July 2017 - Volume 14 - Issue 1 | Sunday July 23, 2017
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Medical Marijuana in the Hospital Setting: Are You Ready?

With the passing of Florida’s Amendment 2 (the approval of medical marijuana) by 71% of Florida voters, we can expect a substantial increase in the number of patients certified to use medical marijuana in hospitals.1 As a result, it is imperative that hospitals take a proactive step to develop organization-wide written policies and procedures regarding the use, storage, and delivery of medical marijuana within the hospital setting. The intention of this article is not to persuade hospital decision-makers to adopt any specific course of action or organizational policy. Rather, its goal is to bring to the forefront operational topics hospitals should consider to successfully navigate Florida’s new medical marijuana frontier.

Under Amendment 2, a Florida resident may be certified for the use of medical marijuana if he or she is diagnosed with a debilitating medical condition, receives a written certification from a licensed Florida physician, and obtains an ID card from the Florida Department of Health.2 A debilitating medical condition is defined as “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as a or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.3 ” A physician may issue a certification only after the physician conducts a full examination of the patient and a full assessment of the patient’s medical history.4
 
Florida is currently developing its new state medical marijuana program which expressly protects certifying physicians from criminal and civil liability and sanctions, so long as the physician certifies the use of medical marijuana within a reasonable standard of care.5 However, it is important to keep in mind that marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act. Although there are significant clinical indications6 that medical marijuana can successfully manage and treat numerous medical conditions, the federal government still defines marijuana as a drug that has no accepted medical use for treating disease.7 Notwithstanding medical marijuana’s illegal status under federal law, the federal government has indicated that prosecution for medical marijuana use is not a federal priority and that it will not use its resources to interfere with state medical marijuana programs.8
 
Although there is evidence that the federal government would not prosecute a hospital for permitting the use of medical marijuana9 on site, a dichotomy between federal and state law will exist as long as medical marijuana is labelled an illicit drug under federal law. This causes serious challenges for a hospital, which must strike a delicate balance between limiting federal liability for itself and its practitioners and minimizing disruption to a patient’s successful course of treatment.
 
Establishing policies and procedures that address the hospital’s position on the use, storage, and delivery of medical marijuana ensures practitioners and staff act in accordance with the hospital’s predetermined acceptable levels of risk and refrain from taking actions that could increase federal liability for the hospital. The adoption and communication of uniform policies and procedures also (i) minimizes confusion amongst the hospital’s practitioners and staff by giving direction as to what to do when confronted with a patient certified to use medical marijuana; (ii) streamlines care to patients certified to use medical marijuana; and (iii) ensures patients and their caregivers have realistic expectations for use of medical marijuana while using the hospital’s services.
 
Establishing a Workgroup
Participation from multiple facets of the organization is key to creating workable medical marijuana policies and procedures. The hospital should consider establishing a multidisciplinary workgroup comprised not only of the board of directors and senior management decision-makers but also representatives from the emergency department, specialty departments, research departments, and other medical units. Physicians and nurses across medical specialties, addiction specialists, pharmacists, and mental health professionals should also be included in the conversation. Additionally, the hospital should also consider inviting outside parties, including legal counsel, consultants, and representatives from local and state professional boards to the workgroup.
 
Strong differing opinions from workgroup members should be expected. Compromise, voting, and outside assistance may be necessary to construct policies and procedures that the hospital’s board of directors and its practitioners and staff are amenable to and are willing to comply with. As difficult as it may be, it is imperative that at the end of the day, the hospital adopts a uniform position about medical marijuana. This uniformity will ensure practitioners and staff throughout the hospital are capable of successfully handling encounters with patients, patient advocates, and the community at large with regard to medical marijuana.
 
Topics for Consideration
The workgroup should consider, at a minimum, the following:
 
• Will the hospital permit the use of medical marijuana within the hospital, and if so, what type of delivery mechanisms will be permitted? For example, will medical marijuana use be permissible in vapor form? What about pill or edible form?
 
• Who may use medical marijuana in the hospital? Will only certified inpatients be permitted to use medical marijuana or will outpatients be permitted to use medical marijuana as well? Will the hospital adopt special policies for inpatient mental health and substance abuse patients?
 
• Where in the hospital will medical marijuana use be permitted? Will patients have access to medical marijuana in the emergency department or intensive care unit or only in patients’ private or semi-private rooms? Alternatively, will the hospital have designated rooms for medical marijuana intake (this may be relevant if the hospital permits vapor use)?
 
• Will hospital staff and practitioners ask the patient whether he or she is taking medical marijuana during intake and request a copy of the patient’s medical marijuana ID card or will the hospital adopt a don’t ask don’t tell policy?
 
• Will the hospital permit practitioners to register as caregivers to assist patients with the administration of medical marijuana or will only self-administration of medical marijuana be permitted?
 
• Where will the medical marijuana be stored during the inpatient’s stay? Will it be required to remain with the patient at all times or will it be stored on the floor with other scheduled drugs or in the hospital’s pharmacy? Will special labelling and/or packaging of the medical marijuana be required?
 
• Will the hospital permit its physicians to certify medical marijuana or re-fill a medical marijuana order for the patient while he or she is under the hospital physician’s care?
 
• What is the hospital’s policy on destruction of medical marijuana in the event a patient leaves the medical marijuana behind or the patient becomes incapacitated or dies?
 
• Will the hospital permit practitioners to “opt out” and request that the patient be transferred to another practitioner if the patient demands to use medical marijuana and the practitioner does not believe in the use of medical marijuana? If so, what will be the procedure for transferring the patient and what should be documented?
 
Other Considerations
In addition to the above substantive medical marijuana use, storage, and delivery issues, the workgroup should create policies and procedures that describe how the hospital will ensure its staff and practitioners comply with the policies and procedures. The hospital should also consider implementing training requirements for its workforce with regard to these issues and support feedback from hospital stakeholders. Like other compliance policies, the hospital should regularly assess the policies and procedures to ensure it remains compliant with state law and closely work with legal counsel to minimize liability at the federal level.
 
Don’t wait for a problem to arise: be proactive and keep your workforce, decision-makers, and patients informed about the hospital’s position on medical marijuana from the get-go.10

For questions or more information, contact Lee Lasris at lee.lasris@gmlaw.com, Jodi Laurence at Jodi.laurence@gmlaw.com, or Rebecca Greenfield at Rebecca.greenfield@gmlaw.com, health care attorneys at GreenspoonMarder P.A.

 
1 Note that although this article focuses on hospitals, the guidance is applicable to rehabilitation centers, skilled nursing facilities, and hospice centers as well.
2 Fla. Const. art. X, § 29
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6 Ellis, RJ, et.al.; Smoked Medicinal Cannabis for Neuropathic Pain in HIV: a randomized, crossover clinical trial; Neuropsychopharmacology. 2009 Feb;34(3):672-80. doi: 10.1038/npp.2008.120. Epub 2008 Aug 6; Corey-Bloom J, et. al., Smoked Cannabis for Spasticity in Multiple Sclerosis: a Randomized, Placebo-controlled Trial; CMAJ. 2012 Jul 10;184(10):1143-50. doi: 10.1503/cmaj.110837. Epub 2012 May 14; Devinsky, O., et.al., Cannabidiol in Patients with Treatment-resistant epilepsy: an Open-Label Interventional Trial; The Lancet Neurology , Volume 15 , Issue 3 , 270 – 278 2016 March 2016.
7 21 U.S.C. 812(c).
8 CONSOLIDATED APPROPRIATIONS ACT, 2016, PL 114-113, December 18, 2015 (preventing the Department of Justice, including the DEA, from using funding to interfere with state medical marijuana programs); Guidance Regarding Marijuana Related Financial Crimes, James M. Cole, U.S. Department of Justice Office of the Deputy Attorney General (February 14, 2014). See also VHA Directive 2011-004, Department of Veterans Affairs (January 31, 2011) (the U.S. Department of Veterans Affairs prohibits the denial of VA benefits enrolled in state medical marijuana programs).
9 See Press Briefing by Press Secretary Sean Spicer, 2/23/2017, #15 (although the new administration appears to be less supportive than the Obama administration with regard to recreational marijuana, the current administration has made public comments indicating their support for state medical marijuana programs).
10 Legislation implementing Amendment 2 has not yet been passed by Florida’s legislature; however, the house and senate are negotiating the language of the legislation and have until May 5, 2017 to pass such legislation. Florida’s medical marijuana laws are subject to change; therefore, hospitals and health practitioners must be in constant contact with their health care attorneys to ensure they are compliant with state law. 
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