ADVANCEMENT
STATE MEDICAL CANNABIS
PROGRAMS: WHAT PHYSICIANS
SHOULD KNOW AND CONSIDER
By Richard Y. Cheng, JD, CHC, Weaver Johnston Nelson, PLLC
April 2022 • DALLAS MEDICAL JOURNAL | 17
Just seven years ago the words “physicians”
and “cannabis” would have
rarely occurred in the same sentence
in Texas. In fact, to many physicians
(even today), cannabis, marijuana,
along with all the colloquial terms have a certain
stigma or conjure an image of illegal drug
use. However, over the last few years perspectives
have evolved due to changes in individual
attitudes, leading to more acceptance of
cannabis being woven into our societal fabric.
Also, it cannot be denied the intersection
between cannabis and medicine has been
developing
before our eyes
with additional
research and
implementation
of state medical
cannabis
programs. This
article will discuss
how health
care practitioners,
particularly
physicians, play
a significant role
in state medical
cannabis programs
and the
applicable regulatory
framework.
More
importantly,
this article will
identify the
issues practitioners
should
consider when
participating in
a state medical
cannabis program, along with a brief overview
of what has developed in Texas.
State medical cannabis programs vary
from state to state by setting the criteria for
practitioners who can recommend medical
cannabis to their patients or certify patients
suffering from a condition that qualifies for
the state’s medical cannabis programs (a.k.a.
the “qualifying condition”). For practitioners
who are interested in participating in a state
medical cannabis program, the first step is
to determine whether he or she is qualified or
possess the appropriate license to enroll into
the program. At this time, most states limit
medical cannabis recommendations, certifications
or prescriptions to doctors of medicine
(MDs) and doctors of osteopathic medicine
(DOs). Second, practitioners must determine
which state agency governs the state medical
cannabis program and identify the requisite
process to register with the agency. For
example, in Pennsylvania, practitioners are required
to produce more voluminous documentation
of credentials, training or experience
to demonstrate to the applicable agency
the practitioner is competent to treat the
qualifying conditions under its state medical
cannabis program. Conversely, other states
do not require training as a prerequisite to a
practitioner’s medical cannabis recommendation,
certification or prescription. However,
even without mandated training in the state
medical cannabis legal framework, practitioners
are not absolved of standards of care
concerns.
Practitioners should also be aware of treatment
parameters or specific limitations in the
state medical marijuana programs. States
usually give practitioners reasonable latitude
in determining whether medical cannabis
would be appropriate to treat a particular
illness or condition. Some states will allow
medical cannabis to be used if a chronic or
persistent medical symptom substantially
limits the ability of the person to conduct
one or more major life activities as defined in
the federal Americans with Disabilities Act of
1990, or finding that if not treated, a patient
may cause serious harm to his or her safety or
physical or mental health. On the other hand,
other states only allow medical cannabis for a
condition that appears on the state’s set list of
qualifying conditions, or otherwise approved
by the state’s medical cannabis enforcement
agency. For example,
in states like Rhode
Island, Michigan,
Delaware and Colorado,
medical cannabis
recommendations
or certifications
are allowed for a
chronic or debilitating
disease or medical
condition, if the
disease or condition
produces symptoms
of another illness
or causes a certain
degree of pain. This
clearly demonstrates
the need for practitioners
to exercise a
degree of judgment
when making decisions
to use medical
cannabis as part of
the patient’s treatment.
Some medical
boards have taken
action against practitioners
who have
issued medical cannabis recommendations or
certifications for patients who do not qualify
for the program. For example, in 2019, a physician
in Florida had his license suspended after
recommending marijuana to patients who did
not qualify for the Florida medical cannabis
program.
Practitioners should also determine if the
state medical cannabis program imposes
continuing treatment obligations in addition
to assessing the patient for a qualifying condition.
Some states require the practitioner to
assume responsibility for “ongoing care” of the
patient’s qualifying condition, the symptoms