IHA Summary: Legislation on Medical Use of Marijuana

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1 SUBJECT: IHA Summary: Legislation on Medical Use of Marijuana On August 1, 2013, Governor Pat Quinn signed into law the Medical Cannabis Pilot Program Act, Public Act (HB1), which provides a process for an individual who suffers from a debilitating condition to register with the state in order to obtain cannabis (marijuana) for medical use. The Act, which implements a four-year pilot, will affect hospitals in the following ways: PA does not permit smoking cannabis in any health care facility i.e., hospitals, nursing homes, hospice centers, or any other place where smoking is prohibited under the Smoke Free Illinois Act. For use other than smoking, such as consumption of cannabis-infused products, hospitals are free to adopt their own policies to allow, restrict, or prohibit the medical use of cannabis. A physician can choose to provide written certification that a patient has a debilitating medical condition that would benefit from the medical use of cannabis. Questions remain regarding the enforcement of the federal prohibitions related to cannabis, and whether such enforcement will impact the implementation of this Act. This summary offers an initial description of key provisions of the Act relating to patients, physicians and hospitals and other health care facilities. It is based on our current understanding, prior to the development of rules and processes that will provide important details. Please share this summary with relevant staff, such as physician leaders, nursing, legal, operations and risk management. While the Act was effective January 1, 2014, licensed dispensaries and cultivation centers are only now preparing for initial product sales to patients and caregivers. It will be Spring 2016 before the majority of the licensed facilities are operational, but initial sales from a few cultivation centers and dispensaries are expected late October/early November The entire text of the Compassionate Use of Medical Cannabis Pilot Program Act can be accessed at A. Background The Act states that studies have demonstrated the therapeutic value of cannabis in treating pain, nausea and other symptoms associated with a wide array of debilitating medical conditions, including cancer, multiple sclerosis and HIV/AIDS. Twenty-three other states and the District of Columbia have enacted legislation removing state-level criminal penalties from the medical use and cultivation of cannabis.

2 Page 2 The purpose of PA is to protect patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution, criminal and other penalties, and property forfeiture if the patients engage in the medical use of cannabis. Medical use means the acquisition; administration; delivery; possession; transfer; transportation; or use of cannabis to treat or alleviate a registered qualifying patient s debilitating medical condition or symptoms associated with the patient s qualifying condition. B. Role of State Agencies Three Illinois agencies oversee the process for providing and obtaining medical cannabis. (1) The Dept. of Public Health will maintain a confidential registry of qualifying patients authorized to engage in the medical use of cannabis and their caregivers; distribute educational material about health risks associated with abuse of cannabis and prescription medications; adopt rules to administer the patient and caregiver registration programs and adopt rules to establish food handling requirements for cannabis-infused products for consumption. (2) The Dept. of Agriculture will enforce the Act s provisions on registration and oversight of cultivation centers. (3) The Dept. of Financial and Professional Regulation will enforce provisions of the Act relating to registration and oversight of dispensing organizations. In addition, the Illinois State Police will conduct criminal background checks on those participating in the pilot. C. How a Patient May Obtain Cannabis for Medical Use A patient with a qualifying condition or a designated care giver must comply with requirements of this Act and rules promulgated to implement it, in order to obtain a designated amount of cannabis for medical use. In general, the procedure is: A physician signs a written certification that a patient (two certifications are required for a patient under the age of 18) has a qualifying condition and that, in the physician s professional opinion, cannabis may help the patient. Patient or caregiver applies to state for a registration card and the state issues the card. A qualifying patient or designated caregiver with a registration card may purchase up to 2.5 oz. of cannabis from a registered dispensing organization/agent every 14 days, unless the patient receives a waiver to purchase a larger amount. The dispensing organization may purchase only from a medical cannabis cultivation center that is registered with the Illinois Dept. of Agriculture.

3 Page 3 D. Role of Physicians A physician does not prescribe cannabis for his or her patient; rather, the physician provides a written certification to the patient that enables the patient to apply to begin the process of obtaining medical marijuana. A written certification is a document, dated and signed by a physician, stating that: (1) In the physicians professional opinion the patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient s debilitating medical condition or symptoms associated with the debilitating medical condition; (2) The qualifying patient has a debilitating medical condition and specifying that condition; (3) The patient is under the physician s care for the debilitating medical condition. A written certification shall be made only in the course of a bona fide physician-patient relationship, after the physician has completed an assessment of the qualifying patient s medical history, reviewed relevant records related to the patient s debilitating condition, and conducted a physical examination. Other licensed practitioners may NOT substitute for the physician in this role. A physician is not subject to arrest or disciplinary action solely for providing written certifications. However, a physician may receive sanctioning by a professional licensing or disciplinary board for (1) issuing a written certification to a patient who is not under the physician s care for a debilitating medical condition; or (2) failing to properly evaluate a patient s medical condition or otherwise violating the standard of care for evaluating medical conditions. Requirements for Physicians. A physician who certifies a debilitating medical condition for a qualifying patient must comply with the following requirements: Hold a current license under the Medical Practice Act, be in good standing, and hold a controlled substance license; Comply with the Medical Practice Act, all applicable rules and standards of medical practice; Conduct the physical examination required by this Act in person and not by telemedicine or other remote means; and Maintain a record-keeping system for all patients for whom the physician has recommended the medical use of cannabis. These records shall be accessible to and subject to review by the Dept. of Public Health and the Dept. of Financial and Professional Regulation upon request.

4 Page 4 A physician may not: Accept, solicit, or offer any form of remuneration from or to a qualifying patient, primary caregiver, cultivation center or dispensing organization other than accepting payment from a patient for the fee associated with the examination required prior to certifying a qualifying patient; Offer a discount to a patient who agrees to use a particular primary caregiver or dispensing organization to obtain medical cannabis; Conduct the physical exam required to diagnose a debilitating condition at a location where medical cannabis is sold or distributed or at the address of a principal officer, agent or employee of a medical cannabis organization; Hold a direct or indirect economic interest in a cultivation center or dispensing organization if he or she recommends the use of medical cannabis to qualified patients or is in a partnership or other fee or profit-sharing relationship with a physician who does; Serve on the Board of Directors or as an employee of a cultivation center or dispensing organization; Refer patients to a cultivation center, a dispensing organization, or a registered designated caregiver; or Advertise in a cultivation center or a dispensing organization. The Dept. of Public Health may with reasonable cause refer a physician to the Illinois Dept. of Financial and Professional Regulation for potential violations. Any violation of this Act or rules adopted under this Act is a violation of the Medical Practice Act of E. Implications for Hospitals and Other Health Care Facilities No smoking. PA does NOT permit smoking cannabis in any health care facility, i.e., hospitals, nursing homes, hospice centers, or any other place where smoking is prohibited under the Smoke Free Illinois Act. The Act does NOT permit smoking cannabis in any public place where an individual could reasonably be expected to be observed by others. Policies on Consumable Cannabis. While the Act prohibits smoking of cannabis in health care facilities, hospitals are free to adopt policies that permit, restrict or prohibit other uses of cannabis, such as consumption of cannabis-infused products in the hospital. The Act covers the rights of private and public institutions in separate sections: Section 30 (h) allows private businesses, which includes private hospitals, to restrict or prohibit the medical use of cannabis.

5 Page 5 Section 140 allows units of local government, which includes public hospitals, to adopt reasonable restrictions on the medical use of cannabis. For the purpose of medical care, including organ transplants, a registered qualifying patient s authorized use of cannabis is considered the equivalent of the authorized use of any other medication used at the direction of a physician, and may not constitute the use of an illicit substance or otherwise disqualify a qualifying patient from needed medical care. Policies that permit the use of cannabis in the hospital should be consistent with hospital policy on other drugs the patient brings to the hospital. If the hospital policy prohibits the possession and use of cannabis in the hospital, or on its property, the policy may include how the facility will handle a situation in which a patient brings cannabis to the hospital; which pain medications may be prescribed as a substitute, and similar considerations. Other Health Care Facilities. The Act provides that within 120 days after the effective date, the Dept. of Public Health shall address reasonable rules concerning the medical use of cannabis at a nursing care institution, hospice, assisted living center, assisted living facility, assisted living home, residential care institution, or adult day health care facility. At this time IDPH has not proposed any such rules. No Reimbursement Required. Nothing in the Act requires government payers or private insurers to cover the costs associated with the medical use of cannabis. F. Hospitals as Employers Nothing in this Act prohibits an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace, provided the policy is applied in a nondiscriminatory manner. Employers, including hospitals, may allow the consumption of cannabis by employees who are registered qualifying patients. Nothing prohibits an employer from adopting reasonable regulations concerning the consumption, storage, or timekeeping requirements for employees who are registered qualifying patients related to the use of medical cannabis. G. Intersection with Federal Law Prohibiting use of Cannabis No federally recognized medicinal value of marijuana While the state of Illinois now recognizes a legitimate medicinal use for marijuana, the federal government has explicitly rejected such recognition. In fact, as recently as 2011 the Drug Enforcement Agency denied a petition to have marijuana reclassified under the Controlled Substances Act (CSA). As a result, marijuana continues to be classified under the CSA as a Schedule I controlled substance - meaning that it has a high potential for abuse, no currently accepted medical use in treatment in the U.S., and lacks accepted safety for use under medical supervision. Therefore, for purposes of federal law marijuana continues to remain illegal, despite Illinois s decriminalization of marijuana as an alternative treatment for serious diseases causing chronic pain. Note that recent legislative

6 Page 6 action by the United States Congress has suggested increasing support for the reclassification of marijuana. Preemption Generally, when there is an inherent conflict between a state and federal law, the federal law is given priority and preempts the contrary state law. In the case of states such as Illinois that have decriminalized the use of medicinal marijuana, this has not been the case. State medical marijuana laws have been generally viewed as emanating from the state s traditional state police powers to control what behavior constitutes criminal conduct and thus have been afforded a presumption against federal preemption. In addition, the federal government under established tenth amendment principles is generally prevented from forcing states to enact similar criminal prohibitions, repeal medical marijuana exemptions, or direct state police officers to enforce federal laws. Federal enforcement Because marijuana possession and use is illegal under federal law, Illinois residents who use marijuana are technically at risk for federal prosecution. However, the Department of Justice (DOJ) has advised federal prosecutors in states that have enacted laws similar to PA to consider whether it is an efficient use of their resources to pursue individual medicinal marijuana users. In 2009 and 2013 guidance memos to federal prosecutors, the DOJ stressed that while each U.S. Attorney s Office has broad authority to investigate and prosecute federal criminal matters in their jurisdictions, the focus and resources of each office should be on the DOJ s core enforcement priorities with respect to drugs described as the disruption of illegal drug manufacturing and trafficking networks and the prosecution of commercial enterprises that unlawfully market and sell marijuana for profit. The DOJ also emphasized that medical and recreational cannabis states that comply with the eight enumerated enforcement priorities are unlikely to incur federal intervention. Thus, it is possible but highly unlikely that federal authorities would pursue charges against an individual who uses medical marijuana in Illinois according to a recommended treatment plan. However, those that operate or facilitate medical marijuana dispensaries and cultivation centers, even if operated in compliance with Illinois law, continue to be targets for federal prosecution. H. Conclusion We hope this information is helpful as an overview of the new Act. The Act is lengthy, and requires fairly extensive rulemaking by multiple agencies to be fully implemented. IHA will provide further information as details develop. If you have questions about this summary, please contact Lia Daniels at ldaniels@team-iha.org or