By Kate Hickner
The Ohio Medical Marijuana Control Program is slated to become fully operational September 2018. Unlike certain stakeholders that have intentionally entered this space (such as medical marijuana cultivators and dispensaries), physicians and others will likely be impacted in some way by the Ohio medical marijuana laws, whether they like it or not. Even physicians who elect not to recommend medical marijuana may have patients who use medical marijuana. Or they may have patients with questions about their options regarding medical marijuana and the potential implications of using it. As the law in this area develops, it’s foreseeable that Ohio physicians may need to have a base level of knowledge regarding medical marijuana in order to obtain sufficient informed consent and comply with the standard of care. As a result, many Ohio physicians have questions about how the new law will impact their practices. Here are a few answers.
Physicians who have concerns about recommending medical marijuana are not alone. In 2016, the State Medical Board of Ohio (the “Medical Board”) surveyed all Ohio physicians to gauge their attitude about medical marijuana. About 3,000 physicians responded. Of those respondents, about 45% responded that they were unlikely to recommend medical marijuana. Many of the physicians expressed concerns about insufficient peer-reviewed research, a lack of training and education with respect to medical marijuana and marijuana’s status as a Schedule 1 controlled substance under federal law. In our experience talking with physician clients, it is this last concern that seems to cause the most angst.
Although Ohio has legalized medical marijuana under certain circumstances, marijuana remains illegal under federal law for both recreational and medical uses. As mentioned above, the United States Drug Enforcement Administration (the “DEA”) considers marijuana to be a Schedule 1 controlled substance (in other words, in the same category as heroin and LSD). Violations of the federal prohibition on the possession and use of marijuana can result in prison time, monetary penalties, loss of property and other severe consequences.
As a result of the bizarre tension between federal and state laws in this area, marijuana businesses operating consistent with state laws are still prohibited from opening bank accounts, registering their intellectual property and benefiting from typical federal tax deductions. Patients using marijuana, including those in Ohio, can be lawfully discriminated against on such basis by landlords, employers and others. Further, patients are sometimes subject to surprising consequences under federal immigration laws as well as workers’ compensation and unemployment laws. (On a lighter note, the situation has resulted in some very entertaining yet educational late night television segments by John Oliver and others.)
To complicate matters, the federal law as written is not always the federal law that is enforced. Despite marijuana’s classification as a Schedule I controlled substance, the federal government has issued guidance and passed legislation providing that, as of now, the federal government will generally not interfere with state medical marijuana programs. At the same time, United States Attorney General Jeff Sessions is working hard to change that. He advocates for vigorous enforcement of the federal laws prohibiting marijuana despite state laws to the contrary. Considering the conflicting and continuously evolving state of the law in this area, it is imperative that physicians who recommend medical marijuana stay abreast of developments as they arise.
Although the law in this area could be considered as clear as mud, physicians need and deserve some guidance. Luckily, there are certain things that we know for sure. For example, here are five things that every Ohio physicians should understand, whether or not they desire to obtain a Certificate to Recommend medical marijuana.
1. Physicians who recommend medical marijuana need to have a Certificate to Recommend from the Medical Board. Because of the status of medical marijuana under federal law, Ohio law permits physicians to recommend medical marijuana but not prescribe it. The Medical Board began accepting applications in March 2018, has already issued some Certificates to Recommend and will continue to review applications at each monthly meeting. Additional practical guidance, including a short and very informative video, can be found on the Medical Board website. Certificates to Recommend will automatically renew when physicians renew their licenses as long as the required continuing medical education (“CME”) requirements are satisfied.
2. Physicians must satisfy certain CME and other eligibility requirements in order to obtain a Certificate to Recommend. Briefly stated, most physicians who complete at least two hours of CME in certain Ohio State Medical Association (“OSMA”) or Ohio Osteopathic Association (“OAA”) approved courses will be eligible for a Certificate to Recommend. The CME courses are designed to assist in the diagnosing of qualifying medical conditions, treating qualifying conditions with medical marijuana and possible drug interactions. Additional information about available CME courses can be found on the OSMA and OAA websites. Briefly summarized, additional eligibility requirements include that the physician:
a) have an active and unrestricted Ohio license to practice medicine and surgery as an M.D. or D.O.;
b) have access to the Ohio Automated RX Reporting System (OARRS);
c) have an active DEA registration;
d) have never been denied a DEA or state prescribing license for various reasons;
e) have never had a DEA or state prescribing license restricted based upon various circumstances;
f) have never been subject to a disciplinary action by a licensing entity based on prescribing or certain other practices; and
g) have no financial relationship with a medical marijuana entity licensed or seeking licensure in Ohio. Physicians with an entrepreneurial spirit need to be particularly aware of this last requirement.
3. The Medical Board imposes specific and detailed requirements upon physicians who recommend medical marijuana. Failure to comply with such requirements can result in a failure to satisfy the applicable standard of care, professional disciplinary action, professional liability exposure and an increased risk of criminal prosecution. For example, the Medical Board rules require that physicians who recommend medical marijuana must establish and maintain a bona fide physician-patient relationship, including (a) an in-person physical examination of the patient by the physician; (b) a review of the patient’s medical history by the physician; and (c) an expectation of providing and receiving care on an ongoing basis. Further, the related medical record documentation must include numerous specific and detailed elements. Listing each and every documentation requirement is beyond the scope of this article. However, because of the importance of strict compliance in this area, we urge physicians who recommend medical marijuana to pull a copy of the actual Medical Board rules at issue and carefully review them – to not rely upon a secondary source or broad summary of the requirements alone.
Further, physicians who recommend medical marijuana should update their compliance policies and procedures to reflect the Medical Board documentation and other requirements that must be satisfied in order to recommend medical marijuana. This is especially true considering that the Ohio Medical Marijuana Control Program is anticipated to be one the most highly regulated state medical marijuana programs in the country. (As an aside, physician practices and other businesses should also bolster their employee handbooks, employment agreements and other documents to address whether physicians in their workforce will be permitted to recommend medical marijuana, whether their workforce will be able to use medical marijuana as patients and, if so, under what circumstances.)
4. All physicians should understand how the Ohio Medical Marijuana Control Program works from not only the physician but also the patient perspective. It’s important that physicians who recommend medical marijuana understand potential repercussions to patients as employees, tenants, non-citizens with immigration status, drivers and otherwise. Even physicians who elect not to recommend medical marijuana may have patients who use medical marijuana or have questions about their options and the potential implications of using medical marijuana. In order to lawfully use medical marijuana in Ohio, a patient must obtain a written recommendation from a physician with a Certificate to Recommend and then register (and have any caregiver register) with the State of Ohio Board of Pharmacy (the “Pharmacy Board”). The physician will submit the application for registration to the Pharmacy Board on behalf of the patient. The recommendation must show a diagnosis of one of the qualifying conditions and evidence the physician-patient relationship. Unlike the identity of physicians who have obtained a Certificate to Recommend, the fact that a patient has registered with the Board of Pharmacy will not be publically available. The patient registrations will be valid for one year unless the patient is terminally ill. In that case, the registration will expire after six months. Patients will be required to obtain medical marijuana from Ohio licensed dispensaries. Lastly, patients may only use medical marijuana in the forms and by the methods permitted under Ohio law – physicians are prohibited from possessing medical marijuana in the course of their practices.
5. Before recommending medical marijuana, physicians should determine, evaluate and mitigate other potential risks. For example, each employed physician who is interested in recommending medical marijuana should review whether the recommendation of medical marijuana is permitted by their employer. To that end, employment agreements, written policies and procedures, and position statements of the employer may be helpful. Note that some employment agreements also restrict outside activities or impose certain notice and transparency requirements, which may apply among other things to outside medical marijuana practices and investments. Further, physicians who desire to recommend medical marijuana should review their professional liability insurance policies to determine whether they will cover cannabis-related activity irrespective of the fact that it is illegal at the federal level. In the event that the insurance carriers may deny coverage for cannabis-related claims because of the federal government’s classification of marijuana as a Schedule 1 controlled substance, it’s advisable for the physician to explore other potential carriers that will cover such activity. Although Ohio law currently provides broad liability protection for physicians who recommend medical marijuana, the law is underdeveloped and is likely to be limited over time. Also consider that the limitation of liability set forth in the Ohio statutes does not prevent a plaintiff from bringing a claim even if it will ultimately be unsuccessful.
Briefly stated, it’s crucial for Ohio physicians to understand the Ohio Medical Marijuana Control Program, whether they elect to participate as recommending physicians. It seems that most physicians will at some point in their practices be asked questions about the availability of medical marijuana and will likely encounter patients who use medical marijuana in their practices. Physician practices also need to address these issues from an employment law perspective as they may have personnel who use medical marijuana as patients. There are numerous excellent sources of information on this topic, including, for example, health care attorneys, professional associations and state of Ohio websites.
The Ohio Medical Marijuana Control Program becomes operational in September 2018. The time for physicians to understand the impact upon their practices is now.