QUESTION: A patient is asking the hospital staff to allow him to use medical marijuana that he obtained in compliance with state law. Should we let him?
ANSWER: This is a tough question especially in light of the recent, increased, legal acceptance on a state level of both medical and recreational marijuana. The patient in the question is claiming that he obtained the medical marijuana in compliance with state law. In such a situation, you should ask yourself a number of questions. First, does your state law protect facilities or staff that permit medical marijuana use? For example, Maine law states that hospitals and staff members will not be liable for facilitating the use of medical marijuana by certified, admitted patients, as long as the marijuana is not smoked or vaped. Second, does your state law require a hospital to accommodate a patient’s use of medical marijuana? Minnesota has a law on the books that says, in part, “no [health care] facility shall unreasonably limit a patient’s access to or use of medical cannabis to the extent that use is authorized by the patient.”
Even if the answer to these first two questions is “yes,” you have to ask yourself if you are willing to accept the legal risk under federal law. Marijuana is a Schedule 1 controlled substance under the federal Controlled Substance Act. Regardless of state laws to the contrary, it is still a violation of federal law to manufacture, possess or prescribe marijuana for either medical or recreational purposes. The Medicare Conditions of Participation (“COPs”) for hospitals state “drugs and biologicals must be controlled and distributed in accordance with applicable standards of practice, consistent with Federal and State law.” The COPs do not anticipate that Schedule 1 controlled substances will be stored or distributed in hospitals. The applicable regulations and the Interpretive Guidelines to the COPs only refer to Schedule 2-5 substances.
Some hospitals have accepted the risk and permit patients to bring their own medical marijuana into the hospital for administration. At least one of those hospitals has put the following safeguards in place:
- Hospital staff (such as nurses and pharmacists) are not permitted to assist with dispensing or administering medical marijuana. The drug must be self-administered.
- The hospital is required to verify that the patient is registered with the state’s medical marijuana program.
- The hospital must provide a safe for the storage of medical marijuana in the patient’s room. Hospital employees do not access the safe or handle the medical marijuana at any time.
- The medical marijuana must be in liquid or capsule form, and must have been provided by an in-state dispensary.
That being said, such safeguards do not protect you from CMS disapproval or sanctions. Although it is a fascinating topic with numerous legal issues to consider, the fact is that marijuana continues to be a Schedule 1 drug under federal law. Consequently, there is risk that CMS could take action based on the COPs.