Medical Marijuana: Know the Legalities of Prescribing

February 16, 2016

If your practice is located in a state where medical marijuana is legal, make sure you know the risks before 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.

While Giancola says he is aware of no known cases involving doctors being successfully sued by patients for whom they recommended marijuana, he can envision a case where a patient who injures a third party while under the influence of legal cannabis might claim they were overprescribed. "Those are the same types of cases brought against doctors who prescribe opiates, but it would be very difficult to make that case in court," he says.

Where medical marijuana is concerned, the far greater threat to physicians involves the loss of their license. Indeed, state medical boards and federal prosecutors have come after doctors who don't play by the rules. In 2014, for example, a gynecologist from Lewiston, Maine, surrendered his medical license to the state board when investigators discovered he was writing medical marijuana certificates for male patients clearly outside his specialty. He also neglected to conduct and report medical histories and examinations as required, according to the state government.

That same year, federal investigators reportedly contacted as many as seven doctors in Massachusetts, where medical cannabis is legal and told them to sever ties with medical marijuana dispensaries or risk losing their Drug Enforcement Administration license to prescribe controlled substances. Each of the physicians held administrative or consulting positions with a company seeking a medical marijuana dispensary license.

In states where medical cannabis is legal, policy typically mandates that certifying doctors must maintain an appropriate distance between dispensaries and their practice to ensure no conflicts of interest arise. Most states also require that doctors maintain accurate medical records and documentation, check the pharmacy database to ensure patients aren't obtaining certifications from another provider, and complete a minimal amount (roughly four hours) of continuing medical education on the benefits and risks of medical cannabis. "When a physician recommends a patient for medical cannabis, they must make sure they comply with all their state requirements so they're not putting their license at risk," says McGrory, noting the most important requirement is that certifying providers maintain a legitimate doctor/patient relationship. Generally, that means the doctor conducted a thorough clinical visit, completed and documented a full assessment of the patient's medical history, explained the risks and benefits of marijuana use, and maintains a role in the patient's ongoing care and treatment. "You can't just walk into a storefront on the corner with a doctor you've never seen before and get a recommendation for marijuana," says McGrory.

Debra Goldberg, a former attorney and managing director of medical underwriting for Markel, Corp., a malpractice insurance carrier based in Glen Allen, Va., notes innovations in telehealth technology may also subject certifying physicians to scrutiny. Indeed, state medical boards across the country are still weighing in on whether doctors can conduct medical marijuana consults via telemedicine using secure tablets, smart phones, laptops and computers. "We haven't seen a lot of legal claims either way, but the risk comes in with meeting the standard of care for physicians who want to utilize telemedicine to certify patients," she says. Colorado, the first state to legalize cannabis for both medical and recreational use, has determined telemedicine consults are insufficient to recommend medical-grade cannabis, while California's medical board has given its blessing.

It's worth noting that doctors who feel leery about the efficacy of marijuana as a clinical remedy need not issue certifications at all. "There is nothing in the state laws or in any medical boards that would require physicians to provide certifications," says Goldberg. Those who do, can insulate themselves further by speaking with their medical liability insurance carrier to ensure coverage for issues stemming from medical marijuana recommendations, and ruling out conventional medical therapies for patients that seek a marijuana recommendation. "There's not a lot of legal risk if you're certifying properly," says Giancola. "Just be careful you're not being taken advantage of by patients who seek certifications from multiple providers, and make sure they have a condition for which the state has authorized its use."

Shelly K. Schwartz, a freelance writer in Maplewood, N.J., has covered personal finance, technology, and healthcare for more than 17 years. Her work has appeared on CNBC.com, CNNMoney.com, and Bankrate.com. She can be reached via editor@physicianspractice.com.

This article was originally published in the February 2016 issue of Physicians Practice.