Vincent A. Dongarra

On December 1, 2017, Maryland’s medical cannabis program reached a major milestone. The first legal cannabis dispensaries in Maryland opened, putting the final piece of the state’s medical cannabis system into place. Other parts of the system were already in place, including a registry of patients and physicians, operated by the Maryland Medical Cannabis Commission (the “MMCC”).

Maryland is one of 29 states with medical cannabis laws, allowing physicians patients to use cannabis on the recommendation of a physician. However, the federal prohibition on cannabis and uncertain posture of federal law enforcement in the near future create a number of practical issues that physicians should keep in mind. This post gives a brief overview of legal and practice considerations for physicians under the Maryland law.

Recommendations and Registrations

One of the impacts of federal prohibition is that a physician may not prescribe cannabis. Cannabis is listed as a Schedule I drug “with no currently accepted medical use” by the Drug Enforcement Agency (“DEA”), which regulates prescription of controlled substances. Instead, under the Maryland Law, a physician “recommends” the use of cannabis to a patient. A patient can then use that recommendation to legally obtain cannabis from a dispensary.

Under the Maryland Medical Cannabis Law (the “Maryland Law”), the recommendation must come in the form of a written certification by a registered physician. Before issuing a certification, a physician must register with the MMCC by completing an online application. Any provider with an active, unrestricted license in good standing with the Maryland State Board of Physicians and actively registered to prescribe controlled substances in Maryland is eligible to register with MMCC.

The application is relatively straightforward: the physician supplies the relevant Board license number and CDS registration number, completes a checklist showing which approved conditions they plan to treat through recommendations for medical cannabis, and attests, among other things, they have not received anything of value from a licensed grower or dispensary. A registration is valid for two years.

Patient Relationships

Once a physician is registered with the MMCC, she may issue a written certification that will allow the patient to legally obtain cannabis from a licensed dispensary. The requirements for issuing a written certification for medical cannabis are:

  • A “bona fide physician-patient relationship” with the patient,
  • The patient’s condition must be severe,
  • Other medical treatments must have proven ineffective for the patient’s condition, and
  • The symptoms must reasonably be expected to be relieved by the use of medical cannabis.

The requirement for a bona fide physician-patient relationship simply means that a patient’s relationship with the physician cannot be a sham to obtain cannabis. Instead, the relationship must include all the normal elements of a legitimate physician-patient relationship. The regulations define the elements of such a relationship to include where a physician has:

  • Reviewed the patient’s relevant medical records and completed an in-person assessment of the patient’s medical history and current medical condition;
  • Created and maintained records of the patient’s condition in accord with medically accepted standards; and
  • A reasonable expectation that the physician will monitor the progress of the patient while using medical cannabis and take any medically-indicated action.

These elements should not surprise or be particularly burdensome to any licensed practitioner.

Wait, isn’t cannabis still illegal?

The Maryland Law protects physicians who act in accordance with the law from arrest, prosecution, or other actions by the state of Maryland. Importantly, this protection includes action by a professional licensing board, such as the Maryland Board of Physicians. However, physicians should understand the potential legal liability arising from federal prohibition.

In the past few years, the federal government has tended to ignore state-legal medical cannabis operations. The primary mechanism behind this discretion had been DOJ discretionary memoranda that encouraged prosecutors to focus on other priorities. In addition, since 2014 Congress has yearly amended its appropriations bills to prohibit the DOJ from using its funds to interfere with state medical cannabis programs.

After several years of relative stability, the federal position on state-legal cannabis is again uncertain. Attorney General Jefferson Beauregard Sessions III recently rescinded prior DOJ guidance and has actively lobbied Congress to not pass a new amendment restricting the DOJ’s discretion to go after medical cannabis. In response, lawmakers from both parties have put forth bills that would end federal prohibition or prohibit federal prosecution. At the time of this writing, the federal position in even the very-near future is unclear.

Even if the DOJ is unleashed on state medical cannabis programs, physicians are an unlikely target. Federal action in the past has focused on dispensaries and other businesses that keep large amount of cannabis and cash on hand that law enforcement can seize. To be clear, physicians have certainly been prosecuted, but usually for actions well outside the bounds of the Maryland Law (and often medical ethics). In addition, some courts have made it clear that a physician has a protected right to consult with a patient, including the right to discuss the pros and cons of cannabis use with patients. Specifically, in 2002, the 9th Circuit Court of appeals upheld an injunction against the Drug Enforcement Agency, preventing it from taking action against physicians where the sole basis for the government’s action is the physician’s professional recommendation of cannabis to patients. Conant v. Walters, 309 F. 3d 629, 633-634 (9 Cir. 2002), cert. denied, 540 U.S. 946 (2003). Caution is still in order because this 2002 case is not binding on Maryland courts, and it is unclear whether a court would view a recommendation under the Maryland Law as protected.

Conclusion

Cannabis law are changing rapidly, and what is true today may not be in the near future. As medical cannabis becomes more-widely accepted, physicians should take the time to understand how their state’s laws impact their practice. Physicians should also understand the current federal posture towards healthcare providers acting under state medical cannabis laws. The bad news is that this area of law is likely to continue to shift in complex ways. The good news is that an experienced attorney can help.

Vincent A. Dongarra founded Tred Avon Legal LLC to provide experienced counsel to healthcare, business, and estate-planning clients. Contact him to see if Tred Avon Legal LLC can help you with your legal needs.