“Not only do hospitals need policies to address medical marijuana from the provider perspective, they need to consider their role as employers,” an attorney says.
Use of medical marijuana (cannabis) in one form or another is now legal in 46 states and the District of Columbia (DC), and its recreational (non-medical) use is legal in DC and 10 states. In addition, there are some local ordinances that decriminalize minor cannabis offenses notwithstanding contrary state law.
Cannabis has been part of medical practice since ancient times, and it is known to have legitimate clinical applications in treatment of pain, nausea, glaucoma, and other disorders. According to one source, more than 60 U.S. and international health organizations support granting patients access to medical marijuana under a physician’s supervision.
But despite its growing social and legal acceptability, marijuana—along with LSD, heroin, opium, oxycodone, and other far more dangerous drugs—remains a Schedule I drug considered not safe to use even with medical supervision under the federal Controlled Substances Act (21 U.S.C. §§ 801 et seq.). Its use in the hospital setting thus presents serious issues, and the implications must be given careful consideration.
Hospitals Should Consider These Issues
For example, in states with a medical marijuana program, “hospitals may face a Catch-22 if they choose not to assist with administration of the cannabis product,” according to Florida attorney Martin Dix of Akerman LLP. “If the patient does not use or is not permitted to use medical marijuana while in the hospital and his or her condition worsens, is the hospital liable for the patient’s diminished health? Alternatively, if the patient does use the medical marijuana and it interacts poorly with the treatment plan, is the hospital or physician liable for the outcome?”
When use of the drug is permitted, hospitals should follow these guidelines:
- Develop policies to verify patients’ registration in the medical marijuana program, the safety of the drug, and how it will be handled if its use is allowed.
- Determine who will be permitted to acquire, order, and dispense it.
- Determine where and how it can be stored.
- Consider how drug diversion can be prevented.
- If medical marijuana use is part of an approved research protocol, consider how institutional review board approval can be obtained or verified.
In addition, there may be implications for post-discharge instructions. Even if possession is legal under the law of the hospital’s state, transportation of the drug across state lines is a federal offense. Must the patient be advised of this fact upon discharge? Would providing him or her with the remaining drug upon discharge make the hospital or physician an accessory to the violation?
Dix’s colleague Elizabeth Hodge adds, “Not only do hospitals need policies to address medical marijuana from the provider perspective, they need to consider their role as employers.” For example, she points out that if the medical marijuana is to be inhaled, employees might complain that it violates the hospital’s no-smoking and drug-free workplace policies. And, to complicate matters, she adds that “you need to be aware of employment laws at both the state and federal levels.”
Furthermore, the hospital’s accreditation status must also be considered. The Joint Commission requires safe control of “medications brought into the hospital by patients, their families, or licensed independent practitioners.” (Standard MM.03.01.05) There are legitimate reasons to allow “home meds,” but to protect the safety of the patient and the quality of care provided, the hospital needs to define its responsibilities for their safe use. How can this be accomplished if the “medication” is a Schedule I drug and its provenance has not been proven?
Perhaps the most ominous are questions concerning possible prosecution and license termination. Does permitting the use of a Schedule I drug run the risk of criminal prosecution? Will it imperil a clinician’s livelihood? Will it jeopardize the hospital’s licensure or compliance with Medicare conditions of participation? Will a marijuana opponent — a disgruntled staff member, patient or visitor, for example — report the situation to law enforcement or other authorities? Is the hospital willing to take such risks?
Both Dix and Hodge urge careful consideration of these kinds of questions and a review of all related hospital policies at least once a year.
State-Specific Examples Offer Guidance
Some organizations have attempted to deal with these issues by adopting sample hospital policies based on their respective state’s laws. The Minnesota Hospital Association, for example, developed three options: one would flatly prohibit medical cannabis, the second would allow it on a self-administered basis only, and the third would permit it as part of the routine medication process. Minnesota hospitals must determine for themselves which approach to take.
According to the Mayo Clinic’s website, “Medical cannabis is available as pills, oils, and liquids at state-designated dispensaries. It is not available at pharmacies or through a prescription from a doctor.” To receive cannabis from a dispensary, people with qualifying conditions must register with the state’s Department of Health, and Mayo physicians in Minnesota are permitted to certify patients for the medical cannabis program.
The Washington Health Care Association has developed a prototype medical marijuana policy that is specific to that state’s statute. It limits hospital staff involvement to confirming that the patient qualifies under state law. Staff are not to assist in obtaining or storing the drug or supervising its use.
The University of Pennsylvania health system, Penn Medicine, has an informational website for patients that includes an extensive set of FAQs. Like those of Minnesota and Washington, the Penn policy is specific to state law and focuses on registration in the medical marijuana program. The Penn policy states:
Possession or use of marijuana in any form, including medical marijuana, is prohibited in all Penn Medicine facilities with [one] limited exception. Certified patients who have a designated caregiver registered with the Pennsylvania Department of Health may be permitted to use medical marijuana during their inpatient admission if clinically appropriate and in compliance with hospital policies. Self-administration is prohibited. Only a designated caregiver may be permitted to administer medical marijuana during inpatient admission.
Careful Consideration is Required
Given the increasing availability of marijuana products, patients’ use of cannabis in some form is an issue every hospital will soon encounter if they have not done so already. Prudence dictates that the risks be thought through in advance and clear policies be adopted. This should be done with the advice of expert legal counsel and should include representatives from various hospital departments such as in-house counsel, compliance, risk management, finance, pharmacy, and materials management.
J. Stuart Showalter, JD, MFS, is a contributing editor for HFMA.
Interviewed for this article:
Elizabeth Hodge,of counsel, Ackerman LLP, West Palm Beach, Florida.
Martin R. Dix, partner, Ackerman LLP, Tallahassee, Florida.