Cannabis use in the home
Shifting state & federal laws can make meeting patient wishes a chore
by Richard Cheng & Barrett T. Robin

A green wave has washed over much of the United States, with the majority of state legislatures passing laws that permit the use of some form of cannabis for medical purposes. 

Marijuana is the most widely used prohibited substance in the United States—according to a Gallup poll, at least a third of the American population has experimented with it at some point. After decades of stigma and scrutiny, public opinion about cannabis usage has shifted drastically during the past decade, so much so that a significant majority of Americans now support the legalization of marijuana, according to a Pew survey published in November 2019.

Given the shifting public perception and legislation on cannabis usage, health care providers are increasingly likely to interact with patients already using some form of cannabis or interested in trying it. At some point, nurses, therapists and other workers in home health care will likely encounter a patient seeking assistance administering cannabis products. Without due care and consideration, providers may find themselves in sticky situations when faced with such patients.

Legal Uncertainty

Marijuana is still illegal at the federal level—it remains a Schedule I controlled substance under the Controlled Substances Act (CSA). But enforcement has been inconsistent due to evolving state laws, public policies, opinions issued by the United States Attorney General’s office and other federal mandates, such as the Rohrabacher-Farr Amendment, which yields some protections for medical cannabis.

An Obama-era directive from the Department of Justice (DOJ) called the Cole Memorandum mandated federal law enforcement officials should defer to state authorities, in essence taking a hands-off approach to marijuana-related enforcement. But Trump-appointed former Attorney General Jeff Sessions revoked the Cole Memorandum, directing “all U.S. Attorneys to use previously established prosecutorial principles.” In fact, Sessions called the prior guidance “unnecessary” and indicated in a 2018 memorandum that federal prosecutors will “weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community.”

Cannabis legislation varies widely from state to state. A full discussion of the distinctions is beyond the scope of this article, but one example demonstrates the stark contrast. Colorado fully legalized marijuana for medical and recreational use, but in neighboring Wyoming, cannabis remains illegal. (Wyoming does permit hemp-derived CBD products.) Conflicts between state and federal law have not been settled through the judicial system. Multiple cases were litigated to do so, but the results differed by jurisdiction.

Various resources exist to track and catalogue state laws on medical marijuana. For example, the Federation of State Medical Boards recently published a state law survey, as well as a state-by-state survey of medical marijuana-related continuing medical education requirements. Providers can also consult with legal counsel for advice on compliance with state and federal laws pertaining to medical cannabis.

Risks Providers Might Face

Home health providers face a wide variety of risks when dealing with patients who are already using cannabis or who want to begin using it, but they generally fall into one of three categories.

1. Ethical & Regulatory Risks

Ethical risk likely materializes with licensed providers who are bound by a code of ethics. For example, Guiding Principle III of the American Medical Association’s Code of Ethics mandates that “a physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of patients.” Similarly, the American Nursing Association’s Code of Ethics requires nurses to “take appropriate action in all instances of incompetent, unethical, illegal, or impaired practice or actions that place the rights or best interest of the patient in jeopardy.”

Both codes embrace and encourage the reporting of unethical conduct. More importantly, health care professionals must read between the lines when dealing with terms like “appropriate action,” “a responsibility” and “best interests of patients.” These terms are broad in nature and assume different obligations, depending on your state and profession. Seek direct guidance from the applicable licensing board on a case-by-case basis and convey the concerns about patient requests and how cannabis is being used. It is also critical to create a paper trail of any guidance provided by the licensing board, any notices provided to the licensing board and supporting documentation. By “papering up,” the provider has evidence to show they are exercising sound judgment and discretion.

A strict interpretation of these codes of ethics would suggest that any provision of health care services involving cannabis is contrary to the ethical values that govern the professions because it remains illegal under federal law. But because of varying state laws, there are health care professionals across the country prescribing, recommending, administering or otherwise facilitating medical cannabis usage. While it is critical to understand the federal illegality of medical cannabis and how facilitating usage could impact certifications (e.g., Medicare certification, Drug Enforcement Agency registration, etc.), much of the analysis is done on a case-by-case basis and depends on state and local laws. 

Codes of ethics also embody the idea that providers should do no harm and should provide quality care. The U.S. Food and Drug Administration (FDA) has not approved the marketing of cannabis for the treatment of any disease or condition. It has, however, approved one CBD-containing prescription drug for treating rare, severe forms of epilepsy. The FDA reprimanded 15 companies in late 2019 for selling products containing CBD in ways that violate federal law. Nevertheless, there have been peer-reviewed studies touting the benefits of various forms of cannabis as a treatment for several conditions including cancer, AIDS, bipolar disorder and rheumatoid arthritis.

Providers would be well-served to consult their applicable licensing board and other state organizations for guidance regarding cannabis treatments and their legal duties. Given the potential ethical violations that could occur from recommending, administering or facilitating cannabis use, deviating from locally acceptable practices may increase the risk of reprimand, suspension or even revocation of their license to practice.

2. Financial Risks

To ensure continuity of quality care, providers must be compensated for their services—and they should carefully consider any course of conduct or treatment that may put their compensation at risk. Accordingly, a careful review of providers’ contracts with hospitals, insurance companies and Medicare is essential. Currently, Medicare does not reimburse for medical treatment with marijuana because of its status under the CSA. However, products such as Marinol and Syndros, which contain a synthetic form of cannabis, are covered items under some Medicare Part C and Part D plans.

Certain carve-outs or exclusions may exist in contracts that preclude the possibility of reimbursement for services involving cannabis in its various forms. Such provisions might be triggered upon the recommendation of cannabis usage or upon actual assistance to a patient in administering treatment involving cannabis. Providers should carefully review their contracts and, if uncertain, should not hesitate to consult with legal counsel to fully understand such contracts and the potential implications from providing services that involve cannabis in its various forms.

3. Criminal Risks

Given marijuana’s illegality at the federal level and the variance of state legislative and regulatory frameworks, the provision of treatment involving cannabis could expose providers to criminal liability. For example, a physician who prescribes cannabis to a patient or a nurse who assists a patient in consuming cannabis—even if in compliance with applicable state law—could be prosecuted at the federal level for aiding and abetting a violation of the CSA. Therefore, an examination of current federal enforcement priority, capacity and even budget appropriation for such prosecutions is warranted.

In an important 2016 appellate decision, the U.S. Court of Appeals for the 9th Circuit ruled that the DOJ could not use its funding to prosecute physicians and patients if their actions comply with state medical cannabis statutes. That ruling relied on a 2014 federal appropriations law that prevented the DOJ from interfering with state implementation of marijuana laws. The amendment passed again in the latest appropriations bill and is effective through Sept. 20, 2020. However, it remains unclear how current DOJ policy squares with its effect—all the more reason for providers to exercise caution when dealing with cannabis.

Seek Counsel

Given the state-by-state variance in cannabis legislation, and the seemingly inconsistent approach to enforcement of federal law that still prohibits cannabis, home health providers should take steps to educate themselves, including referring to relevant professional associations in their jurisdiction and consulting with experienced legal counsel. Cannabis will likely continue to play an increasing role in health care, and providers will benefit from continued education on this important topic.

Richard Cheng is a health care regulatory and corporate partner with the global law firm DLA Piper, with a focus on representing investors and health care providers in regulatory matters, health care transactions and administrative law issues.

Barrett T. Robin is a litigation associate with DLA Piper who represents companies and individuals in business disputes and disputes with government agencies.