By Becky Greenfield
In my last article, Medical Marijuana in the Hospital Setting: Are You Ready, I discussed topics that should be considered when drafting a medical marijuana compliance policy for the institutional setting. Subsequent to the publication of my last article, the legislature, with the approval of Governor Rick Scott, passed Florida Senate Bill 8A (the “Bill”). These changes, some of which I discuss below, should be addressed in the hospital’s medical marijuana compliance policy.
The following topics addressed in my prior article have been effected by the recent legislation:
1. Will the hospital permit the use of medical marijuana within the hospital and if so, what type of delivery mechanisms will be permitted?
Perhaps one of the most criticized provisions of the new medical marijuana legislation is its prohibition against smokeable marijuana.1 In fact, just days after the Bill was signed into law, litigation was brought against the State attacking the constitutionality of the anti-smoking provision.2 For the time being, and unless the plaintiffs’ constitutional arguments are successful in court, hospitals that permit inpatient medical marijuana use may only allow such use in vapor or edible form. This restriction should be incorporated into the hospital’s medical marijuana compliance policy.
2. 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?
Under the new law, transfer of medical marijuana may only be made to a qualified patient or his or her registered caregiver. A caregiver is defined as “a resident of this state who has agreed to assist with a qualified patient’s medical use of marijuana, has a caregiver identification card, and meets the requirements of subsection (6).”3 Amongst other requirements, a registered caregiver may only assist one designated qualified patient with the use of medical marijuana.4 As a result, the hospital should not likely allow its practitioners to assist qualified patients with medical marijuana use. Rather, the hospital should adopt a policy that requires self-administration. If the patient is physically unable to independently administer medical marijuana, they must have a registered caregiver, who can prove his or her status as a registered caregiver with a marijuana use registry identification card. A copy of this identification card should likely be placed in the patient’s medical records.
Notwithstanding the foregoing, the new legislation provides an exception to the above limitation for hospice programs. A registered caregiver may assist all qualified patients in a hospice program so long as such caregiver provides direct personal care or other services to the qualified patients within the scope of his or her employment. A caregiver may not, however, receive compensation other than actual expenses incurred, related to providing medical marijuana use assistance. Therefore, hospice institutions or facilities with a hospice program may adopt a policy that permits hospice practitioners to become registered caregivers to assist with medical marijuana administration for each qualified hospice patient under their direct care. However, such practitioner may not receive compensation above his or her salary for becoming a registered caregiver for any qualified patient.
3. Will the hospital permit its physicians to certify medical marijuana or refill a medical marijuana order for the patient while he or she is under the hospital physician’s care?
Prior to the new law, a certifying physician could not order medical marijuana for a patient until a 90-day waiting period was complete. This barrier to care was addressed by the new legislation, which eliminates the waiting period all together. Additionally, the new law permits the certifying physician to prescribe a 70-day supply and requires the patient be recertified every 30 weeks. This is a significant change from the prior law, which permitted only a 45-day supply and required recertification once every 90 days. Hospitals that permit its physicians to certify medical marijuana, should include these guidelines in its compliance policy.
Moreover, if the hospital allows its employees to become certifying physicians, the policy should specify that the physician may only certify the use of medical marijuana after conducting an in-person examination of the patient: telemedicine is not an appropriate alternative to a face-to-face consultation. Additionally, prior to ordering medical marijuana for a patient, the certifying physician must ensure the patient is not listed in Florida’s prescription drug monitoring program database.5
The Florida Department of Health has yet to promulgate regulations for Florida’s new medical marijuana program. These regulations will hopefully provide additional guidance to hospital decision-makers as they start to develop medical marijuana compliance policies. However, hospitals should not wait until the regulations are promulgated. Instead, they should start to establish a diversified workgroup to discuss current and prospective issues that relate to the increased use of medical marijuana in the hospital setting and develop policies that are operational and acceptable to the hospital’s patients and its stakeholders.
For questions or more information, contact Becky Greenfield at firstname.lastname@example.org, attorney at Wolfe Pincavage, LLP.
1 Fla. Stat. § 381.986(1)(j)(2).
2 The litigation alleged that “inhalation is a medically effective and efficient way to deliver Tetrahydrocannabinol [“THC”] and other cannabinoids to the bloodstream” and that “[b]y redefining the constitutionally defined term ‘medical use’ to exclude smoking, the Legislature substitutes it medical judgment for that of a ‘licensed Florida physician’ and is in direct conflict with the specifically articulated Constitutional process.” People United for Medical Marijuana, Inc. v. State of Florida, et. al., 2017 CA 001394 (July 6, 2017).
3 Fla. Stat. § 381.986(1)(a).
4 Id. at (6).
5 The monitoring program database was established pursuant to Fla. Stat. § 893.055.