More and more states legalize medical and recreational marijuana while federal law still continues to classify it as a Schedule I drug with a high potential for abuse and no currently accepted medical use. Therefore, no prescription may be written for a Schedule I drug under the federal law, and such substances are subject to production quotas by the DEA. Physicians in states that had legalized medical cannabis, may only recommend marijuana, with no recommendation as to the dosage, refills, or length of use.
Many recommending physicians are concerned about any potential DEA’s audits or investigations into their practice. And yes, the DEA may threaten a physician’s DEA registration as aiding and abetting in obtaining illegal drug under the federal law. On a number of occasions, however, the U.S. Department of Justice highlighted that the priority is not on individuals in strict compliance with state laws but on individuals presenting threat to public safety, such as those supplying cannabis to minors, drugged driving, etc.
Nevertheless, recently the DEA has cancelled registrations of two Colorado doctors specializing in recommending medical marijuana to their patients. In these cases, however, the doctors lost their licenses to practice medicine due to a large number of medical marijuana recommendations authorizing high plant counts. Doctors were each accused of recommending hundreds of patients to grow or possess more than the standard six plants per patient as allowed under the state law. The DEA has published a notice in the Federal Register explaining that the revocation was a consequence of the state license suspension.
In addition, the federal case law established that the DEA’s policy threatening to punish physicians for communicating with their patients about the medical use of marijuana is invalid. For example, in Conant v. Walters, the 9th Cir. Court held that the DEA may not revoke physicians’ registrations merely for recommending medical marijuana as provided under the state law. The case also upheld the injunction prohibiting the DEA from conducting an investigation of a physician based solely on the physician’s recommendation of medical marijuana.
While the majority of states with medical marijuana laws prohibit disciplining a physician for recommending cannabis for treatment of a serious medical condition, the Medical Board can and does take disciplinary action against physicians who fail to comply with accepted medical standards when recommending cannabis. The Boards in these states outline the standard of care applicable to such recommendations. For example, California Medical Board stated in a precedential decision that “the mere receipt of a complaint that the physician is recommending marijuana for medical purposes will not generate an investigation absent additional information indicating that the physician is not adhering to accepted medical standards.” These accepted standards are the same as any reasonable and prudent physician would follow when recommending or approving any other medication, and include the following:
History and an appropriate prior examination of the patient.
Development of a treatment plan with objectives.
Provision of appropriate consent including discussion of side effects.
Periodic review of the treatment’s efficacy.
Consultation, as necessary.
Proper record keeping and maintenance thereof that supports the decision to recommend the use of marijuana for medical purposes.
In other words, if physicians use the same care in recommending marijuana to patients as they would in recommending any other dangerous drug, they would not be subject to discipline with the Medical Boards (according to the California Board’s position taken in the above cited precedential decision). The problem, however, is that most of cannabis recommendations take place under the following circumstances:
(1) no prior relationship exists between the patient and physician;
(2) the recommender is not a specialist in treating the underlying condition; and
(3) no follow-up appointments are scheduled.
This makes physicians prone to licensing issue, violation of ethical duties; and negligence-style type of cases.
American Medical Association also developed guidelines for physicians to follow when recommending medical cannabis (which mirror California requirements). In addition, many healthcare players are creating their own policies and procedures on cannabis. For example, many hospitals strictly prohibit the possession and use on their premises, while others started working with the patients on cannabis use and the admitted physician is to make a choice whether continued use of cannabis during the admission will benefit the patient. Some hospitals have shifting rules: allowing cannabis for certain patients only (cancer, pediatrics). As more states legalize medical and recreational cannabis, we will see more pressure on the federal government to revise its existing law on marijuana and possibly more leeway to the states in administering their own cannabis programs.
The above is an except from my presentation given at the California Society for Healthcare Attorneys’ conference in Huntington Beach. The handout for the presentation can be accessed here.
 2009 Ogden Memorandum, available at https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states and 2013 Cole Memorandum: https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (accessed on April 29, 2017).
 Gentry Reeves Dunlop, M.D.; Decision and Order, 82 Fed. Reg. 8432-8433 (Jan. 25, 2017) and Janet Carol Dean, M.D. Decision and Order, 82 Fed. Reg. 9224-9226 (02/03/2017).
 Janet Carol Dean, M.D. Decision and Order, 82 Fed. Reg. 9224-9226 (02/03/2017).
 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)
 Precedential Decision No. MBC-2007-02-Q (against Tod H. Mikuriya, M.D.), California Medical Board.
 Id. at 36.