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Medical Marijuana: Know the Legalities of Prescribing

Medical Marijuana: Know the Legalities of Prescribing

The legalization of medical marijuana in 23 states (and counting) has given patients suffering from seizure disorders, nerve damage, glaucoma and cancer treatment a much-needed weapon in the war against pain. It has also left doctors uneasy, to say the least, about their role as gatekeepers of a federally controlled substance for which clinical research is limited. Some worry about legal liability. Others fear for their license, even in states where cannabis is approved for medicinal use. Their concern is not without merit.

"There are some issues physicians ought to look at before entering into this space," says Michael McGrory, a partner and healthcare attorney with Chicago-based SmithAmundsen law firm. "The rules vary state by state and they generally are not that strict, but physicians need to follow them to make sure their license is safe and that they're not exposing themselves to civil penalties from the state health department or similar agencies."

At issue, in part, is the nebulous legal status of medical marijuana in the United States. On the one hand, the federal government has banned marijuana as a Schedule I drug under the Controlled Substances Act of 1970 — placing it in the same category as heroin, ecstasy, and LSD, drugs which have "no accepted medical use and a high potential for abuse." As a result, research on the potential benefits of cannabis in the clinical setting has been minimal.

On the other hand, however, more than one-third of states have independently legalized the cultivation, distribution, and consumption of the drug for medical purposes. They are: Alaska, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington, as well as the District of Columbia. Each have laws providing for limited legal protections from arrest for authorized patients who use cannabis with a doctor's recommendation, according to the National Organization for the Reform of Marijuana Laws (NORML).

With federal and state laws in conflict, however, healthcare providers have sought similar protection for years. They got it in 2013 when the Justice Department declared U.S. attorneys would no longer pursue actions against physicians for recommending medical marijuana in states where it has been made legal, a ruling supported by the American College of Physicians. "ACP strongly supports exemption from federal criminal prosecution; civil liability; or professional sanctioning, such as loss of licensure or credentialing, for physicians who prescribe or dispense medical marijuana in accordance with state law," the College wrote in a recent position statement.

Indeed, the legal risk to doctors of certifying patients for medical marijuana is minimal, primarily because they don't directly prescribe or dispense the drug, says Paul Giancola, an attorney who specializes in regulatory healthcare for Phoenix-based Snell & Wilmer law firm. Physicians merely issue a written recommendation that certifies their patients suffer from one of the conditions for which medical marijuana has been approved in their state, which allows patients to obtain cannabis from a licensed marijuana dispensary or supplier, or grow it themselves in restricted quantities. Some states also require patients to show proof of residency, and most require patients who are under age 18 to be accompanied by a parent or guardian. "As a practical matter, nobody is going after doctors unless they're running a pill mill," says Giancola. "If someone is prescribing 400 prescriptions per month, then that puts them on the radar screen." A pill mill is a term used to describe a doctor, clinic, or pharmacy that prescribes or dispenses powerful narcotics inappropriately or for non-medical reasons.

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