In April 2016, Governor Wolf signed the Medical Marijuana Act into law, which went into effect on May 17. The Pennsylvania Department of Health (DOH) is in the process of preparing regulations that will govern grower/processors, dispensaries/laboratories, patients, caregivers, and physicians. Given that regulations have yet to be finalized and the possession and use of marijuana, a Schedule I controlled substance, is still a violation of federal law, physicians must navigate these waters carefully.
I am a physician. Now that the Medical Marijuana Act has gone into effect, may I now prescribe marijuana to my patients?
No. First and foremost, physicians will not “prescribe” medical marijuana under Pennsylvania’s program. Rather, select physicians will be permitted to issue certifications to patients to obtain medical marijuana from registered distributors.
There are three requirements for a physician to be included in the registry of physicians authorized to issue certifications to patients to obtain medical marijuana. First, a physician must apply for inclusion in the registry with the DOH. Second, a physician must demonstrate that s/he is qualified to treat a serious medical condition. Third, a physician must complete a four-hour training course approved for CME credits by the State Board of Medicine or the State Board of Osteopathic Medicine. Registration is subject to annual review and may be revoked if a physician’s license expires or is subjected to disciplinary action.
How do I become a registered physician permitted to issue medical marijuana certifications to my patients?
Before issuing a certification, the physician must consult the Prescription Drug Monitoring Program to ascertain the controlled substance history of the patient. Based on this review, the patient may not be a good candidate to receive a medical marijuana certification. Registered physicians must also consult this program before recommending a change in the amount or form of medical marijuana for a patient.
To issue a certification, a registered physician must diagnose and document in the patient’s medical records that the patient has a serious medical condition (cancer, HIV/AIDS, ALS, Parkinson’s Disease, multiple sclerosis, damage on the spinal cord, epilepsy, inflammatory bowel syndrome, neuropathy, Huntington’s disease, Crohn’s disease, PTSD, intractable seizures, glaucoma, sickle cell anemia, severe chronic or intractable pain of neuropathic origin, or autism) or terminal illness. The certifying physician must conclude that the patient will receive therapeutic or palliative benefit from the use of medical marijuana. Moreover, the patient must remain under the physician’s continuing care for that serious medical condition or terminal illness. The certifying physician must give copies of the certification to the patient and DOH as well as maintain the certification in the patient’s medical record.
What will my patient do with a medical marijuana certification?
The certification will allow a patient (or the patient’s caregiver) to obtain medical marijuana from a registered dispensary/laboratory. It should be noted that medical marijuana may only be dispensed in the following limited forms: pill, oil, topical forms, a form medically appropriate for administration by vaporization or nebulization, tincture, or liquid. Medical marijuana may not be dispensed in dry leaf or plant form. Smoking marijuana also remains unlawful.
After I certify a patient to receive medical marijuana, do I have any other obligations?
Yes. The physician’s obligation does not end when s/he bestows a certification on a patient. As previously mentioned, the patient must remain under the physician’s continuing care for the serious medical condition or terminal illness for which the medical marijuana certification was provided. The certifying physician also has an affirmative obligation to notify the DOH if the patient no longer has a serious medical condition for which the original certification was issued, medical marijuana would no longer be therapeutic or palliative, or the patient has died.
What if my patient is too ill to personally obtain medical marijuana?
A patient may designate up to two caregivers to obtain medical marijuana. Caregivers should obtain a Safe Harbor Letter from the DOH to possess and administer medical marijuana. Pennsylvania is already processing applications for and issuing Safe Harbor Letters. These letters permit parents, legal guardians, caregivers, and spouses of minors under 18 to possess medical marijuana. As of August 18, 2016, 53 Safe Harbor Letters have been approved. Caregivers should be reminded that, under federal law, marijuana is a Schedule I controlled substance. Accordingly, the U.S. Department of Justice may enforce civil and criminal federal laws regarding marijuana use and possession.
It appears that medical marijuana will be tightly regulated in Pennsylvania. What can’t I do?
Physicians cannot receive money or any other remuneration (outside payment to examine a patient) in exchange for certifying a patient to receive medical marijuana. Registered physicians also may not have any financial interest in a medical marijuana organization (e.g., growers/processors, dispensaries/laboratories). Physicians may not advertise her/his ability to issue medical marijuana certifications.
Physicians are also strictly prohibited from issuing certifications for themselves, their family members, and their household members. This is a significant departure from the norm as some physicians place their license in “active retired” status specifically so that they may continue to write prescriptions for themselves or immediate family members. Failure to adhere to these requirements will subject the physician to disciplinary action before the State Board of Medicine or State Board of Osteopathic Medicine.
Wait. I understand that marijuana is still illegal under federal law. Won’t recommending marijuana subject me to criminal action?
Probably not. The United States Court of Appeals for the Ninth Circuit considered this issue in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). The federal government appealed a permanent injunction precluding it from revoking a physician’s license or investigating a physician who “recommends” the use of medical marijuana. The federal government argued that the recommendation was tantamount to a “prescription” for an illegal, controlled substance. The Ninth Circuit held that within the context of a bona fide doctor-patient relationship a physician may not only discuss the advantages and risks of marijuana use and even recommend the use of marijuana without fear of legal repercussions, a physician may do so whether or not s/he anticipates the patient will attempt to obtain marijuana. However, a physician may not prescribe or dispense marijuana. Pennsylvania’s medical marijuana program carefully adheres to this standard of allowing a physician to recommend therapeutic or palliative use without prescribing or dispensing marijuana.
Currently, federal law makes no distinction between recreational and medical use of marijuana. In addition, the Obama administration has indicated that it does not consider state medical marijuana cases a priority. Congress has also approved a budget amendment that prohibits Department of Justice funding to be used to prevent states from implementing medical marijuana laws.
Will my medical malpractice insurance carrier provide coverage should a malpractice case arise as a result of my recommendation/certification?
It depends. To avoid a scenario where your insurance carrier attempts to disclaim coverage or tries to defend subject to a reservation of rights letter, it would be wise to specifically inquire into whether your policy would cover certifications and/or recommendations for medical marijuana use. Given that the Medical Marijuana Act was only passed a few short months ago, there is an argument to be made that any existing insurance policy would not cover this conduct.
Because there is much to be learned about the impact of this law, physicians must tread carefully. There are several wide-ranging implications (i.e., licensure, federal criminal laws, malpractice insurance, etc.) for any physician opting to certify patients to obtain medical marijuana. Consulting experienced healthcare legal counsel will be important to successfully navigate this new law.