On July 26, 2017, the Pennsylvania Department of Health made available the long-awaited online application process for physician certification under the Pennsylvania Medical Marijuana Program.
In order to obtain certification, a physician must:
- Demonstrate to the DOH by training or expertise that he or she is qualified in treating one of the “serious medical conditions” eligible for treatment with medical marijuana including: Amyotrophic Lateral Sclerosis, Autism, Cancer, Epilepsy, Glaucoma, HIV/AIDS, Parkinson’s Disease and Post-traumatic Stress Disorder
- Successfully complete the required four-hour course established by the DOH
- Hold a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine
The DOH will establish and maintain an electronic database that includes a list of physicians that are registered with the program. Otherwise, physicians are prohibited from advertising as a physician who can certify a patient to receive medical marijuana.
A physician may issue a patient certification to a patient if all of the following conditions are met:
- The physician has determined, based upon a patient consultation and any other factor deemed relevant by the physician, the patient has a serious medical condition and has included that condition in the patient’s health care record.
- The physician has determined the patient is likely to receive therapeutic or palliative medical benefit from the use of medical marijuana based upon the physician’s professional opinion,
- The physician has reviewed the Prescription Drug Monitoring Program prior to issuing or modifying a patient certification to determine the controlled substance history of the patient to determine whether the controlled substance history of the patient would impact the patient’s use of medical marijuana.
- The physician has explained the potential risks and benefits of the use of medical marijuana to the patient and has documented in the patient’s health care record that the explanation has been provided and informed consent has been obtained.
The Medical Marijuana law restricts certifying physicians from having financial relationships with medical marijuana organizations or accepting compensation from a patient other than a fee for service with respect to a patient consultation. A physician is also prohibited from issuing a patient certification for the physician’s own use or for the use of a family or household member.
While the Department of Health has indicated that it surveyed physicians and found that of the 191 that participated, 75 percent said they would register with the program, there remains legal risk. While possession or distribution of medical marijuana is currently legal under Pennsylvania law under defined conditions, there is a conflict with federal law that still designates medical marijuana as a Schedule 1 “controlled substance” (a designation from the DEA meaning that, under federal law, there is “no currently accepted medical use and a high potential for abuse”). The Pennsylvania program provides some protection as the physician does not prescribe medical marijuana but simply designates the existence of the serious medical condition to the Department of Health.
Over recent years, the federal government, while maintaining marijuana’s illegal status under federal law, has issued directives to federal law enforcement officials to not pursue enforcement against individuals that are in possession so long as such individuals are doing so in compliance with state law. The status of even this limited protection is in question in the current administration, which has indicated that it is revisiting such policy.
Physicians with questions about participation in the medical marijuana program should contact a member of the Fitzpatrick, Lentz & Bubba’s Healthcare Department.