IAHA Quarterly Lecture: “Take Two Hits & Call Me in the Morning”

On September 18th, 2014, the Illinois Association of Healthcare Attorneys held their Quarterly Lecture at Katten Muchin Rosenman, LLP in Chicago, IL. The topic this year, was “Take Two Hits & Call Me in the Morning: What Doctors and Hospitals Should Know about the Illinois Compassionate Use of the Medical Cannabis Pilot Program Act.”  Gabriel Bankier Plotkin, from Miller Shakman & Beem, LLP, discussed the current medical marijuana law in Illinois and what it means for physicians, hospitals, and their attorneys.

Currently, Illinois has received 369 applications to the Illinois Department of Agriculture for marijuana grow centers and 211 applications to the Department of Financial and Professional Regulation for dispensaries. [1] Although the number of applicants is high, Illinois plans to award 21 permits for cultivation centers and 60 licenses for dispensaries. [2] The Department of Health in Illinois has already begun allowing patients to register for the Program. [3] Since October 8, 2014, the Department of Public Health has received over 6,300 patient applications to the Program. [4] However, regardless of the number of applications, dispensaries, participants, and patients, the Program would not be successful without a physician’s “written certification” to “qualifying patients” permitting them to purchase marijuana. [5] This “written certification” does not mean that a physician is providing a prescription for medical marijuana, but is merely certifying that the patient has met the definition for a “debilitating medical condition” provided by the Act. [6] The speaker described this Program as one of the most strict and heavily regulated programs in the country.

The Illinois Department of Public Health (“DPH”) has included 38 (soon to be 39) different “debilitating medical conditions” that qualify a patient for the Program. [7] DPH, however, has the authority to add new conditions at its discretion. [8] The Act also defines a “physician” as a doctor of medicine or osteopathy licensed under the Medical Practice Act of 1987; therefore eliminating chiropractors, dentist, or other non-MD or non-DO physicians from certifying these conditions. [9] The physician must also have a current DEA registration, be currently licensed in good standing, and hold a controlled substance license. [10] The physician must conduct an in person physician examination, maintain a record-keeping system identifying patients for whom the certification was made, and the diagnosis may only be made in the course of a “bona fide” physician-patient relationship. [11] The certifying physician must include in the written certification form, provided by DPH, that the patient is likely to receive palliative benefit from marijuana for his or her debilitating medical condition, that the patient has a specified condition, and that the patient is under the physician’s care for the debilitating medical condition. [12] The Act allows patients an “adequate supply” of marijuana, which is quantified as 2.5 ounces of marijuana every 14 days, but allows patients to apply for a waiver for more, if a physician certifies that the adequate supply is insufficient.  [13]

Although this Act prevents a physician from being arrested or prosecuted for criminal and other penalties if their patients engage in the medical use of cannabis in the State of Illinois, marijuana remains illegal on a federal level. [14] Marijuana is a Schedule I controlled substance under the Controlled Substance Act which makes it a crime to manufacture, distribute, or dispense marijuana under all circumstances. [15] At the Lecture, the speaker discussed Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) and suggested that it is highly unlikely that providing a written certification, like the one provided by the Illinois Act, is “illegal” under federal regulations. In Illinois, the recommendation is not a prescription, even if the physician anticipates that the patient will use the recommendation to obtain marijuana. The Speaker also discussed other potential negative consequences for physicians who participate in this Program. He discussed the potential for loss of federal funding for research, loss of Medicaid/Medicare monies, loss of DEA registration, and written certification and mail fraud implications as the forms must be processed through the US Postal Service. However, the Speaker opined that it is highly unlikely that a physician will actually be held liable for these risks, but the federal government still has the power to do so. 

The Speaker suggested that attorneys act as advocates for physicians in providing them with the proper information regarding certification, potential liability, and even the benefits/risks of medical marijuana on his or her patients. The statute provides a foothold in the Department of Public Health as they “shall develop and disseminate educational information about the health risks associated with the abuse of cannabis and prescription medications.” Similarly, physicians and attorneys may gain more information from journals, patient advocacy groups, and information from other physicians. The Speaker also suggested that both physicians and attorneys create and use informed consent forms for patients, follow the law strictly and completely, and also to speak to insurance carriers ahead of time about the potential of certifying patient status for the Program.

 

Yesenia M. Perez is a 3L at DePaul and is currently pursuing her health law certificate. Yesenia received her undergraduate degree from Rutgers University in Biological Sciences and Spanish Linguistics. Yesenia hopes to pursue a career in healthcare policy or compliance. 


References:

[1] Marijuana Business Daily, 369 MMJ Business Applications Submitted in Illinois. (Sept. 24, 2014), http://mmjbusinessdaily.com/369-mmj-business-applications-submitted-in-illinois/.

[2] Id.

[3] Medical Cannabis Pilot Program, Welcome to the State of Illinois Cannabis Pilot Program, eLicense System, Illinois Department of Public Health, (2014), https://medicalcannabispatients.illinois.gov/.

[4] WAND17. Over 6,300 Medical Marijuana Applications Submitted to Illinois Department of Public Health. (Oct. 8 2014), http://www.wandtv.com/story/26740213/over-6300-medical-marijuana-applications-submitted-to-illinois-department-of-public-health.

[5] Compassionate Use of Medical Cannabis Pilot Program Act (hereinafter “MCCP”), Pub. L. 98-0122, §10(k)(2)(y) (Jan. 1, 2014).

[6] MCCP, supra §10(y)(3).

[7] Id. at §10(h)(1).

[8] Id. at §10(h)(2).

[9] Id. at §10(s).

[10] Id.

[11] Id. at §10(y)(3).

[12] Illinois Medical Cannabis Pilot Program, Physician Written Certification Form, Illinois Department of Public Health (2014), http://www2.illinois.gov/gov/mcpp/Documents/Physician%20Certification%20Form%20080814.pdf.

[13] MCCP, supra §10(a).

[14]  21 U.S.C. 13, Schedule I, §812(c)(10) (2012).

[15] Id.