New rule to take effect allowing DHSS to investigate physician complaints

A summer 2020 rule proposal allowing the Department of Health and Senior Services – Section for Medical Marijuana to investigate physician complaints will take effect in 30 days.

The rule, originally proposed and printed for public comment on July 1, 2020, “adds a procedure for investigating complaints against physicians, consequences for substantiated complaints, and a process for physicians to dispute complaints or appeal the department’s decisions regarding those complaints.”

Missouri has had several controversies involving certifying physicians since it began accepting patient applications in late June 2019. In June 2020, the Department investigated fraudulent certifications and found that a physician’s signature had been repeatedly used without authorization. Over 600 patients were affected by that fraudulent operation.

The rule, copied below in full, gives the Department an explicit list of actions they can take in the event of an investigation into a complaint against a physician.

• Physician Investigations. All complaints against physicians must be submitted via forms available on the department’s website. Complaints shall include the name and address of the physician against whom the complaint is made and a clear description of what violation(s) the complainant believes the physician has committed.
• (A) Within sixty (60) days of receiving a complaint against a physician, the director of the department’s medical marijuana program will determine whether an investigation is warranted. Investigations may also be initiated by the department.
• (B) If the department conducts an investigation pursuant to a complaint, the complainant will be notified of that decision, and the physician will receive a copy of the complaint. In the event the investigation is initiated by the department, the physician will receive a written description of the violation the department believes the physician has committed.
• (C) All investigations shall be completed within one (1) year of opening the investigation. Upon completion of an investigation, the department shall notify the physician of any department action and the reasons for that action. The director of the department’s medical marijuana program may conclude an investigation by taking any of the following actions:
  • 1. Dismissing the complaint; 
  • 2. Referring the complaint to the Missouri State Board of Registration for the Healing Arts;
  • 3. Referring the complaint to law enforcement; and
  • 4. Refusing to accept any new certifications from the physician for a reasonable period of time as determined by the director and adding the physician’s name to a publicly available list of physicians from whom the department is not accepting certifications. Such action shall only be taken upon concluding the physician has violated a provision of 19 CSR 30-95, Article XIV of the Missouri Constitution, or any other rule or law applicable to implementation of Article XIV. The length of time the department shall refuse to accept the physician’s certifications shall be based upon the following criteria:
    • A. Whether the physician acted recklessly or knowingly in violating an applicable rule or law;
    • B. The degree of imminent danger to the health of a qualifying patient the physician’s actions caused;
    • C. The degree or recurrence of falsification of a physician certification;
    • D. Whether the department has previously received substantiated complaints against the physician; and
    • E. Any aggravating circumstances.
• (D) Any physician aggrieved by the department’s actions taken pursuant to this section may file an application for a hearing with the department.  The department shall grant the application within fourteen (14) days after receipt by the department and set the matter for hearing.
• (E) The provisions of Chapter 536, RSMo for a contested case, except those provisions or amendments that are in conflict with this section, shall apply to and govern the proceedings contained in this section and the rights and duties of the parties involved.  The person requesting a hearing shall be entitled to present evidence, pursuant to the provisions of Chapter 536, RSMo relevant to the allegations.
• (F) Upon the record made at the hearing, the director of the department or the director’s designee shall determine all questions presented and shall determine whether the decision of the director of the department’s medical marijuana program shall stand. The director of the department or the director’s designee shall clearly state the reasons for his or her decision.
• (G) A person aggrieved by the decision following the hearing shall be informed of his or her right to seek judicial review as provided under Chapter 536, RSMo. If the person fails to appeal the director of the department’s findings within thirty (30) days of their issuance, those findings shall constitute a final determination.
• (H) A decision by the director of the department shall be inadmissible in any civil or criminal action brought against a physician. 

The authority to change this rule comes from Missouri’s constitutional program framework; the new amended rule is in 19 CSR 30-95.110 Physicians. DHSS currently has authority in other sections to investigate within its oversight of regulatory programs related to child care, hotels, food safety, nursing homes, and more.

A notice of proposed rulemaking containing the text of the proposed amendment was published in the Missouri Register on July 1, 2020 (45 MoReg 1005).

No changes have been made in the text of the proposed amendment, nor were any comments received by the Department regarding the proposed rule, so was not reprinted as a whole in the November 1, 2020, Register. This proposed amendment becomes effective thirty days after publication in the Code of State Regulations; it will take effect on December 1, 2020.