the legal landscape of medical marijuana in missouri: what ... · persistent muscle spasms (e.g.,...

Meredith Duncan and Ellie Tucker

The Legal Landscape of Medical Marijuana in Missouri: What You Need to Know as a Healthcare Provider

State Constitutional Amendment

▪ In November 2018, voters approved an amendment to the Missouri state constitution

▪ Allows state-licensed physicians to recommend medical marijuana to certain patients with qualifying medical conditions‒ Legalizes the production, distribution, sale, and purchase of marijuana

for medical use only

▪ No reciprocity with other states

Does NOT legalize public use, even by qualified patients

For Medical Use Only

▪ "Medical use" means the production, possession, delivery, distribution, transportation, or administration of marijuana or a marijuana-infused product, or drug paraphernalia used to administer marijuana or a marijuana-infused product, for the benefit of a Qualifying Patient to mitigate the symptoms or effects of the patient’s qualifying medical condition

▪ Types of medical marijuana contemplated include:‒ Cannabis indica, Cannabis sativa, and Cannabis ruderalis, or other plants commonly

understood as marijuana

‒ Resin extracted from the plant

‒ Marijuana infused products (e.g. edible products, ointments, tinctures, concentrates)

Qualifying Medical Conditions

▪ To be eligible for medical marijuana, a patient must have a qualifying condition, which means the condition of, symptoms related to, or side-effects from the treatment of:‒ Cancer

‒ Epilepsy

‒ Glaucoma

‒ Intractable migraines unresponsive to other treatment

‒ HIV or AIDS

‒ Continued….

Qualifying Medical Conditions (cont’d)

▪ Debilitating psychiatric disorders (e.g. PTSD)

▪ A chronic medical condition that causes severe, persistent pain or persistent muscle spasms (e.g., MS, seizures, Parkinson’s, Tourette’s)

▪ A chronic medical condition that is normally treated with a prescription medication that could lead to physical or psychological dependence, when a physician determines that the medical use of marijuana could be effective in treating that condition and would serve as a safer alternative to the prescription medicine

▪ A terminal illness

▪ Continued…

Qualifying Medical Conditions (cont’d)

And, a catchall:

▪ In the professional judgment of a physician, any other chronic, debilitating or other medical condition, including, but not limited to, hepatitis C, amyotrophic lateral sclerosis, inflammatory bowel disease, Crohn’s disease, Huntington’s disease, autism, neuropathies, sickle cell anemia, agitation of Alzheimer’s disease, cachexia, and wasting syndrome

▪ (Cachexia = weakness and wasting of the body due to severe chronic illness)

Rights of a Qualifying Patient

▪ Obtain an ID card

▪ Designate up to 2 Primary caregivers

▪ May grow up to 6 flowering plants at home for use by the patient only (must obtain a separate ID card)

▪ Purchase, transport, possess, and use medical marijuana‒ Possess a maximum of a 60 day supply

‒ Purchase a maximum of 4oz of dried marijuana or equivalent every 30 days

▪ Can obtain an exemption from the limits allowed for possession or purchase with a certification by two independent physicians that the patient needs more than the limits

Limitations on use of Medical Marijuana

▪ Can’t sell it (unless authorized)

▪ Can’t give it to anyone else (unless authorized)

▪ Can’t have it or use it if not registered and without a qualifying medical condition

▪ Can’t use it in public (unless otherwise allowed by law)

Registry ID Cards

▪ $25 per year fee

▪ What to look for:‒Name of cardholder and designation of patient/caregiver‒Dates of issuance and expiration (1 yr expiration)‒Unique identifying number for each patient‒Unique identifying number for each patient/caregiver

relationship‒If caregiver, must contain the medical cannabis ID

number of the patient

How do you get an ID card?

▪ Submit an application to DHHS‒ Through an online portal, no paper accepted

‒ Biographical and contact information, including an email address

‒ Copy of a government issued photo ID

‒ Proof of current Missouri residency (e.g., driver’s license, utility bill)

‒ A certification by a Missouri-licensed physician that is not more than 30 days old

‒ Clear, color photo taken within the past 3 months

▪ Pay a fee

▪ Download it from the Missouri Medical Marijuana Program Registry Account (MMMP) – DHHS will NOT be providing physical cards

Issuance of the Medical ID Card

▪ Valid for 1 year from the date of issuance

▪ Must re-apply with a new application every year

▪ DHHS must either issue the medical ID card or provide a written explanation for its denial within 30 days of receipt of application

▪ If DHHS misses the 30 day timeframe, the patient may use their physician certification as if it were a medical ID card‒ Is this realistic?

Primary Caregiver

▪ “Primary Caregiver” means an individual 21 years or older who has significant responsibility for managing the well-being of a Qualifying Patient and who is designated as such on the primary caregiver’s application for an identification card under this section or in other written notification to the Department

▪ May possess a separate legal limit for each Qualifying Patient under their care‒ But can only be Primary for up to three (3) Qualifying Patients

▪ Must obtain their own Primary caregiver ID card

Physician Certification

▪ Valid only for 30 days

▪ Must be a Missouri-licensed physician

▪ Physicians will eventually submit through a DHHS online portal

▪ Signature of the physician must be handwritten, not typed

▪ Note that physicians are not required to complete the certifications; the law simply allows them to do so

Physician Certification

▪ Must include physician’s attestation that the physician has:‒ Met with and examined the qualifying patient

‒ Reviewed the qualifying patient’s medical records or medical history and current medications and allergies to medications

‒ Created a medical record for the qualifying patient regarding the meeting and is maintaining the medical record as otherwise required under state law

‒ Discussed with the qualifying patient or his or her guardian the following:

• The patient’s current symptoms

• Risks associated with medical marijuana, including known

contraindications applicable to the patient

• Risks of medical marijuana use on fetuses and breastfeeding infants

There’s still a lot for DHHS to figure out!

▪ Currently only have the Constitutional amendment and emergency rules as guidance

▪ DHHS is scrambling to implement the licensing scheme and rules for cultivators, dispensaries, testing facilities, transportation, and patient certifications

▪ Some, but not all, of the issues DHHS is working to issue rules concerning:

• Inspections of facilities

• Taxes

• Advertisements

• Security of facilities

• Sanitary requirements for facilities

• Labeling and packaging standards

• Record keeping

• State licensing procedures,

including an administrative penalty

scheme

• Testing facilities, including

equipment and personnel

• Guidance and instructions for local

law enforcement

Federal Obstacles

▪ Marijuana, in all forms, is still illegal under Federal law.‒ Controlled Substances Act, 21 U.S.C. § 801 categorizes marijuana as a

Schedule 1 substance.

‒ Thus the manufacture, distribution or possession of marijuana is a federal criminal offense.

‒ There is no federal law exclusion for Medical Marijuana

If you receive any Federal funding – you cannot acquire, store, administer medical marijuana for your residents.

Resident Rights Issue?

▪ SNFs face the strongest restrictions

▪ Some communities across the county have taken the position that a resident has the right to direct their own care and have developed policies that allow medical marijuana if the Resident:‒ Obtains a card;

‒ Acquires the cannabis ;

‒ Stores the cannabis in a locked safe, and

‒ Self-administers

▪ Smoking in designated areas; ‒ Provider can designate a space for the consumption of medical marijuana, or

‒ Can limit to consumption in ways that do not produce smoke

HUD Implications

▪ The HUD Operator Security Agreement for HUD Section 232 Mortgages provides in Section 3 on page 7 “Operator shall comply with the requirement of all valid and applicable federal, state and local laws.”

HUD Implications

Admission v. Retention: The Key Distinction

▪ Section 577 of the Quality Hosing and Work Responsibility Act of 1998 (42 U.S.C. 13662) requires owners of federally assisted housing to deny admission to anyone who is, at the time of application for admission, using a controlled substance that is illegal under Federal law.

▪ But the continued occupancy standard “allows” for termination by the owner if they come to learn an admitted resident is using a controlled substance that is illegal under federal law

See US Dept of Housing and Urban Dev Memorandum, “Use of Marijuana in

Multifamily Assisted Properties” (December 2014)

HUD Implications

So what should you do?

1. Maintain a policy that prohibits the admission of an individual that you determine is illegally using a controlled substance at the time of application

But what about the Fair Housing Act? HUD has also clarified that they do not consider a request to be allowed to use medical marijuana a reasonable accommodation due to the fact that it is illegal under federal law.

2. If you determine that an existing resident is using medical marijuana you MAYbut are not required to terminate residency. HUD has made it clear that it intends to allow the housing provider to allow the person to remain a resident.

So Now What Do You Do?

▪ Operational question

▪ Do you want to be involved with your patient/client’s use of medical cannabis?‒ HUD as an example? - You can

terminate residency if you want.

‒ Would you rather promote medical cannabis over opioids?

‒ What can you do to manage this with your clients?

Recommendations for Managing Medical Cannabis

▪ Four elements to successful management of Medical Cannabis as a Provider

1. Clear policy

2. Consistent enforcement

3. Expectations clearly communicated to residents

4. Staff education


▪ With respect to your patients/clients‒ Do you want a policy?

‒ Do you want a separate agreement?

‒ Do you want to prepare a contract addendum?

‒ Or is ignorance bliss?

Recommendations for Managing Medical Cannabis in Community

▪ If you want to document something:‒ Do you want to verify or get an acknowledgement that they are a

patient:

1. who has been diagnosed by a physician as having a debilitating medical condition

2. who possesses a valid registry identification card from IDPH

3. for the consumption of medical cannabis


▪ If you want to document something:‒ Do you want to set parameters of what they must do before they can

consume medical cannabis in the community?• Provide the valid ID card

• Provide the physician certification

• Provide proof of safe storage / Lockbox

• Complete/pass self-administration assessment

• Execute an agreement or acknowledgement of policy


▪ If you want to document something:‒ Do you want to set parameters of what type of medical cannabis can

be consumed in the community?• Limit to infused products only (food, oils, ointments)

• Prohibit smoking

• Must come from a Medical Cannabis Dispensing Organization


▪ If you want to document something:‒ Do you want to limit how residents consume it?

• In their unit?

• Independently?

• Without others present?

• Without sharing with others?


▪ If you want to document something:‒ Do you want to create an enforcement right?

• Failure to comply with policy, rules or agreement will subject resident to termination?

• If community has reason to believe resident obtained, stored, consumed or shared medical cannabis in violation of policy, rules or agreement, reserves the right to take action


▪ If you want to document something:‒ Do you want to specify consequences for violating rules, policy or

agreement?• Notify local law enforcement; and/or

• Notify the resident’s Physician; and/or

• Notify the regulatory agencies overseeing the medical cannabis programs as well as the regulatory agency that issued Your Registry Identification Card; and/or

• Terminate the Residency Agreement; and/or

• Take other such action as allowed by law.

Best Practices

▪ If you are going to be involved with Medical Cannabis, we recommend a written agreement with the patient/client that includes all of these terms.

▪ In our experience, the patients/clients do not push back and recognize that, in shared living space, there needs to be rules and enforcement if medical cannabis will be allowed.

Recommendations for Managing Medical Cannabis in Workplace

▪ What about employees?‒ Employers may prohibit or restrict the medical use of marijuana on its

property / during working hours.

‒ Employers can discipline employees for violating a workplace drug policy

‒ Employers are allowed to enforce neutral policies regarding drug testing and zero-tolerance, so long as the policy is applied in a non-discriminatory manner

‒ Employers can discipline employees for failing a drug test

Recommendations for Managing Medical Cannabis in Workplace

▪ What about employees?‒ CANNOT refuse to hire or discharge an employee for possessing a

card

‒ CANNOT ask whether a candidate has a card during hiring (could violate ADA / privacy laws)

‒ CANNOT fire candidates (or refuse to hire them) who test positive and have cards, even if this is not divulged prior to taking a drug screen.

• BUT, employers CAN require the employee to prove they were not impaired and/or did not use drugs on the worksite.

• The grey area is reasonable suspicion, since unlike alcohol testing, a positive test does not mean that an employee was impaired while working.

Questions?

Meredith A. Duncan

Shareholder

Polsinelli PC

150 N. Riverside Plaza

Chicago, IL 60606

312-873-3602

[email protected]

Ellie J. Tucker

Associate

Polsinelli PC

100 South 4th Street

St. Louis, MO 63102

314-622-6661

[email protected]

▪ Polsinelli PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

▪ Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee futureresults; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

▪© 2019 Polsinelli® is a registered trademark of Polsinelli PC. In California, Polsinelli LLP. Polsinelli PC (Inc) in Florida.

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