CBD shops are popping up all over the country, and 33 states have legalized some form of medical marijuana. But the reality is that marijuana is still a Schedule 1 substance according to the DEA. Federally, it’s illegal to use, sell, or possess marijuana in the U.S., regardless of what any state law says about it.
Even so, many neurologists believe their patients can benefit from marijuana’s therapeutic benefits. So how can they incorporate it into their practice without getting on the wrong side of the law?
It’s not easy. Both the physician and the patient accept some risk when they do.
You can probably guess that the most important legal recommendation is to get your own legal counsel on the topic. Each state has different laws about how these substances may be used. Understanding them so that you stay on the right side of both state and federal law is critical for you and your patients.
No blog post or presentation can cover the specifics you will have to deal with if you choose to go this route. But Steven P. Przybyla, Esq., Director of Cannabis Programs at Dent Neurologic Institute and President of Jushi Medical, presented on this topic at the American Academy of Neurology Annual Meeting in May. He provided some excellent food for thought. His presentation offers a jumping-off point for a conversation with your own lawyer.
Know Your Laws—Recommend, Don’t Prescribe
Because marijuana is a Schedule 1 substance, it is illegal to prescribe in almost all cases. But because of the sanctity of the physician-patient relationship, counseling patients on the available treatment options is protected free speech according to Conant v Walters. This means it is acceptable to recommend medical cannabis in states where it is legal, but if a physician crosses the line and prescribes it, they have aided and abetted a federal felony.
The key is to know and comply with your state laws—to the letter—when implementing in your own practice. Because of budgetary restrictions, Przybyla explains, the federal government “cannot currently enforce against physicians or states who are practicing a duefully [sic] enacted medical marijuana program.” The operative word here is “currently,” as we all know the federal government can change its policies at any time.
Przybyla shares some of the key components he believes any practice recommending medical marijuana should implement.
Establish a Drug-Testing Policy
Testing is essential to monitoring compliance of patients and understanding when medical marijuana is contributing to other substance abuse issues. It will help you understand which patients may be drug-seekers. It is also an aid when you consider opiate use and whether you are going to taper patients off of those drugs.
Przybyla recommends a multi-page consent form listing every single issue that could come up when using medical marijuana (don’t use while breastfeeding, don’t drive while using this substance, etc). This is essential with every single patient encounter because the patient is breaking federal law if they choose to follow a recommendation to use medical marijuana. It may protect you and your medical practice from litigation and investigation. The key is documentation of informed consent.
Along with the written disclosure, verbal counseling on these issues is critical, along with documentation of the conversation in the patient’s notes.
Advise Patients of Potential Repercussions
It is important to let patients know the impact choosing to use medical marijuana may have on their lives. Przybyla listed several potential repercussions:
- Failing a drug test as a federal employee will result in termination of employment.
- Positive results on pre-employment drug screening may result in not being hired, even if the patient has documentation that they are following a medical marijuana program in accordance with state law.
- Gun ownership is prohibited when using marijuana. It is a federal felony, so the consequences can be severe.
- Child custody disputes may be affected by medical marijuana showing up on a drug test.
These are just a few of the areas where medical marijuana can have a significant negative impact on the patient’s life. Patients need to be made aware that they are engaging in a federally-illegal activity, and the potential problems it can create are very real, regardless of state laws.
Choosing to recommend medical marijuana in your neurology practice may be the right decision. The key is to obtain expert legal counsel to protect you from any repercussions of the practice. If you run afoul of the law, both you and your patients will suffer. So no matter how many shops and dispensaries are operating in your neighborhood, make the decision wisely.