Health Law Matters

Medical Marijuana and the Terminally Ill: How Ohio Hospice Programs Can Learn to Cope with “Dope”

With nearly 20,000 registered Ohioans with medical marijuana recommendations, it is inevitable that Ohio Hospice program leaders will need to make a decision on medical marijuana as soon as possible.

Sadly, at least 107 of the 20,000 registered patients with recommendations are terminally ill; further demonstrating that palliative care institutions need to prepare for medical marijuana if they have not already done so. Family and friends will undoubtedly question the professionals caring for their loved ones: “Is it ok that he continues to use cannabis while here? He has a doctor’s recommendation.” Organizational decisions on medical marijuana utilization should be made before staff members are forced to unconfidently respond, “I don’t know.” To make that decision, it is important to consider some critical legal information, and when in doubt, reach out to me for further clarification.

First, when it comes to marijuana (medical or recreational), there are two bodies of law at play – federal and state. As many are aware, the federal Controlled Substances Act designates marijuana a Schedule I drug. This means marijuana cannot be possessed, prescribed, or administered. In contravention of federal law, Ohio legalized marijuana for specific medical conditions in a program that began sales in January of 2018. While our Constitution’s Supremacy Clause states that federal law trumps state law, the analysis does not stop there. See Gonzales v. Raich, 545 U.S. 1 (2005). Since 2014, the following provision has been included in the Consolidated Appropriations Act, which allocates money to the various departments of the federal government:

[n]one of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana [emphasis added].” Section 537, Commerce, Justice, Science and Related Agencies Appropriations Act, 2019

This provision has become known as the “Rohrabacher Amendment” due to its introduction by former California Representative Dana Rohrabacher. Despite Mr. Rohrabacher losing his seat in the November 2018 midterm elections, this provision lives on and is valid until September 2019. At that time, it will have to be reinserted into the next spending bill that will fund the agencies within the federal government, a practice that has occurred routinely since its inception in 2014.

Significantly, for Ohio Hospice programs, the Rohrabacher Amendment has been interpreted by the Ninth Circuit, and district courts within the Sixth Circuit (the federal court system with jurisdiction over Ohio) as prohibiting the Department of Justice (which includes the Drug Enforcement Administration) from using federal funds to interfere with those strictly complying with a state’s medical marijuana law.

Given that some Hospice programs fear losing federal funding, like reimbursement for Medicare/Medicaid, for permitting medical marijuana utilization in violation of the federal Controlled Substance Act, it is critical that Hospice program leaders understand the breadth and scope of the Rohrabacher Amendment. In a nutshell, to invoke the protections of the Rohrabacher Amendment, Ohio Hospice programs need to be prepared to show documentation, policies, and procedures that their medical marijuana conduct is in strict compliance with Ohio’s medical marijuana law (O.R.C. 3796, et seq.). Note: This is something I can help you do.

But before you contact me, let us review some important pieces of Ohio’s medical marijuana law by which you will need to abide if there is a desire to allow patients to utilize medical marijuana on your premises:

  1. Only registered patients and/or their registered caregivers can possess medical marijuana.
  2. Ohio medical marijuana has been made a Schedule II controlled substance under the law (along with a drug like Adderall).
  3. A registered patient can only designate up to two caregivers, and a caregiver can only serve up to two patients, unless the State Board of Pharmacy permits an individual to serve as a caregiver for more than two patients and for a patient to designate more than two caregivers: (a) in order to avoid unnecessary hardship to the patient or patients; or (b) where the patient's care is being provided in a licensed Hospice program.
  4. Healthcare employees of a Hospice provider cannot receive payment or compensation above or beyond their regular wages for serving as a caregiver.

Gaining a foundational understanding of Ohio’s medical marijuana law and the federal marijuana laws will help Hospice programs begin to figure out their approach and how to best communicate their policies to regulators and patients alike. It will be important to set expectations for patients, their families and friends before entering your facility to ensure that everyone is on the same page with treatment options. I would strongly encourage Hospice program leaders to develop a plan with which they all agree before any issues arise. With over $1.8 million dollars in sales and 245 pounds of medical marijuana sold to date, patient utilization continues to increase.

Please contact me – Brian Higgins (513-651-6839; bhiggins@fbtlaw.com) – with any questions your organization has related to medical marijuana. Our healthcare team has deep knowledge of the issues facing Hospice programs and would be happy to advise you on your operations.

Comments (1)

Posted by lori glaser-zakem, MD on March 26, 2019, 8:45 am:

Your article is well written and informative. Thank you for your continued input into this very important emerging field of medicine, and its potential effects on our society.

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James (Jim) A. Dietz is a Member at FBT who provides an array of legal services to hospitals, physicians, long-term care providers, diagnostic facilities, and others across the spectrum of patient care.

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