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This article is shared with LebTown by content partner Spotlight PA.
By Ed Mahon of Spotlight PA
HARRISBURG — When Pennsylvania lawmakers legalized medical cannabis in 2016, they struck an unusual deal: Physicians can approve patients for the program but they are banned from advertising that power.
Lawmakers feared advertising would encourage thousands of patients to flood the same doctor’s office solely seeking a medical marijuana card, or motivate physicians to excessively approve patients for profit.
Or, as one marijuana legalization advocate put it, lawmakers didn’t want “pot doctors.”
But six years later, that rule and the inconsistent enforcement that followed have given an advantage to largely unregulated certification businesses that stand to rake in millions of dollars each year courting Pennsylvania medical marijuana patients, a Spotlight PA investigation has found.
Those businesses typically offer to connect patients with partner physicians who can certify patients without actually advertising or identifying those physicians by name, a tactic that would be nearly impossible for an individual doctor or a private practice.
As a result, marijuana card companies promote themselves on the airwaves, run newspaper ads, offer discounts on sites like Groupon, and dominate Google searches for medical marijuana doctors. Some company websites even promise money-back guarantees if patients aren’t approved.
By contrast, individual physicians working on their own or in small practices can face harsh penalties for taking a similar approach — or even for simply noting on websites that they are among the state-approved physicians who can certify patients for medical marijuana cards.
Pennsylvania’s advertising restriction on physicians is a rare one, according to multiple medical cannabis law and policy experts. Of Pennsylvania’s neighbors, only West Virginia has a similar advertising ban for health-care professionals, a Spotlight PA review found, and regulators there have a more lenient interpretation of what certifying physicians are allowed to say online.
“It’s a terrible disadvantage to the physicians locally,” said Jeff Riedy, executive director of the Lehigh Valley chapter of the National Organization for the Reform of Marijuana Laws.
Companies frequently promote fees of $125 to $225 for a first certification, a document that allows a patient to receive a medical marijuana card from the state and shop at dispensaries. Riedy worries “quick-fix physicians” are asking leading questions and rushing through the process. Friends of his have received approval from certification company physicians — and then turned to Riedy with questions he said a doctor should have covered.
“It’s not necessarily legitimate and it leaves patients unsure of what’s going on,” he said, later adding, “I think it’s mostly just a monetary incentive for them to get the cash from people. They really aren’t so much concerned about directing the people in the right direction.”
A previous Spotlight PA investigation found two companies that offer to help patients qualify for medical marijuana cards — Releaf Specialists and Compassionate Certification Centers — made statements on their websites that multiple health policy and addiction treatment experts called misleading, incorrect, or possibly dangerous. Both companies defended the language they used when questioned by Spotlight PA, but the research they provided didn’t substantiate their claims.
One of those companies, Compassionate Certification Centers, had a media kit on its website that touts its large online audience: “OVER 150,000+ registered Medical Cannabis patients view our website on a regular basis!” The same 2020 media kit says, “We own the first page for the majority of all search engine searches.”
Practices at certification companies vary, and in interviews and public statements some operators said they were motivated by a desire to help people — not just turn a profit. They described the convenience they offer customers, the steps they take to verify that patients qualify, and the care they provide throughout the process. And regardless of how individual physicians connect with patients, doctors still have a responsibility to follow the requirements of Pennsylvania’s medical marijuana law.
Still, in the competition to attract potential medical marijuana patients, it’s not an even playing field.
The state’s medical marijuana law doesn’t mention certification companies, and a spokesperson for the Department of Health previously told Spotlight PA the agency doesn’t “have any regulatory authority” over them.
But the department does have power over physicians who certify patients. In addition to being licensed by a state board to practice medicine, these physicians also must be approved by the Department of Health to certify patients for medical marijuana. The agency has threatened to kick some practitioners out of the medical marijuana program for alleged advertising violations, documents obtained through Right-to-Know requests reveal.
And in at least one case, the department told a physician she could face even more serious consequences, alluding to the potential suspension or revocation of her license in a warning letter. If she didn’t remove “prohibited marketing items” from a website, the Department of Health wrote, one of the state medical boards could take disciplinary action against her license.
“I was shocked,” MaryFrances Koester, the physician who received that warning, told Spotlight PA. “Quite frankly, I was scared. And I was angry because I didn’t think I’d done anything wrong.”
Koester is an emergency medicine physician who decided to start her own cannabis telehealth business in Lackawanna County in 2020. She sees cannabis as a life-changing treatment option for many patients who suffer from chronic pain, anxiety, post-traumatic stress disorder, and other conditions.
In a letter dated May 2021, the department told Koester she violated state rules because of statements on the website for Cannabis Care Consultants. A video embedded in a blog post and information on a second page “advertise your services as a practitioner who can certify a patient to receive medical marijuana products,” the department said.
Koester updated the website. But in a response to the Department of Health, Koester disputed that what she did was advertising.
“Patients want to know about the practice/doctor they choose, at least the legitimate patients who are truly seeking medical help,” Koester wrote. She told the department her medical marijuana practice is “tiny,” and she might see five patients a week.
“I would work less, make more money, and not have the Director of Medical Marijuana writing threatening letters to me if I worked for one of these large companies,” she wrote in the same email. “But I believe that these organizations damage the legitimacy of medical marijuana and threaten the program.”
Her changes resolved the department’s concerns, she remains a registered practitioner in the state’s program, and she never faced disciplinary action on her license, recent public documents and responses to open records requests show.
Over a roughly four-year period, the Department of Health sent about a dozen letters to physicians, including Koester, for alleged medical marijuana advertising violations, according to documents provided in response to Right-to-Know requests. One of those letters threatened disciplinary action against multiple physicians.
In some cases, physicians or website managers responded by removing any references to medical marijuana and certifications from their websites. Other times — such as when the Department of Health alleged websites identified practitioners under the heading of “Medical Marijuana Doctors” or as a “Certifying Physician” — they removed specific information.
While the state has warned a small fraction of the roughly 1,800 approved medical marijuana practitioners in the state, the advertising ban has a broad impact, limiting how physicians communicate and creating extra barriers for patients.
“That’s very, very restrictive for the success of the program,” said Lauren Vrabel, a cannabis pharmacist in Allegheny County and a member of the national group Doctors for Cannabis Regulation.
The advertising ban does not affect pharmacists like Vrabel — in Pennsylvania, only medical doctors and doctors of osteopathic medicine can certify patients for medical cannabis. But Vrabel doesn’t think cannabis-certifying physicians should be treated differently than surgeons, dermatologists, and other practitioners who can describe the services they provide.
In other states, the advertising restrictions would be less important because there’s less uncertainty about which doctors can approve patients for medical marijuana. In Michigan, for instance, any licensed medical doctor or doctor of osteopathic medicine can do so.
But in order to certify patients in Pennsylvania, physicians must register with the state, complete a four-hour training course, and then receive final approval from the Department of Health. The large majority of physicians here have not gone through that process, which means they cannot certify patients for medical marijuana.
“By creating the registry and discouraging mainstream doctors, what we have seen pop up to fill that space is a bunch of what I would consider kind of gray-market operators,” said Chris Goldstein, a regional organizer with the National Organization for the Reform of Marijuana Laws.
The Pennsylvania Department of Health maintains a public list of approved medical marijuana practitioners that includes their county, name, location, and specialty. It does not, however, provide phone numbers or websites, and it doesn’t specify whether the physicians are accepting new patients.
Meanwhile, physicians who try to make themselves easier for patients to find can run into trouble.
What counts as advertising?
Jennifer Minkovich, a physician in Bucks County, told Spotlight PA she was aware of the restrictions on advertising, but she was still surprised to receive a warning from the Department of Health earlier this year.
The agency wrote that the website for The MMJ Advocate Doc included advertising when the site identified Minkovich as “certifying patients for the PA MMJ Program since the program got up and running in Dec 2017.” The department gave her 15 days to respond.
“I was not aware that the purely explanatory language used on a practice’s business website constitutes advertising/advertisement,” Minkovich wrote to the department in January after the practice updated the website. “I interpreted ‘advertising’ to mean advertising one’s services through purchased advertisement time/space such as on television, in a magazine, newspaper, on a billboard, etc. or through a purchased ads/space on the internet.”
Medical marijuana regulations adopted by the Department of Health define advertising as something published or disseminated “for a fee” and don’t specify if websites count.
What’s considered advertising was a point of contention in a dispute between the Department of Health and Goodblend Pennsylvania, a dispensary operator.
Dispensaries have different restrictions than physicians. The department’s regulations give it the power to approve all promotional, advertising, and marketing materials before those businesses use them. And attorneys for Goodblend pointed to an October 2020 email from a state regulator as they argued that information freely placed on websites does not count as advertising.
“Advertising is defined as something that you pay for, so social media posts and your website do not require formal advertising approval,” wrote Arthur McNulty, who is listed as a Department of Health compliance manager or compliance officer in department documents from recent years.
McNulty resigned from the department late last year, and a spokesperson didn’t directly respond to a question about McNulty’s definition of advertising. The department recently withdrew its case against Goodblend; an agency spokesperson declined to provide details on why.
In West Virginia, the state’s medical cannabis law — which passed after Pennsylvania’s — also bans physicians from advertising their ability to certify patients for the program. But the state’s Office of Medical Cannabis decided that “in order to facilitate patient access to registered providers acknowledgment of these services will be allowed on a practitioner’s website,” an agency spokesperson told Spotlight PA.
And unlike in Pennsylvania, West Virginia’s public list of approved medical cannabis providers includes phone numbers, websites, and email addresses.
Nine of the 11 advertising warning letters sent to Pennsylvania physicians involved alleged website violations, Spotlight PA found. All of the physicians or their representatives made changes and avoided a drawn-out legal fight, Right-to-Know records show.
“I think, in general, physicians really want to do the right thing. We want to be in compliance,” Minkovich told Spotlight PA. “It’s just difficult, obviously, if there’s an interpretation of a word that is outside … of how a layman would interpret it.”
‘Like the Wild West’
While reporting this story, Spotlight PA found multiple websites for Pennsylvania physicians and practices that made statements similar to ones that led to warning letters. But as of early February, none of those websites led to warnings for physicians, documents obtained by Spotlight PA show.
Most of the health department warnings to physicians noted the agency was responding to a complaint, but for others it wasn’t clear why officials decided to review their information.
In response to questions from Spotlight PA, the Department of Health declined to clarify how it decides which websites to review and what policies and procedures it follows to ensure its enforcement is consistent and fair. The agency also did not comment on what, if anything, physicians are told about advertising during the state’s required four-hour training for medical marijuana physicians.
“The department implements a pharmaceutical grade medical marijuana program in accordance with state law, which specifically outlines practitioner restrictions and prohibited practices,” spokesperson Maggi Barton said in a statement.
Some of the physicians who received warning letters, or representatives for them, told the department they weren’t aware of the extent of the state’s ban on advertising. A few pointed to similar statements on other websites or advertising by certification businesses.
In February 2020, an outdoor sign led the Department of Health to send a warning letter to physician Martin Maassen in Allegheny County. The sign included an image of a cannabis leaf and it promoted medical marijuana exams and certifications. It didn’t mention Maassen’s name, but the department said the listed telephone number was linked to his practice.
Maassen’s office responded quickly, health department documents show. Bill Kelly, the office’s general manager, told officials he “directed the people responsible to remove the sign immediately and effective this day no more signs will be placed advertising certifications.”
“We only were trying to find ways to let people know the services we can provide,” Kelly wrote to the department, adding that some of the practice’s patients had instead gone to a certification business “because of their barrage of ads.”
In a recent interview, Kelly still sounded baffled by the different advertising rules for physicians and businesses.
“These big corporations, it’s like the Wild West to them. Nobody seems to do anything,” Kelly said. “So either it’s going to be the Wild West, or let’s all play by the same rules.”
An equal system?
Shelly Hutchison, a registered nurse, said she started her medical marijuana certification company a few years ago and runs it out of her Allegheny County home. It’s a small operation, she said, made up of herself, two physicians, and a patient care specialist.
She sees her business, Medical Marijuana Specialists, as different from the “big-box companies” that help certify patients.
“I put more heart and soul into it because this is my life and this my dream,” Hutchison told Spotlight PA. “Some people might be cheaper. … But I don’t think you’ll find a more personalized experience.”
When people first call or reach out to the company online, they connect with Hutchison or her patient care specialist. The company offers to handle certifications entirely over the phone and through email, and the process can be completed in one day.
The company asks new patients to share one form of documentation for their qualifying condition. Once their paperwork is complete, they pay a fee in order to receive a call from one of the company’s two physicians who issue the certification. Certifications can last up to a year, and Hutchison encourages patients to reach back out to the company with questions or concerns.
“Anything that they need, we’re available any time,” she said.
Her company is allowed to advertise in print and on the radio, and Hutchison said she’s done so.
While the Department of Health has said it doesn’t have “regulatory authority” over certification companies, it can take action against physicians associated with them.
A physician affiliated with Hutchison’s business received a warning letter from the department in December 2020 because the company website allegedly included his photograph, identified him by name as the medical director, and said he was a certifying physician. Hutchison was surprised that information counted as advertising, but said the company responded by removing it from the website.
“I think it’s an equal system, because it’s not like some docs are advertising and some docs aren’t,” Hutchison said. “It’s across the board.”
Another business, Compassionate Certification Centers, removed information about practitioners from its website after the Department of Health sent a warning letter to a physician associated with the company in December 2020.
The business is allowed to advertise in other ways, and in an email to Spotlight PA, the company’s CEO, Melonie Kotchey, said the state’s advertising restrictions help the program. “[I]f they go anywhere else they won’t have specialized doctors on staff ready to help and answer questions and remind them to do XYZ,” Kotchey said, “and we follow up in case they need help.”
During a recent state House Health Committee hearing in Harrisburg, state Rep. Tim Twardzik (R., Schuylkill) expressed concerns about certification companies — and wasn’t satisfied with the answer he received. He asked if the Wolf administration had looked into whether companies that advertise on Groupon provide proper oversight and care to patients.
Denise Johnson, the state’s physician general who was later named acting health secretary, told Twardizk that the Department of Health has requirements for individual physicians. But she didn’t mention oversight of the businesses he asked about.
“It didn’t seem like there was much of a response,” Twardzik later told Spotlight PA. “So we have some follow-up to do.”
Spotlight PA reached out to several certification companies about the state’s advertising rules. Most didn’t respond or declined to comment. But the owner of one Pennsylvania-based company, John DiBella of The Sanctuary Wellness Institute, was surprised physicians received warnings for statements on their own websites.
Even though the ban gives an advantage to businesses like his, he criticized the rule, saying it limits options for physicians who don’t want to work for larger companies.
“It really seems unfair to me,” DiBella said. “It seems undemocratic.”
A compromise with stricter rules
Pennsylvania’s advertising restrictions were created by lawmakers as part of a broader compromise several years ago.
Medical marijuana bills that passed in the Republican-controlled Senate in 2014 and 2015 included some advertising restrictions on practitioners, but not a blanket ban. Those measures would have prevented physicians from advertising inside cannabis dispensaries and the facilities of growers and processors — a restriction similar to what exists in Delaware.
The 2014 bill died in the House, and the 2015 bill stalled. Then a bipartisan group formed in the House to try to negotiate a compromise, which lawmakers unveiled months later as an amendment.
The group didn’t agree on all issues, but they reached a consensus “so that medical marijuana could become part of the therapeutic arsenal of physicians,” then-state Rep. Ron Marsico (R., Dauphin) said as he introduced the compromise plan.
The amendment included many changes. When Marsico described the highlights on the House floor, he didn’t mention the advertising restrictions. The next month, Democratic Gov. Tom Wolf signed a compromise medical cannabis bill into law that included an absolute ban on physician advertising.
Marsico retired from the House in 2018. During a recent interview, he told Spotlight PA the advertising restriction was a “patient-friendly amendment” to help people find physicians who were properly trained and credentialed.
Lawmakers wanted to make sure “all the medical professionals had approval from the department before they could hang out a sign to advertise,” he said. The ban today is much broader than that, Marsico acknowledged. He said he wasn’t familiar with certification companies or advertising by those businesses.
Several current lawmakers who served on the bipartisan workgroup didn’t respond to requests for comment or didn’t provide details on the intent of the restriction. Two that did — Reps. Jesse Topper (R., Bedford) and Peter Schweyer (D., Lehigh) — emphasized the restriction was a part of a broader compromise. Schweyer voted in favor of the final medical marijuana bill, while Topper voted against it.
While all of the Pennsylvania physicians Spotlight PA spoke with knew about the restrictions on advertising, some of the officials tasked with providing oversight knew little to nothing about the extent of the state’s enforcement.
“I was completely unaware of those restrictions,” John T. Adams, the Berks County district attorney and a member of the state’s Medical Marijuana Advisory Board, told Spotlight PA in April. “It has never been discussed at any meeting that I’ve ever attended.”
Still, when asked about rules banning advertising by physicians — but not businesses — Adams had a straightforward take: “Well, that doesn’t seem fair.”
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