Healthcare providers in California are faced with a dilemma: should their practices start doing anything differently since the legalization of marijuana? Many wonder whether they should change their employment policies, admittance procedures, or start recommending and experimenting with marijuana. Cannabis, however, continues to be in “legal-but-not-entirely-legal-status.” Federal law continues to classify marijuana as a Schedule I drug with a high potential for abuse and no currently accepted medical use. Therefore, no prescription may be written for marijuana under the federal law – physicians may only recommend marijuana, with no recommendation as to the dosage, refills, or length of use.
Federal perspective: “Good people do not smoke marijuana.”
Many physicians are eager to start recommending marijuana to some of their patients – especially to seriously ill patients who want to avoid heavy medications – but concerned of possible legal consequences, especially with the DEA. The concern is not baseless, the DEA may threaten a physician’s DEA registration in recommending context as aiding and abetting in obtaining an illegal drug under the federal law. The 9th Circuit has tackled the issue in Conant v. Walters and 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. Therefore, a physician may lose the DEA’s registration for prescribing marijuana but the DEA may not revoke the registration if a physician merely recommends it to his patients in California.
Nevertheless, recently the DEA has canceled registrations of two Colorado doctors specializing in recommending medical marijuana to their patients. In these cases, however, the issue stemmed from the Medical Board’s actions against the doctors, who lost their licenses due to a high number of 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.
The U.S. Department of Justice also has highlighted in its two memorandums that the priority is not on individuals in strict compliance with the state laws but on individuals presenting a threat to public safety, such as those supplying cannabis to minors, drugged driving, etc. The federal government does not intend to waste its limited resources on individuals whose actions are in clear and unambiguous compliance with marijuana state laws providing for the medical use of marijuana. The policy is likely to continue with the new U.S. Attorney General, Jeff Sessions. Despite Sessions’ statements that his department will prioritize the enforcement of the Controlled Substances Act – the effect is not likely to be felt by healthcare providers but the accent will fall on interstate cannabis transporters.
In addition, since 2015 Congress has been enacting a medical cannabis rider (Sec. 538) prohibiting the use of federal funds in prosecuting individuals in compliance with the state marijuana laws. The current rider has been extended to September 30, 2017. The case brought under Sec. 538 in a California District Court held that as long as Sec. 538 is in place, the DOJ can only enforce federal controlled substances laws against individuals and business if they are not in compliance with California law.
However, the effect on healthcare providers of marijuana being classified as a Schedule 1 is still profound – from inability to properly research medical effects of marijuana to fearing the potential problems with the payors, accreditation agencies, and the CMS.
California perspective: “not going to stand aside.”
As to physicians recommending marijuana, California law prohibits disciplining them for recommending cannabis for treatment of a serious medical condition. The Medical Board, however does take disciplinary action against recommending physicians if they fail to comply with accepted medical standards when recommending marijuana. The Medical Board in a precedential decision stated 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:
1. Reviewing medical history and conducting an appropriate prior examination of the patient;
2. Developing of a treatment plan with objectives;
3. Obtain informed consent to the treatment and discus the side effects;
4. Periodically review the treatment’s efficacy.
5. Comply with proper record keeping and maintain medical records supporting 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 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. To avoid these potential legal implications, a recommending physician must strictly follow the Board’s guidance and comply with all regulations applicable in prescribing context.
Hospitals’ Direction: in or out?
As hospitals are seeing more patients legally using and possessing the drug, they develop new policies and practices to address some of the legal issues raised by possession or use on their premises. The policies that should address lawful possession of marijuana should include:
- Self-administration of medications by patients
- Handling personal property
- Alternative supplements
- Patient care order
- Hospital security practices
- Inpatient patient medication
Currently hospitals follow three paths when dealing with marijuana on their premises.
(1) Medical use of marijuana is allowed in the facilities (minority approach):
When patients registered with the state’s marijuana program arrive with marijuana in its original container as dispensed by an approved dispensary, the admitting physician has a discretion to allow the patient to continue using the drug while at the facility. Of course, only capsules or oral liquid should be allowed and self-administer should not be permitted.
This is an approach taken by some facilities in the states with high standards for ensuring quality control of marijuana, and where manufacturers are required to demonstrate consistency of product content, purity, stability, and accuracy of labeling (for example, Minnesota). California is not one of the states with strong standards and regulations of the industry (which is likely to change with the adoption of the regulations of the marijuana industry in 2018).
Hospitals that decided to take this route, have physicians, nurses, pharmacists, representatives from external agencies (e.g., drug diversion, members of various professional boards), and of course, their legal counsel crafting such policies. Many also involve their local medical cannabis manufacturers asking them to bring packaging, the product, and the label so the medical team can become more familiar with what the patients and their families will be bringing in.
(2) Prohibit any use of marijuana in the facilities (the majority’s position):
Almost all California hospitals currently prohibit use or possession of marijuana while at the hospital or any other inpatient facility. Clinical concern is the primary reason for taking this approach: drug interactions, lack of research on cannabis, etc. But what the facilities to do with marijuana if a patient is admitted with the drug? Pharmacies could not store, destruct, or manage it. Many facilities ask the patient to give the drug to a family member or lock it in the cars. In addition, many utilize their Security Department, which can store patient’s marijuana with other personal belongings of the patient and return them on the discharge.
(3) Shifting rules.
Some facilities allow the use of marijuana for certain patients, such as oncology and pediatrics patients. The workgroups implementing this practices concluded that there is a substantial research showing marijuana’s ability to help relieve some of the symptoms of serious conditions, which cannot be improved with other drugs or FDA approved THC (marijuana active ingredient) compounds.
A Note on Employment
A majority of healthcare employees are at-will meaning that the employer may terminate them at any time for any reason. Therefore, parties may agree on any terms they want, including a drug-free policy. Because of the highly regulated nature of the profession, a vast majority of healthcare businesses require their employees to be drug-free, which is often enforced through mandatory drug testing. While some states have enacted the protection for marijuana users in the employment environment, California law does not protect marijuana users from workplace termination. The California Supreme Court has ruled that employers have a right to drug test and terminate employees based on positive testing. The Ninth Circuit also held that the ADA does not offer job protection for medical marijuana users because it is an illegal substance under federal law.
Prop. 64 (the Adult Use of Marijuana Act) itself provides that employers may test employees for marijuana use prior to hiring or at any time during the employment and terminate the employment in case of the positive outcome.
Therefore, because marijuana continues being an illegal substance under the federal law, the employers may continue terminating employees based on the usage and do not have to accommodate such employees in the workplace.
Because marijuana continues to be an illegal substance under the federal law – and the federal policy is not likely to change in the near future – healthcare providers must strictly follow the state law when recommending marijuana to their patients. Due to some increased interest from the Medical Board to the recommending physicians, the safest route is still to prescribe the FDA-approved THC compounds. The changes might be coming in how hospitals are handling the marijuana of their patients, which now constitutes the legal property of the patient and should not be destroyed or turned to the law enforcement. Possibly we might even see medical marijuana administration in California hospitals – which is not likely to happen very soon.
 Erwin Chemerinsky, Jolene Forman, Allen Hopper & Sam Kamin, Cooperative Federalism and Marijuana Regulation, 62 UCLA L. Rev. 74, 113 (2015).
 Statement made by the U.S. AG Jeff Sessions during a senate hearing, video is available at: https://www.washingtonpost.com/news/wonk/wp/2016/11/18/trumps-pick-for-attorney-general-good-people-dont-smoke-marijuana/?utm_term=.b808fa20dc2c (last visited May 4, 2017)
 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002).
 See Chemerinsky at 85 (supra note 1), citing Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 884 (1992) (recognizing a physician’s First Amendment right not to speak); Rust v. Sullivan, 500 U.S. 173, 200 (1991) (noting that regulations on physician speech may “impinge upon the doctor patient relationship”).
 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).
 U.S. Dep’t of Justice, Office of the Deputy Attorney General, Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana 1–2 (2009), a.k.a. Ogden Memo, available at https://www.justice.gov/archives/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states (last accessed May 1, 2017) and 2013 Cole Memorandum announcing that the DOJ will not prioritize the enforcement of federal marijuana laws in states with their own robust marijuana regulations and specified eight federal enforcement priorities in enforcement: https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (last accessed on April 29, 2017).
 Interview with Sessions is available at: http://www.hughhewitt.com/attorney-general-jeff-sessions/#more-33186 (last visited May 1, 2017).
 Summary of FY2017 Omnibus Appropriations Act is available: http://democrats.appropriations.house.gov/ (accessed May 4, 2017)
 U.S. of Am. v. Marin All. for Med. Marijuana, 139 F. Supp. 3d 1039, 1040 (N.D. Cal. 2015), appeal dismissed (Apr. 12, 2016)
 Cal. Lieutenant Governor Gavin Newsom: “California voters supported legalization by a historic and overwhelming margin, and their elected leaders are not going to stand aside and allow the senator from Alabama to turn back California’s clock.” Los Angeles Times, Weed’s legal in California, but activists fear a battle ahead, available at http://www.latimes.com/politics/la-pol-ca-marijuana-legalization-jeff-sessions-snap-20161201-story.html (last visited May 1, 2017).
 Health & Safety Code §11362.5(c).
 Precedential Decision No. MBC-2007-02-Q (against Tod H. Mikuriya, M.D.), California Medical Board.
 Id. at 36.
 Lalit Bajaj, Cindy Sehr, Marijuana Application in Pediatric Health Care, (Sep. 16, 2015), presentation is available at the AHLA Health Law Archive.
 With some limited exceptions, none are applicable in the medical marijuana context.
 Ross v. RagingWire Telecomm., Inc., 174 P.3d 200, 203 (Cal. 2008).
 James v. City of Costa Mesa, 700 F.3d 394, 396 (9th Cir. 2012).
 Coats v. Dish Network, LLC, 350 P.3d 849, 851 (Colo. 2015.)
 Richard Halstead, Marin Health Board Member proposes open use of medical marijuana at Marin General, Marin Independent Journal, Aug. 8, 2016, http://www.marinij.com/article/NO/20160808/NEWS/160809854 (last visited May 5, 2017)