Physician challenges under Pennsylvania’s medical marijuana law

In April 2016, Gov. Tom Wolf signed into law Act 16, legalizing medical marijuana in Pennsylvania. Since then, the Pennsylvania Department of Health (DOH) has awarded licenses to grow medical marijuana and to operate medical marijuana dispensaries. As of February 12, 2018, more than 150 physicians have been approved by the Pennsylvania Department of Health (DOH) to certify patients to participate in the state’s Medical Marijuana Program in Philadelphia and the surrounding counties of Bucks, Montgomery and Delaware. It is estimated that many more will register in the program.

Physicians registering under the Act face conflict between federal and state marijuana laws, limited education on efficacy and dosage of marijuana to guide recommendations to patients, and large numbers of patients seeking certification for medical marijuana.

Smart Business spoke with Jules S. Henshell, an attorney at Semanoff Ormsby Greenberg & Torchia, LLC, about how this law will affect physicians.

What does it mean to ‘certify’ patients for medical marijuana?

Act 16 does not permit the prescription of medical cannabis products. Instead, physicians are permitted to issue certifications to patients who qualify for medical marijuana treatment. To qualify, a patient must have one of 17 serious medical conditions.

To issue medical marijuana certifications, physicians must register with the DOH and complete a four-hour training course offered by a DOH-approved provider.

Physicians are required to be licensed to practice medicine in Pennsylvania and be qualified, by training or experience, to treat at least one of the serious medical conditions that are identified in Act 16.

Once registered, the DOH places the physician’s name, business address and medical credentials on the physician medical marijuana registry, available on its website. Physicians are not permitted to advertise that they are approved to certify patients for medical marijuana use. Registered physicians should consult counsel about conduct that constitutes advertising.

What must a physician do before providing a certification to a patient?

Registered physicians are required to consult with the patient and review the Prescription Drug Monitoring Program and the patient’s controlled substance history prior to providing a medical marijuana certification to a patient. Physicians must identify the recommendations, requirements and limitations as to the form of cannabis and the dosage. The certification also must state the length of time for which the physician believes medical marijuana will be therapeutic or palliative. Physicians may recommend that a patient consult with a medical professional employed by a medical marijuana dispensary, all of which must have a pharmacist on staff. Certifying physicians may defer to the pharmacist’s expertise.

Importantly, registered physicians must provide continuing care to their patients for the serious medical condition that qualifies under Act 16. During such ongoing care, physicians are required to notify the DOH if the patient no longer has the ‘serious medical condition’ previously certified, medical cannabis would no longer be therapeutic or palliative, or the patient dies.

What are some of the challenges and risks registered physicians face?

Approved physicians may face significant backlogs of patients seeking certification and must balance the demand with the ability to provide ongoing care.

Cannabis products are not a Food and Drug Administration approved treatment. Medical marijuana is illegal under federal law. While various federal appropriation acts have precluded the Department of Justice (DOJ) from spending funds on the prosecution of individuals engaged in compliant conduct permitted by state medical marijuana laws, the continuation of such protections are uncertain. U.S. Attorney General Jeff Sessions has vehemently opposed legalization of marijuana and has rescinded prior DOJ policy that discouraged investigating and prosecuting cannabis operations that are legal under applicable state law.

With the assistance of counsel, physicians can maximize compliance with Act 16 and minimize the risk of changing federal policy and enforcement priorities.

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