Richard Rubin remembers last May like it was yesterday.
That’s when the New Mexico Medical Board declared him an immediate danger to the public, and suspended his physician assistant license for a year—punishment for allegedly “prescribing” medical marijuana to hundreds of patients without being their primary caregiver, not working under the direct supervision of a doctor and failing to conduct proper clinical evaluations.
At the time, Rubin was under contract with Zia Health and Wellness in Albuquerque, where he helped determine patients’ eligibility to participate in the New Mexico Department of Health’s Medical Cannabis Program.
A longtime medical marijuana advocate, Rubin had referred 515 people,or a little more than six percent of all 8,200 certified patients, to the state’s cannabis program after lawmakers passed the 2007 Lynn and Erin Compassionate Use Act, the law that created the program.
In effect, Rubin is a casualty of the legal complexity governing medical professionals: While the Compassionate Use Act governs their participation in the medical cannabis program, a wholly different law—the Medical Practices Act—governs the state Medical Board. While Rubin insists he followed DOH rules, the Medical Board suspended his license for violating its rules.
But Rubin’s attorney, Paul Livingston, believes his client has been wrongly convicted—and he’s planning to fight back.
This week, Livingston filed a lawsuit claiming Rubin’s civil rights were violated and seeking to get his license reinstated.
But Rubin, out of work and feeling depressed, worries he won’t find employment again, even if his license is reinstated.
“You can’t put Humpty Dumpty back together perfectly,” Rubin says. “Even if the board exonerates me, the corporate world won’t hire me.”
He considers his punishment unfair.
“This wasn’t an evidence-based prosecution,” he says. “It was politics.”
Before his license was pulled, Rubin, a 60-year-old physician’s assistant, says he enjoyed helping people with debilitating medical conditions find relief from their symptoms. He recalls a former horse jockey who couldn’t eat.
“He had no appetite, and it looked like he was wasting away,” Rubin says. “His records and the weight charts confirmed he suffered from anorexia-cachexia.”
Rubin says that just a few months later, after being approved to use medical marijuana, the man looked better.
“He had added a few pounds and thanked me for helping him,” he says.
Rubin says he never enrolled patients in the program without the proper documentation.
“Patients who didn’t have medical records to back up their claims were commonly sent packing,” he says.
But while Rubin believed he was helping people, others disagreed.
In December 2011, an unnamed “community physician” complained to DOH about Rubin, writing in a letter that he was “potentially completing medical certification without clinical evaluations.”
That was just the start of Rubin’s troubles. Around the same time, a patient with post-traumatic stress disorder requested Rubin’s help to get his patient card renewed.
As Rubin tells it, he needed to confirm the diagnosis, so he called the man’s doctor: Presbyterian Healthcare Services behavioral health psychiatrist Steve Jenkusky.
A physician assistant named Pete Carmany answered the phone. According to a signed statement he provided to the Medical Board, Carmany was unaware of the patient’s participation in the medical cannabis program, and said Jenkusky had a policy of not enrolling PTSD sufferers in the medical cannabis program because “there is little evidence to support its use in the treatment of this condition.”
Rubin says Carmany ended the phone call with a promise to ask Jenkusky to verify the patient’s diagnosis with a signature.
“I thought he was going to fax it to me,” Rubin says. “But that’s not what happened.”
Instead, Rubin says Jenkusky himself called back a few days later.
“Right off the bat, he started challenging my professional ethics,” Rubin says. “He wanted to know if I had a therapeutic relationship with the patient and if I had any training in behavioral health. He also wanted to know how much I was being paid to make referrals.”
On Feb. 9, 2012, according to records, Jenkusky filed a complaint against Rubin with the NMMB for “promoting non-evidence-based care that could harm this patient.”
Jenkusky, who has served as a physician member on the state Medical Board since 2009, and was appointed by Gov. Susana Martinez last July to a position on the Board of Prescription Drug Misuse and Overdose Prevention and Pain Management Advisory Council, did not return SFR’s calls requesting comment. In his complaint, he wrote that he believed Rubin was intruding in the care of one of his clinic’s patients and acting unethically.
“As his licensing body, I would like to make a formal complaint to the board about his practice around facilitating patients of other providers obtaining medical marijuana licenses, especially when they are not his patients,” Jenkusky wrote. “He may be falsifying documents, claiming he is their provider and may be practicing without physician supervision.”
Jenkusky also raised concerns about Rubin’s professional ethics.
“If Mr. Rubin is filling out these forms, while stating he is not the caregiver, but is accepting payment (cash), for these services, he may be engaging in an unethical practice,” he wrote.
Rubin, unable to verify the PTSD patient’s diagnosis, says he never even sent his papers to DOH—but it was already too late. The investigation had begun. In a matter of weeks, Rubin would lose his license.
On May 17, the board voted to suspend Rubin’s license. Although he knew about the complaint, Rubin says he didn’t receive a formal Notice of Contemplated Action—the letter outlining the charges against him—until two weeks later, on May 29.
The NCA claimed that Rubin had violated the Medical Practices Act by failing to establish himself as a primary caregiver for, or maintaining a physician-patient relationship with, patients he referred to the cannabis program. It even warned that Rubin could face drug trafficking charges.
“It was absurd,” Rubin says. “All I was doing was making sure patients met the requirements to be certified as cannabis patients.”
Accusing Rubin of violating the state’s Medical Practices Act was wrong, Livingston says. A different law governs the cannabis program—and provides immunity for patients and medical providers in the program from criminal and civil penalties. The two laws also have different definitions of “primary caregiver,” Livingston explains.
“Their prosecution was based on an unreasonable application of the law and a total and egregious disregard for the statutory immunity provided under the Compassionate Use Act,” he writes in the legal complaint.
Steve Jenison, the DOH’s Medical Cannabis Advisory Board chairman, who was also the first medical director overseeing the cannabis program until his resignation in 2010, tells SFR he believes the medical board has conflated the two laws.
“In particular I was perplexed by the use of the term ‘prescribed’ since the [Compassionate Use Act] does not allow the prescription of marijuana, nor does any New Mexico law,” Jension writes in an email to SFR. “The use of the word ‘prescribed’ in my opinion is clearly inaccurate.”
In a Jan. 4 letter to Jenison, Medical Board Prosecutor Daniel Rubin (no relation to Richard Rubin) writes that the investigation “justifies the allegations.”
However, Jessica Gelay, a drug policy coordinator for the Drug Policy Alliance in Santa Fe, won’t comment specifically on Rubin’s case, but agrees that the board erred in using the term ‘prescribed.’
“Physicians in New Mexico (or anywhere else) do not ‘prescribe marijuana,’” Gelay writes in an email to SFR. “Practitioners certify that patients are eligible to participate in the New Mexico Medical Cannabis Program because they have one of the conditions eligible for program participation and have not been helped by other treatments.”
At first, Rubin thought he would be able get his license back, so he says he agreed to talk with Daniel Rubin without an attorney.
But Richard Rubin says he felt pressure to accept a deal, and he eventually signed a settlement agreeing to surrender his Drug Enforcement Agency license to prescribe controlled substances for 24 months. Reluctantly, he also agreed to stop “prescribing” marijuana until 2016.
Out of work, Rubin decided to take a break. He packed up his car and headed south to Oliver Lee Memorial State Park in the Chihuahuan Desert near Alamogordo, where he began writing a book on alternative health therapies.
Last fall, Rubin returned to Albuquerque to look for work and met Livingston, a civil rights attorney who’s worked on other medical marijuana complaints in New Mexico and wanted to represent him.
“I was shocked at what they did to Richard, because he didn’t do anything wrong,” Livingston says. “If they would have only followed the law, instead of trying to twist it for their own purposes, this wouldn’t have happened.”
Rubin’s suit names Jenkusky, the New Mexico Medical Board, the DOH and various other officials.
Livingston, who believes Rubin was singled out because of his advocacy for medical marijuana, says that, in addition to the civil court complaint, he plans to file a petition for license reinstatement with the NMMB.
“It’s time Rubin’s voice is heard in this matter,” he says.
Both Rubin and Jenison worry that medical professionals, already under pressure from medical groups and the federal government, could stop referring patients to the cannabis program if their licenses are jeopardized.
And meanwhile, Rubin’s former patients are struggling without him. DOH ordered 96 of his most recent patients to reapply to the medical cannabis program; Ed Gifford, who owns Zia Health and Wellness, says it cost him $10,000 to find other medical professionals to recertify patients.
What’s more, he notes, “Everyone who re-applied got certified. That tells me Richard got railroaded. He was doing everything by the book.”
Rubin, for his part, contrasts the use of medical cannabis with that of historic psychiatric treatments such as electroshock therapy and lobotomies. Clearly still in possession of his sense of humor, he suggests medical board members take “a few tokes of a good sativa strain. It’s good for self-reflection and insight. And apparently many other things.”
Peter St. Cyr is a contributing writer at the Santa Fe Reporter.