Is senior care going to pot?

[Editor’s note: This is part two of a two-part series. For part one, see Medical marijuana: Hashing out the legal issues.]

Since July 2016, a number of significant developments have altered the legal landscape regarding medical marijuana. One of those developments was the decision by the U.S. Drug Enforcement Administration (DEA) to not reclassify marijuana from its status as a Schedule I controlled substance, which the DEA has deemed as having “no accepted medical use.” Another development was a landmark decision from a federal appeals court. Both issues are discussed below in addition to some pending legislation regarding medical marijuana.

In November 2011, the governors of Rhode Island and Washington petitioned the DEA to have marijuana removed from Schedule I of the Controlled Substances Act (CSA) and rescheduled as Schedule II. On August 11, 2016, Acting DEA Administrator Chuck Rosenberg denied the petition to reclassify marijuana. However, the DEA stated, “We fully support legitimate medical and scientific research on marijuana and its constituent parts and we will continue to seek ways to make the process for those researchers more efficient and effective.”[i]

Those who support the use of medical marijuana were outraged by DEA’s decision. According to the Cannabis Business Alliance Executive Director Mark Slaugh, “Cannabis has been objectively and scientifically determined to be safer than many medications, such as the opioids, which have caused an epidemic. States with legal marijuana understand the safe nature of this plant and its therapeutic benefit to many patients.” Slaugh adds, “We hope that the increased amount of cannabis research on a federal level will lead to the DEA acknowledging what we already know: that cannabis is a relatively harmless crop and should be recognized as such by full de-schedule and through sensible regulation.”

Samer Abilmona, the Director of Operations for Ambary Gardens, a licensed grower and distributor of high quality CBD industrial hemp products, noted, “The DEA's decision not to reschedule cannabis is unfortunate but not surprising. Hopefully the tide of change and the spread of knowledge will force their hand." If the anticipated increase in research yields positive results, it will be difficult for the DEA to continue to classify marijuana as a Schedule I controlled substance.

Ninth Circuit rebukes the DOJ

On August 16, 2016, within days of the DEA’s decision, the United States Court of Appeals for the Ninth Circuit breathed new life into the medical marijuana movement and dealt a blow to the Department of Justice (DOJ). The case of United States v. McIntosh (McIntosh) highlighted the tension between federal and state laws involving medical marijuana.[ii] The Court held that a Congressional rider to the appropriations bill precluded the DOJ from using federally-approved funds to prosecute individuals who “strictly comply” with their state laws concerning medical marijuana.

The case involved the clash between the CSA, which prohibits the possession, use, cultivation or distribution of marijuana, and the laws in 25 states and the District of Columbia that permit medical marijuana. The case also involved the application of another federal law—the 2014 Rohrabacher-Farr amendment, which states, “None of the funds made available under this Act to the Department of Justice may be used with respect to [the states and the District of Columbia which enacted medical marijuana laws], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” [H.R.83 – Consolidated and Further Continuing Appropriations Act, 2015, 113th Congress (2013-2014), available at: https://www.congress.gov/bill/113th-congress/house-bill/83/text.]

In McIntosh, the Court consolidated ten separate appeals stemming from California and Washington district courts. The defendants in all ten cases were being prosecuted by the U.S. Attorneys’ Office for violating the CSA, notwithstanding that California and Washington are among the 25 states that have legalized medical marijuana.

The defendants argued that the Rohrabacher-Farr Congressional rider precluded the DOJ from using funds to prosecute individuals who comply with their respective state laws. By contrast, the DOJ argued that the CSA allowed it to prosecute individuals who possess, use, grow or distribute medical marijuana. The Court rejected the DOJ’s argument and the unanimous three-member panel of judges noted that “[a] court cannot ignore the judgment of Congress, deliberately expressed in legislation.”[iii]

The Court concluded, that “at a minimum, § 542 [of the appropriations bill] prohibits the DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” Unless a future Congress appropriates funds for the DOJ to prosecute medical marijuana cases, individuals using medical marijuana in full compliance with state law will not be prosecuted by the DOJ—at  least in the Ninth Circuit.

Workplace issues

Healthcare workers in the long-term care sector routinely care for the frailest members of society who often have complex medical conditions and multiple conditions of comorbidity. Employers have a right and an obligation to ensure their employees are capable of providing safe, quality care. So, if a nurse uses medical marijuana at home for a legitimate medical purpose and it does not interfere with his/her job, should that matter to the employer? It might.

A number of cases in various states have held that employers may terminate an employee who uses medical marijuana—even if prescribed by a physician and used only at home. The basis for a termination is that an employee who uses medical marijuana is violating federal law. As a California Supreme Court judge stated in one recent case, employees in California with a serious illness have just two options: continue receiving the benefits of medical marijuana and become unemployed or continue their employment “and try to endure their chronic pain [which is a] cruel choice.”[iv]

Current federal legislative efforts

In addition to the evolving case law (law decided by the courts), a number of bipartisan legislative initiatives are currently being considered by Congress.

The CARERS Act

In introducing the Compassionate Access, Research Expansion, and Respect States (CARERS) Act (S.683, H.R. 1583), Sen. Cory Booker (D-NJ) stated, “This commonsense legislation would make our Federal marijuana criminal laws fairer and more in line with our values and ensure that medical marijuana is more accessible to the millions of Americans who need it for treatment purposes.” Sen. Booker added, “Currently, 23 States [now 25] and the District of Columbia have passed laws legalizing medical marijuana for qualified patients. But the Federal Government still bans medical marijuana and treats the people who use it with contempt. It is time we end this backward approach toward a substance that helps treat millions of Americans, including veterans, who suffer from debilitating diseases.”[v]

Cannabidiol Research Expansion Act

Senators Dianne Feinstein (D-Calif.) and Chuck Grassley (R-Iowa), co-chairs of the Senate Caucus on International Narcotics Control, introduced the Cannabidiol Research Expansion Act. That proposed legislation would reduce the regulatory barriers associated with conducting research on the potential benefits of substances that are derived from marijuana, such as cannabidiol.

“I strongly believe that more research into the potential medical benefits of marijuana, specifically cannabidiol, a non-psychoactive component of marijuana, is needed,” Sen. Feinstein said. “This narrowly focused bill takes a responsible approach by cutting the red tape associated with marijuana research. It paves the way for new research to be conducted to determine if cannabidiol can be an effective medication for serious illnesses, such as intractable epilepsy.”[vi]

Sen. Grassley added, “The parents of children with severe epilepsy and other conditions are interested in cannabidiol to try to ease their children’s symptoms. I understand their interest. Research is necessary to determine the potential medical value of cannabidiol, and wherever possible, the government should help facilitate the scientific research needed to give these parents the answers they need.”

The bill’s provisions include requiring the Departments of Justice and Health and Human Services to complete an analysis to determine the medical value of CBD within one year and allowing research on CBD to be conducted using Schedule II registration, rather than Schedule I. The bill also allows medical schools, research organizations and pharmaceutical companies to conduct FDA-authorized research in states that have legalized medical marijuana.

At least nine states have medical marijuana bills on their November 2016 ballots. Undoubtedly, the issue of medical marijuana will continue to be a growing concern in the health care community. Because of the schizophrenic approach at the federal level—the CSA makes the cultivation, possession or use of marijuana a felony while the federal appropriations act prohibits the DOJ from prosecuting individuals who comply with state marijuana laws—healthcare providers and residents face a potential dilemma.

Evidence of the increasing acceptance and application of medical marijuana is seen in the fact that the Federation of State Boards of Medicine has published “Model Guidelines for the Recommendation of Medical Marijuana in Patient Care.”[vii] Given the growing support for the legalization of medical marijuana, the author believes there will likely be a change in the federal law. Until such change occurs, individuals and facilities should be aware of all relevant laws.

Disclaimer: As noted above, federal law is, at best, inconsistent in the area of medical marijuana. Because marijuana remains classified as a Schedule I controlled substance by the United States Drug Enforcement Agency, it is a crime under federal law to cultivate, distribute, sell or use marijuana. Any content contained herein is not intended to provide legal advice in connection with the violation of any state or federal law. It is incumbent on those seeking and those providing legal advice to be aware of their respective state’s requirements.

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at Arnall Golden Gregory LLP, where he focuses his legal practice on regulatory compliance for skilled nursing homes, hospices and home health agencies and manages cases where the Centers for Medicare and Medicaid Services (CMS) has imposed an enforcement action. He is a former assistant regional counsel Office of the General Counsel, U.S. Department of Health and Human Services. As counsel to CMS, he was involved with hundreds of enforcement actions and successfully handled appeals before administrative law judges, the HHS Departmental Appeal Board and in federal court. He also has clinical healthcare experience as a registered respiratory therapist and registered nurse. He can be reached at alan.horowitz@agg.com.