MARIJUANA RULE TIGHTENS

State health officials have adopted a new administrative rule that
requires physicians who sign medical marijuana applications to have
an ongoing relationship with their patients. It could be called the
Leveque Rule, after Dr. Phillip Leveque, a 78-year-old Molalla
osteopath who has signed for more than 40 percent of the state's
2,200 medical marijuana patients.

But the rule raises some troubling issues for Oregon doctors, who
question how the rule will be enforced and whether it will conflict
with a new federal law protecting patient privacy. And a patient
advocacy group said the rule amounts to unnecessary red tape that
will make life harder for patients.

The temporary rule went into effect Friday and applies to pending and
future applications. It will be in force for up to 180 days. In the
meantime, a public hearing to establish a permanent rule will take
place this fall.

While not identifying Leveque by name, state officials referred to a
doctor who signed for "a disproportionately large number of
applicants" to justify the need for the new rule.

"The large number of cases makes us question whether this person
could truly qualify as the attending physician for all these
patients," Dr. Grant Higginson, state health officer with the
Department of Human Services, said in a statement.

"We need to make sure a physician-patient relationship actually
exists in these cases before we process them, and the new rule allows
us to do so."

Leveque could not be reached for comment Friday.

He said in earlier interviews that he did not examine in person each
of the more than 900 patients he has signed for. In some cases,
patients would mail him copies of their medical charts and he would
consult with them over the phone.

Leveque said he feels "a moral obligation" to sign for patients who
legitimately qualify for medical marijuana under the law. He said the
reason he's signed so many applications is that patients often have
trouble getting their regular doctors to sign.

The state Board of Medical Examiners has notified Leveque that he is
under investigation, alleging that he signed a medical marijuana form
for a patient without examining her, diagnosing her condition,
conferring with her primary physician or documenting his care in her
medical charts.

Under the new rule, a physician who signs a written statement for a
medical marijuana applicant must at minimum maintain an active,
up-to-date medical file for the patient. The rule gives medical
marijuana program staff authority to examine the original patient
file or require a copy of the file from the physician, solely to
examine the patient-physician relationship.

Paul Frisch, legal counsel to the Oregon Medical Association, said
the state was making a good faith effort to address a problem, but
"the solution creates more problems than it resolves."

"If you're looking for doctors who shouldn't be doing this, this is
an odd way of doing it," he said.

Frisch said if the Health Division believes a doctor is not acting in
good faith, officials should refer their concerns to the Board of
Medical Examiners, which has authority to yank a doctor's license.

Mac Prichard, spokesman for the Department of Human Services, which
oversees the Health Division, said the program staff will not attempt
to verify that an ongoing patient-doctor relationship exists for
every application.

The rule states that in determining whether to examine a patient's
medical records, staff members may consider factors such as
complaints from patients, family members or health care providers, or
the number of applications a single doctor has signed for.

But it doesn't say what that number is.

It might be an easy call to request those records if a single doctor
has signed for hundreds of patients, but less so if the doctor has
signed five or 10 or 20, Frisch said. He urged the state to set up a
specific threshold.

"If you're doing more than 25 of these, perhaps you're inviting
scrutiny, and you need patient authorization," he said. "It's not
clear what is required at this point."

Of the 538 doctors who have signed for medical marijuana patients, 63
percent had signed for a single patient, according to state records
obtained by The Register-Guard under public records laws.

Only 13 doctors have signed for more than 10 patients.

Frisch also is concerned that the new rule will conflict with a new
federal law, the Health Insurance Portability and Accountability Act,
or HIPA.

The federal law, which is in effect but won't be enforced until April
2003, makes it clear when and under what circumstances patient
information can be shared with third parties, Frisch said. He said
HIPA likely will require doctors to get specific authorization from
patients before sharing their medical charts with the state.

Prichard said the state is not ignoring HIPA.

"We're saying it is the responsibility of the doctor to secure a
release from the patient if in fact a release like that is
necessary," he said. "If the doctor can't get the OK from the
patient, then we can't look at the record and we'll have to deny the
application."

Voter Power, a Portland-based medical marijuana patient advocacy
group, has referred hundreds of patients to Leveque. The group's
director, John Sajo, criticized state officials for adopting a rule
for which Sajo contends there is no compelling need.

"We think they're piling more rules onto the patients and doctors,
which is going to make life harder for patients," he said.

"We think they're being overly bureaucratic."

The rule won't necessarily stop Leveque from signing for patients,
but it will make it more difficult, he said.

Sajo also was critical of the Health Division for promulgating a new
rule when they're breaking an existing rule that requires them to
process applications for medical marijuana cards within 35 days.

Some patients have been waiting 100 to 120 days to get their cards,
he said. The delay could be harming a patient's health, he said.

That's why Voter Power is contemplating legal action to compel the
state to follow its own rules, he said.

Marijuana Law:

Oregon's medical marijuana law permits each cardholder to have a
total of seven plants: three mature, or budding, plants, and four
immature plants. Those with a permit can possess three dried ounces -
one for each mature plant.