What recent statute and regulations describe actions that are legal under state law but illegal under federal law? The Medical marijuana statute and regulations. While it is now legal to use marijuana for medical purposes here in Massachusetts, it remains illegal under the Federal Controlled Substances Act and has not been approved by the Food and Drug Administration.
Health care providers seeking to comply with the new Massachusetts medical marijuana statute and its related Massachusetts Department of Public Health (MDPH) regulations will find that these contradictory state and federal laws raise some significant issues, such as:
- Will you “certify” in writing that it is appropriate for a patient to use marijuana for medical use if the patient’s medical conditions meet the MDPH regulatory requirements? The word “certification” as opposed to “prescription” is used in both the statute and the MDPH regulations.
- Have you developed policies and procedures for certifying or administering marijuana for medical use? Even if you don’t intend to issue such certifications or administer marijuana for medical use, what if patients who have been certified as appropriate to use marijuana are admitted to your health care facility?
- What is the potential liability for physicians who certify marijuana for medical use and for health care providers that administer it?
- How will the United States Attorney’s Office in Massachusetts follow the guidance regarding marijuana enforcement set forth in the so-called Cole Memorandum issued by the United States Department of Justice, Deputy Attorney General on August 29, 2013? The Cole Memorandum says that, where states have laws legalizing marijuana-related conduct and have regulatory systems in place to control compliance with those laws, the federal government will defer to state and local law enforcement and regulatory agencies to enforce those laws.
- Will physicians who certify marijuana for medical use retain their federal Drug Enforcement Administration (DEA) registrations?
- Will health insurers cover the cost of marijuana as a prescription drug when certified for medical use? Will they cover the cost of the clinical exam a physician is required to perform before certifying marijuana for medical use? Or the cost for a health care provider to administer the marijuana to a patient?
- Will Medicare or Medicaid cover the cost of marijuana for medical use?
- Will the Medicare/Medicaid certification status be at risk for providers who prescribe and administer medical marijuana?
- Will federal funding of community health centers be adversely affected if they certify and/or administer marijuana for medical use?
- Will federal grants and federal loans to health care providers be adversely affected if the providers certify and/or administer marijuana for medical use?
MDPH is now in the process of selecting the finalists who will receive one (or more) of the 35 medical marijuana dispensary licenses that will be available in year one. In the meantime, health care providers and administrators should consider the potential impact of these new regulations.
If you have any questions or concerns about how the medical marijuana regulations might impact you or your health care facility, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.