Episode 18: How to Avoid the Compliance Dangers of Medical Marijuana

Episode Transcript

CJ: Welcome everybody this is CJ Wolf from Healthicity, I'm Healthicity's Sr. Compliance Executive and this is another episode of Compliance Conversations. Today we have a wonderful guest, Judy Cassel. Welcome Judy.

Judy: Thank you.

CJ: Judy is an Attorney, an expert legal advisor on all things medical marijuana. I thought that was a really interesting topic. Those of you who have attended the HCCA's recent compliance institute in Las Vegas back in April would have noticed that there were a couple sessions on this topic. We thought it would be great to get an expert on the line rather than me trying to fake it, you'd all see through that pretty quickly. Judy is here to help us with that. Judy, before I get into asking you some questions, would you mind introducing yourself a little bit? Tell us who you work for and what you do?

Judy: Great, thanks CJ. Yes. Judy Cassel, and I work for Cannabis Law P.A., we're a law firm that is out of Pennsylvania, and we practice in a medical marijuana space representing growers, processors, laboratories, physicians, ancillary businesses related to medical marijuana. We practice predominately in Pennsylvania, New Jersey, and Maryland, though we have also been hired as consultants in other stats such as Ohio and New York, in representing those types of clients. We do administrative litigation, so we defend and represent cannabis owners, cannabis company owners, before state agencies. We also help them with their contractual concerns, we also do a lot of applications, helping people with their applications to become medical marijuana operators.

CJ: You have a lot of experience in this space, I'm sure this area is growing quite a bit with a lot of states that seem to be moving in this direction. Is that the trend that you would say is true?

Judy: Yes, it seems to be exponential. The more states that legalize, the more the number of states that have legalized marijuana it seems to get traction, and then you find you see more legalization on the ballots for the next session of voting. I do think it has a lot momentum right now, even as you might know Jeff Sessions came out last week with a statement saying that he is finally agreed that there is some medicinal value in medical marijuana. If we can convince someone like Jeff Sessions we're pretty sure we can convince everybody else.

CJ: Yeah, I was just going to say, I live in Utah and we're a pretty conservative state, and the latest legislative session has talk about medical marijuana. Maybe you can comment on this, there is differences between legalizing recreational use, but also the medical marijuana side of things. I would think that there would be more states that have approved it for medical purposes. Could you comment on that, maybe break it down for how many states out there that have laws out there to allow it for medical use versus recreational.

Judy: That's a great question CJ. About 28 states legalized marijuana, of which 7 have recreational or adult use marijuana, the rest are strictly medical marijuana. I believe there's 3 more states, I think Kentucky is one of them, that have it on their ballot for November, so we may cross the 30 line this year.

CJ: That's interesting, and I appreciate your expertise there because I just hear about it anecdotally and have kind of had this sense that it is increasing throughout the country. You mentioned Jeff Sessions, so maybe I can just throw out this question too, how do we reconcile at the federal level it's considered illegal, and at state level it's legal. I'm not an attorney, so maybe you can even correct me, if it's not right to say it that way. Could you comment on that?

Judy: Sure. And that's a really good question, and everybody is, most people are kind of aware, that that dichotomy exists, but they are not sure how it exists, so your question is spot on. What occurs is this can happen because of our 10th amendment. Things that are prohibited at the federal level, where states allow, or permit, something to occur, that doesn't result in a conflict or preemption of federal law over state law in states. That's the 10th amendment that allows that, kind of bizarre situation to occur.

CJ: Interesting. Now if we can maybe jump in on the medical side. Most of our listeners are either physicians, physician practices, hospitals, skilled nursing facilities, even some rehab facilities. A lot of medical professionals and compliance officers listening. I think a lot of physicians might be asking compliance officers, and even their in house or external legal counsel. What are the dangers of me as a physician, or as a practice, getting involved in recommending medical marijuana? Is there a danger of losing their license, I'm sure that may vary by state, what are your thoughts about that?

Judy: That's a really good question, and I do represent some physician groups, I represent one physicians group that is strictly medical marijuana, which is kind of unique, so that is a question on everybody's mind, in terms of what the dangers are, what are the risks. I will say that, and you use the word recommending which is very important to use. As most physicians know, when they get licensed to prescribe medication, in order to maintain that license, they are precluded from prescribing anything on schedule 1 of the controlled substance act, the CSA. They would lose their license if they prescribed some kind of medication that was on that schedule, schedule 1. What happened back in 2002, a physician who was talking to a patient, saying I think you would really benefit from medical marijuana, was investigated and prosecuted by the federal government out in California.

CJ: Wow.

Judy: Yeah, pretty dangerous. The 9th circuit actually found that physicians have a right to free speech, go figure. If they are just recommending that medical marijuana may help the patient, they are not violating their oath, they are not violating their licensure, about prescribing. We always say that physicians are allowed to recommend medical marijuana, but they are not allowed to prescribe. I will add that even though that the 9th circuit has decided that case, and obviously that is not precedential for here, because we're in the 3rd circuit. I will note that that happened in 2002, and the federal government has never, since 2002, brought another case against a physician. We think it's a pretty strong argument why physicians will be covered and protected for recommending medical marijuana.

CJ: Okay. Is it not allowed in any states for them to prescribe? If a state has

Judy: That is correct.

CJ: In some of these states where they have passed legislation where it's legal to use medical marijuana, can they prescribe it?

Judy: No. That is because the licensures deal with that schedule 1, that controlled substance act. In order for them to have their license. They can still recommend it. Now, some states will call it, will use a different verb, other than recommend. Certified, lift, permit. They will not use the word prescribe.

CJ: Okay. Interesting. Then if a physician is recommending it, I'm just thinking from the patient's perspective, I say okay, sounds good, how do I get some? Can you give it to me Dr.? Obviously probably not, right? So, they are recommending, so then how do they get that information to the patient, or where does the patient go from there?

Judy: Right. All the states that have medical marijuana have set up a process. In Pennsylvania, I'll just use as an example, but it's pretty similar in all states. In Pennsylvania, someone one who would like to go to a Dr. to see if medical marijuana would benefit them, they go online, and they register with the state. So that's the patient. Then they go to the Dr. and say, hey I'm having this pain and nothing else has solved it. The Dr. will make a diagnosis, and then recommend medical marijuana. By looking the patient up in the state system, they'll see the patient and the Dr. will put in the code that says yes, we're recommending medical marijuana. The patient will then go home and acknowledge that. The state will send them a card. The patient will take the card into a medical marijuana dispensary and be allowed to purchase their medical marijuana from the dispensary.

CJ: Ah, okay. This is going to sound very naive, is all of medical marijuana, is it all smoked? If you could tell me a little bit about how that would actually work from a patient's perspective, what do they do.

Judy: Oh, excellent question. I love questions like that. Every state has their own list of the forms that are approved to be dispensed. Pennsylvania initially came out, and still is the case, there's no smoking, but they did have pills, ointments, drops, and vapes. Originally Pennsylvania had no flower, no edible, no smokable. They just passed, or approved, flower, but it is not to be smoked, just to be vaped. So each state will have it's own format that the medical marijuana can come in. Then the dispensary will then sell it. The grower, processor, is charged with growing and processing it into that form.

CJ: Interesting. What kind of conditions have you run across where its being recommended by physicians. Is it mostly for pain control? Or what other areas have you seen that to be effective?

Judy: Right. Pennsylvania is one of the most expansive. Ohio and New Mexico are pretty close behind them, or right around them in terms of conditions that are approved. Pennsylvania has approved, originally 17, and then they just approved 4 more, so they are up to 21 different conditions. Part of those conditions are PTSD, and chronic pain, which is key, for a lot of reasons we can chat about in a moment. Having that broad base of conditions has allowed Pennsylvania to grow the medical marijuana program much more exponentially than other states. For instance, we've had medical marijuana on the shelves for about 3 months, we have 30,000 patients registered. New Jersey had medical marijuana on the shelf for 5 years and had 4,000 patients registered, because they only had 5 conditions.

CJ: That's really interesting. Given that some of these states are close, can patients cross state lines, given what you said earlier, sounds like probably not, you need to be a resident of the state to follow that states process for registering as a patient, have the Dr. recommend etc. Is that accurate? They couldn't cross state lines?

Judy: Exactly CJ. There is a lot of latitude within the state. You can go to different dispensaries for your medication, but you can't cross state lines. That goes for residence of Pennsylvania and they purchase in Pennsylvania, we're telling them not to cross state lines even to use it in another state. So don't take it on your airplane. Don't drive to a different state and smoke it or eat it, or whatever you're doing, don't do it. Because technically, that's a violation of law.

CJ: Interesting. All these what ifs are going through my mind, so this is really fascinating. So maybe we could talk a little bit, going back to how physicians can be protected. How do they insure that they are complying with state law? What are you recommending to clients and to physicians in general.

Judy: Well, I hate to say find a good lawyer, but that does tend to be a really good solution for some of these things. At a minimum, physicians should take a look at the regs, usually the regs are divided so that you can easily find a section that pertains to physicians. So, all the states that we've looked at have a physician section, and they'll tell you about the requirements to stay legal within the state. For instance, normally you'll need to take a course, 2-4-hour course, that teaches you, in very highly technical medical terms the things that are related to medical marijuana, so that when you are recommending that you're recommending from a base of information. So that is one thing, also you have to register with the states, they can kind of keep track of it. You have to have certain promises about not advertising and things like that, but as long as you stay compliant the states not going to be, you know, approaching you with violations, or fees, or fines. In fact, most states have a provision in their act that actually protects physicians from any kind of prosecution.

CJ: Okay, that's good to know. Have you seen, you mentioned the one enforcement back in 2002, from kind of a federal level, have you seen a state enforcement? You're obviously defending physicians and representing them, so I'm assuming there are probably some cases.

Judy: There are not cases where states or federal government, that I've had a personal experience with, that have been brought up on any kind of charges, or even fined or fees. I think California had one physician and actually one lawyer, brought up on charges, but that was because they were selling illicit drugs along with medical marijuana, they were also taking it across state lines. There were some blatant violations of the law, there wasn't just this compliant physician that was recommending medical marijuana, there have been no cases of that across the country.

CJ: That's kind of our mantra in the compliance world as well, right? Is that, a lot of people get scared in the compliance world when you're dealing a lot with false claims act and anti-kickback statute and those sorts of things, and people think that they will get in trouble. I'm like, well if you're trying to do what's right. The government doesn't have unlimited resources either, they are not going to come after you, usually, for honest mistakes, especially if you're trying to comply. It's usually those folks that are way off in left field that are getting in trouble. Especially, you mentioned other illicit drugs, we've had past webinars that we've done, and talks, about the whole opioid epidemic, so there is a lot of enforcement there. I think any time there is something new that comes up like medical marijuana, I think compliance folks get a little nervous. I think this is really helpful knowing that folks like you are out there with expertise and resources and you're dealing with the issues that come up day to day.

Judy: And CJ, you bring up a good point. There's actually, in everybody's talks, a lot about the tax bill that was recently past, in all of the spending bills that have past in couple years there's a small little provision that people may not be aware of in there, that precludes the DOJ from spending any federal funds on prosecution of those that are compliant with state laws. That includes physicians. DOJ does not have the money to prosecute anybody that is state compliant right now.

CJ: Gotcha. Yeah. Exactly. Good. Okay. Let's kind of move a little bit ahead here and talk about what other issues might be facing health care facilities and physicians that recommend medical marijuana.

Judy: I do want to say the obvious, and that is that medical marijuana provides physicians with an alternative to prescribing opioids. You may have not have heard of a study that was done by a husband and wife team, they were both Dr. Hurd, and what they found was they analyzed all the states that legalized medical marijuana. They found that there was a 25, well 24.8 percent decrease in opioid overdose and opioid death. Related to all the states that legalized marijuana, and that's because it gives physicians alternatives to prescribing opioids. I just wanted to make sure the physicians have that as their statistics when looking at recommending medical marijuana over prescribing opioids.

CJ: That's great, and you said that the two physicians last name was Hurd, is it H E R D, or is H E A R D?

Judy: It's actually H U R D.

CJ: Oh, Hurd, excuse me. Excellent. So, the study by Dr.'s Hurd would be interesting for our listeners to look at to see some good empiric data about a reduction in opioid addictions and deaths in states that have legalized medical marijuana. Great to know about, I didn't know that. So I kind of cut you off there.

Judy: Okay. You in your physician days may have also seen the special that was on CNN by Sanjay Guptda, the physician that is on CNN, and he looked at all the different research, and one of the things that are out is that medical marijuana not only can relieve the side effects from withdrawal from opioids and can reduce the cravings for opioids during withdrawal. They studied the scans of the brain, and they found that people that took medical marijuana during the withdrawal, actually experienced, via the brain scans, a healing of their brain.

CJ: Interesting.

Judy: So the damage that was caused by opioids. That's not me, that's Sanjay Guptda, and people can look that up and check that out as well. Some really cool things for physicians can look at. In terms of things they need to be aware of, they just really need to, in addition to what you and I talked about CJ, in looking at the regulations and making sure their compliant and making sure they are recommending and not prescribing. Making sure that they are actually giving a diagnosis to the patient, there's no tele-medicine involved. In addition to those types of things, they need to make sure that they have some assistance to developing their informed consent, and their limited liability forms that they have patients complete when they come to visit them.

CJ: Good points, absolutely. How do, kind of on the practically and operational sides, how do these medical providers, either hospitals, facilities, physicians, collect fees, and what they collect a fee on as it relates to recommending medical marijuana?

Judy: Good question. The physicians can still collect their normal fee for the visit, and the diagnosis. They can process that through regular insurance companies. In terms of the medical marijuana, the patient will go to the dispensary and pay cash for the medicine. The Dr. will be able to process all of their diagnosis and their Dr.'s visits the same way that they always have.

CJ: Yeah. Yeah, I would think that that makes sense to me. The other thing a lot of our folks, our compliance professionals that listen, are involved in privacy, HIPAA and that sort of thing. What kind of issues, or things have you seen between HIPAA and maybe even disclosure to law enforcement and those types of issues.

Judy: Right. HIPAA is still alive and well in the medical marijuana realm. I think that each state, and each physician in the state, would have to take a look at the access that various entities have to this information. For instance, in some states the department of health, or the department of pharmacy, the board of pharmacy may have access to the records, and that should be part of your informed consent with the patient if that is in fact the case. Additionally, some places have law enforcement being able to access those records. Pennsylvania started out that way, soon determined that that was not the best path to follow, and they have since severed the connection between law enforcement being able to look at medical records. You just have to be very cognitive in each state, who's accessing those records, and be making your patients aware that those records might be seen by certain entities.

CJ: Gotcha. One of the, I don't know if I mentioned this to you previously, but I trained as a physician, so I know I'm not practicing, and have not, I've been doing compliance full time for about 20+ years, but I have a lot physician friends and they're always talking to me about their liability insurance. How do they maintain that if they are going to start recommending this? Is there a risk there? There are probably some fears, weather they are valid or not, what are your thoughts about liability insurance?

Judy: The first thing I always tell the clients, or the physicians that call me for advice, is to call their insurance company and have a frank and candid conversation. Most insurance companies will continue to insure the physicians, but they need to be made aware under the DNO part of the insurance. They need to be made aware of what the physicians doing. Lots of times, for no extra money, they can put a rider in that says we're covering you for your recommending medical marijuana. It has not been a problem, but I think it would be a problem if a physician moved forward on recommending medical marijuana without apprising their insurance company.

CJ: Yeah, I think you're right. Really interesting. I wanted to ask you, we're getting a little bit closer to the end of our episode here, but I wanted to ask you about the entities and business that dispense medical marijuana. It sounds like you also have experience representing them. Do they have unique, the states are regulating how this should be done, but what do they face?

Judy: Well, they face an enormous amount of cost associated with security. Most states have very stringent security requirements on both the dispensary and the grower processor. For instance, if you go into a CVS or rite aid or one of those drug stores, you can walk right up to the counter, you can get your opioids, your prescriptions, just by telling them your birth date, they look it up make sure the Dr.'s prescribed it and away you go. Dispensaries go through a double locked door with armed guards, you're accompanied by a dispensary attendant the entire time you're in there. If you don't have a medical marijuana card you can't get in, so even if you're a parent of a child, well not a child so much, you would get a caregiver card, but if you have an elderly parent that you're taking there you have to stay outside in the lobby. They are very, very secure. There is a lot of security around them so there is additional liability where that is concerned as well. You just again have to have a conversation with your insurance company and try to have a local insurance company that you can talk to, a local bank that you can talk to, the more local you can find your vendors, consultants and contractors, the more likely you will have a good outcome for those things.

CJ: This may be a silly question too, but where do they get their medical marijuana from. Are they growing it in certain places, are they getting it from outside the country, where does that come from?

Judy: Yeah. Most of the states that initially legalized it, realized that, again theoretically, anybody that is going to grow marijuana shouldn't be having it already. So they are going to have to get it from outside of the state. They allow a very small window for the grower processors to purchase seeds. Normally they are purchased, not only from outside the state, but outside the country. A lot of people get their seeds from Israel. Israel is a huge medical marijuana proponent and they are on the cutting edge of a lot of stuff. A lot of people get their seeds from Israel, but then the window closes. They may give you 30, 60 days to get the seeds and get the plants up and running and after that you'll have to cultivate your own seeds, and you'll have to be sustainable.

CJ: Wow, really interesting. All sorts of questions. You're just a wealth of knowledge. Let me give you kind of the last word in the last minute or two we have here. Is there anything that I didn't cover that you're like, why didn't this guy ask me this? And that these are what people ask me all the time when people learn what I do for a living. What last minute parting thoughts do you have.

Judy: I thought you did a great job asking very targeted important questions, but I will say that the biggest hurdle we have is education. We need to educate people on the medicinal benefits of marijuana. I got into this because of a girlfriend of mine, who's a lawyer who has a 5-year-old who has epilepsy, and it was the only medication that would work. People need to really realize that there are some real good things happening with medical marijuana, this is not an excuse for people to just get high. In fact, a lot of the medical marijuana has little or no THC, which is the psycho-active part of medical marijuana, and has the CBD instead, which is very, very helpful in a lot of these conditions. I encourage people to go on YouTube and you can search on MS or epilepsy or any of those kinds of conditions and you can see people taking the medical marijuana and you can see the actual results that are very positive from that administration.

CJ: Fascinating. I've learned a great deal in just a short time. Why don't you also tell our listeners one last time, how they can reach you, either via website, or whatever your preferred method is if they need further expertise?

Judy: Sure. Thanks CJ. Yes, our website is CannabisLawPA you can go on there, even if you don't need help from me, it's a good source for additional information, and then if you need to give me a call it's 717-703-0804.

CJ: Thank you Judy. Everyone again, that was Judy Cassel, expert in all legal issues with medical marijuana, and from a compliance perspective we're seeing kind of some cross over, though we might not deal with this day in and day out, we're definitely working with leadership in our facilities and our medical practices where this may be an issue and folks might turn to you as a compliance professional. Though we can't be an expert in everything, part of our job as compliance officers, is to know where to turn. Judy sounds like she'd be one of those great people we could turn to. Thank you again Judy, and thanks everybody for listening to another episode of Compliance Conversations, Until next time.