeking the immediate, temporary suspension of the medical license of Anthony Anzalone, M.D., a physician who had a sizable medical marijuana patient base. As his reasons for this emergent request, the Attorney General alleged that Dr. Anzalone’s failure to comply with the Board’s regulations regarding medicinal marijuana demonstrated that Dr. Anzalone’s continued practice of medicine posed a clear and imminent danger to the public health, safety, and welfare.
The Attorney General’s filing represents an unprecedented, and legally novel, use of the Attorney General’s power to seek emergent licensure suspension, and strongly suggests that medical marijuana doctors in this State are presently exposed to substantial liability and should take immediate action to ensure compliance with all applicable laws, rules, and regulations.
Usually, the Attorney General takes such emergent action only after obtaining an expert report demonstrating substantial and gross deviations from the standard of care. In Dr. Anzalone’s case, however, the Attorney General’s request for the immediate licensure suspension was predicated entirely upon mere violations of technical regulations. Despite the Murphy Administration’s expansion of the medical marijuana program and its push for the legalization of recreational marijuana, the Attorney General has taken the position that physicians who deviate from these regulations are public dangers whose licenses must be suspended pending a full trial.
Had Dr. Anzalone not voluntarily consented to the immediate suspension and waived his right to a hearing on the merits of the Attorney General’s emergent application, and in light of the Attorney General’s decision not to obtain an expert report in Dr. Anzalone’s case, Dr. Anzalone may have had a good argument to make to the Board, or to the Appellate Division, that his license should not be temporarily suspended, even if he violated certain medical marijuana-related regulations, because violations of those regulations, alone, do not “palpably demonstrate” that he posed a “clear and imminent danger to the public,” as the law requires.
The Board action against Dr. Anzalone should be treated by marijuana providers as urgent cause to ensure that their treatment of medical marijuana patients complies with all applicable laws, rules, standards, and regulations. As with every other aspect of a medical practice, providers should proactively evaluate the legal integrity of their medical marijuana program, and we can help you do so. Among other things, we can audit your records, identify deficiencies and help you remedy such deficiencies and craft a compliance program to ensure you are acting consistent with best practices and reduce your exposure to liability. In this context, having comprehensive medical records, that include all details required by applicable laws/regulations (including details establishing that the patient is suffering from a debilitating medical condition, and establishing that you and the patient have a “bona fide” relationship), is vital.
If you have received a subpoena or a request for records from the Board or the Attorney General, we can help guide you through the investigatory process, including any appearances that might be required before a Committee of the Board, and work with you to attempt to lead the Board and the AG to the conclusion that you are not a public danger and reach a resolution that does not result in public action
. But if, in the worst case scenario, public action is taken against you, we will mount a robust defense of you and your medical practices before the Board and beyond.
Mohamed H. Nabulsi, Esq., a healthcare transactional and regulatory attorney, and Christopher Salloum, Esq. and healthcare litigation attorney who formerly served as Deputy Attorney General as a member of the Professional Boards Prosecution and Government and Healthcare Fraud Prosecution Sections, combine their collective healthcare fraud prevention and defense experience to effectively represent clients in connection with professional board actions.
Mohamed H. Nabulsi, Esq., Shareholder
Mandelbaum Salsburg P.C.
3 Becker Farm Rd., Suite 105, Roseland, NJ 07068
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