June 16, 2016
Jean Ann S. Sieler
On June 8, 2016, Governor Kasich signed into law House Bill 523, to be effective on September 7, 2016, legalizing the use of Medical Marijuana under certain circumstances, with many limitations, and allowing the state medical board and pharmacy board one year to adopt applicable rules. In the meantime, healthcare providers should be cognizant of the various provisions of the law before endeavoring to address the needs of patients. The following are highlights of House Bill 523 with which healthcare providers should become familiar.
1. Qualifying Medical Conditions. Medical marijuana can only be prescribed for “qualifying medical conditions” which are laid out in the statute at ORC §3796.01(6) to include:
(a) Acquired immune deficiency syndrome
(b) Alzheimer’s disease
(c) Amyotrophic lateral sclerosis
(e) Chronic traumatic encephalopathy
(f) Crohn’s disease
(g) Epilepsy or another seizure disorder
(j) Hepatitis C
(k) Inflammatory bowel disease
(l) Multiple sclerosis
(m) Pain that is either of the following
(i) Chronic and severe
(n) Parkinson’s disease
(o) Positive status for HIV
(p) Post-traumatic stress disorder
(q) Sickle cell anemia
(r) Spinal cord disease or injury
(s) Tourette’s syndrome
(t) Traumatic brain injury
(u) Ulcerative colitis
(v) Any other disease or condition added by the state medical board
Under ORC §4731.302, any person may submit a petition to the state medical board requesting that a disease or condition be added as a “qualifying medical condition” for the purposes of the statute.
2. No Physician Suppliers or Family Recommendations. ORC §3796.031 provides for a closed loop payment processing system to create accounts to be used only by registered patients and caregivers at licensed dispensaries. Under ORC §4731.30 (G), Physicians shall not:
(1) Personally furnish or otherwise dispense medical marijuana; or
(2) Issue a recommendation for a family member or the physician’s self.
3. No Smoking Marijuana. Under ORC §3796.06, only certain forms of marijuana, taken by certain methods, are allowed, which do NOT include smoking or combustion but allow vaporization:
(3) Plant materials
(6) Other form approved by the state board of pharmacy
Any form or method that is considered attractive to children, as specified in rules adopted by the board, is prohibited. ORC §3796.06 (C)
Tetrahydrocannabinol content shall be not more than thirty-five percent (35%) for plant material and not more than more than seventy percent (70%) for extracts. ORC §3796.06(D)
4. Physician Statement. Patients will seek a Physician Statement from a physician who holds a Certificate to Recommend who will apply to the state board of pharmacy for registration of the patient or a caregiver assisting a patient. The Physician Statement shall certify the following pursuant to ORC §3796.08(2):
(i) That a bona fide physician-patient relationship exists;
(ii) That the patient is diagnosed with a “qualifying medical condition”;
(iii) That the physician has requested from the drug database a report of information related to the patient that covers at least the twelve months immediately preceding the date of the report;
(iv) That the physician informed the patient of the risks and benefits of medical marijuana as it applies to the patient’s diagnosis and history; and
(v) That the physician informed the patient that it is the physician’s opinion that the benefits outweigh the risks.
Thereafter, the board shall register the patient or caregiver and issue to the patient or caregiver an identification card ORC §3796.08(3).
5. Certificate to Recommend. Pursuant to ORC §4731.30 (B)(1), a physician seeking to recommend treatment with medical marijuana shall apply to the state medical board for a Certificate to Recommend. The physician cannot have an ownership, investment, or compensation interest in the dispensing of marijuana.
6. Conditions to Recommend. Under ORC §4731.30(C)(1), the conditions which must be met before a physician can recommend that a patient be treated with medical marijuana include all of the following:
(a) the patient is diagnosed with a qualifying medical condition;
(b) a bona fide physician-patient relationship has been established through:
(i) an in person physical exam by the physician;
(ii) a review of the patient’s medical history by the physician;
(iii) an expectation of providing care and receiving care on an ongoing basis; and
(iv) if the patient is a minor, parental/responsible person’s consent
7. Recommendation Expiration. The recommendation is valid for not more than 90 days, and can be renewed not more than three times. Thereafter, the physician may issue another recommendation only upon a physical examination. ORC §4731.30(D)(2)
8. Annual Report & CME Requirements. Annually, the physician must submit to the state medical board a report that describes the physician’s observations regarding the effectiveness of medical marijuana in treating patients during the year, and complete at least two hours of continuing medical education in medical marijuana approved courses. ORC §§4731.30(E) and (F)
9. Physician Immunity. A physician is immune from civil liability, is not subject to professional disciplinary action, and is not subject to criminal prosecution under state law for advising patients about the benefits and risks of medical marijuana treatment to treat a qualifying medical condition, recommending the use of medical marijuana to treat or alleviate the condition, and monitoring a patient’s treatment with medical marijuana. ORC §4731.30(H)
10. Toll Free Line. A toll-free line is to be established by the board of pharmacy for patients to report adverse reactions and to provide information about available services and assistance. ORC §3796.17
11. Employment and Driving Ramifications of Use. Generally speaking, this statute does not limit employer decisions based upon marijuana use, standards for employment and safety, and protects employers from unemployment compensation claims. Physicians should be cognizant of the adverse effects a patient may experience in the employment setting before choosing to recommend medical marijuana, particularly where an alternative treatment may not affect employment. Issues related to operation of a motor vehicle or equipment also may apply.
This law also does not preempt existing federal law criminalizing the use and distribution of marijuana.