Experts project that serving patients under the Maryland medical cannabis law will begin in the spring or summer of 2017. Although physicians play a key role in the law, many physicians remain reluctant to participate. As of late July, only about 145 physicians had registered in the program. Common questions from physicians about their participation are addressed below.
Is cannabis illegal under federal law?
Because cannabis remains a Schedule I substance under the federal Controlled Substances Act (CSA), its possession, distribution and use are prohibited. The Schedule I status also carries a finding that the substance (1) has a high potential for abuse and (2) lacks any accepted medical use. There is no “medical necessity” exception under CSA enforcement, even where a person or organization is in compliance with state law.
Significantly for physicians, the CSA also prohibits the prescription of Schedule I substances. Physicians must be clear with patients that they cannot and will not prescribe medical cannabis.
The Department of Justice (DOJ), however, has stated a policy of deference to state and local enforcement in states that have a robust regulatory framework for medical cannabis.
If I certify medical cannabis in compliance with Maryland law, will I be subject to civil or criminal enforcement under the CSA?
No physicians have been prosecuted under the CSA for properly recommending or certifying medical cannabis to a patient. Also, an important federal appellate court held that physicians have a First Amendment right to discuss and recommend cannabis to a patient within a bona fide physician-patient relationship. There is no protection, however, for a physician prescribing cannabis or aiding-and-abetting or conspiring in its acquisition. For this reason, state medical cannabis laws employ a process of physician “recommendation” or “certification.” Accordingly, physicians who follow a proper process are not violating state or federal law.
Can the DEA revoke my registration for certifications?
Prior to 2002, the DEA sought to revoke some physician registrations. However, physicians’ First Amendment rights to recommend medical cannabis also protect against DEA de-registration.
Can I have an ownership interest in, or other associations with, medical cannabis businesses?
As recently as 2014, the DEA reportedly threatened physicians in Massachusetts with de-registration unless they severed ties with medical cannabis businesses. However, the Rohrabacher-Farr amendment of 2014, which prohibited the use of DOJ funds to prevent legal implementation of state medical cannabis laws, has made this more difficult. The laws of Maryland and most other states also have conflict-of-interest prohibitions that physicians must keep in mind.
Can I be kicked out of Medicare or Medicaid or terminated from a plan network?
A physician should not violate Medicare/Medicaid conditions of participation, which include compliance with state and federal laws, merely for proper cannabis certification. However, physicians should be careful about billing a federal program for a patient encounter involving even a discussion of medical cannabis. Physicians should keep apprised of insurer standards regarding medical cannabis, which will likely see significant development over the coming years.
Can I lose my medical staff appointment, clinical privileges or license for proper certifications?
This is highly unlikely so long as a physician is in compliance with state law and is engaging in First Amendment protected speech. Staff privileges and licensure carry due process protections.
However, physicians should be careful to comply with reasonable hospital rules.
Physicians should further be careful to observe ethical duties and the standard of care, as with any other type of care. Physicians must also comply with the strict requirements of the Maryland law, e.g., bona fide patient relationship and annual evaluation. Physicians in several states have been subject to adverse licensure action for operating “marijuana mills,” failing to examine patients and failing to communicate the benefits and risks of cannabis. Communication and consent remain particularly difficult given the lack of data on medical cannabis, a fact that is in large part due to its Schedule I status.
Because so much rides on effective compliance with state law – including federal and state enforcement, staff membership and clinical privileges, licensure, Medicare/Medicaid participation and network membership – physicians must establish an effective compliance program that includes proper policies and procedures, forms, documentation, and billing practices.
ABOUT JOSEPH T. KELLEY
Joseph T. Kelley III focuses his practice on healthcare law and issues of privacy, compliance, regulatory and administrative law. Mr. Kelley serves as compliance and privacy counsel to behavioral health care providers and other large and small businesses.
Mr. Kelley received his B.A. from Tulane University and his JD from Villanova University School of Law. He is a member of the American Health Lawyers Association, Association of Corporate Counsel. He writes and lectures on Privacy Information Governance and regulatory compliance in Behavioral Health and Long Term Care industries.
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