of that condition or the symptoms associated
with the treatment of that condition,
establishing rules stating that ongoing care
or ongoing treatment cannot be limited to a
patient being certifi ed, recommended or prescribed
medical cannabis. By now, it is obvious
that the terms “recommend” and “prescribe”
may appear to be used interchangeably.
However, they should not, because each has a
diff erent legal eff ect.
To clarify, medical cannabis or medical
marijuana is a Schedule I drug under the federal
Controlled Substances Act, which means
federal law still considers medical cannabis
illegal and without any accepted medical
value. As such, it is arguably illegal for practitioners
to “prescribe” medical cannabis as
a drug. Instead, practitioners “recommend”
medical cannabis use for the patient or certify
that the patient has a condition that qualifi es
him or her to participate in the state medical
cannabis program. In a federal Ninth Circuit
court opinion, it was decided that the federal
government is prohibited from revoking a
physician’s registration to prescribe controlled
substances or initiate an investigation of a
physician that might lead to such revocation,
where the basis for the government’s action
was solely the physician’s “recommendation”
of the use of medical cannabis. The reasoning
in the case has been challenged and generally
not considered binding outside of the Ninth
Circuit. Further, because many state medical
cannabis programs require practitioners to
write instructions, including the dosage for
the patient, to the medical dispensary, this
compromises the protected physician-patient
communications regarding the medical
cannabis recommendation process. Nonetheless,
the Ninth Circuit case is often used to
demonstrate practitioners fell short of aiding
and abetting a violation of the Controlled
Substances Act.
Many practitioners remain in the dark
regarding what is allowed in Texas for medical
cannabis. Texas passed the Compassionate-
Use Act on June 1, 2015, due to the introduction
of Senate Bill 339 during the 84th
Texas Legislature, which allowed the use of
low- tetrahydrocannabinol (“THC”) cannabis
products in for Texas patients with intractable
epilepsy, creating the Texas Compassionate
Use Program (“TCUP”). TCUP was expanded in
2019 and 2021, allowing the program to cover
eight diff erent qualifying conditions, eliminating
the THC to cannabidiol (“CBD”) ratio and
broadening the type of physicians qualifi ed to
prescribe low-THC cannabis. Qualifi ed physicians
meeting the requirements under Texas
Occupations Code Chapter 169 may register
with the Texas Department of Public Safety’s
Compassionate Use Registry Portal (CURT).
Once the application is approved and a CURT
account is created, physicians are permitted
to prescribe low-THC medical cannabis to
Texas resident patients.
Beyond the issues discussed in this article,
there are many more including, but not limited
to, concerns involving federal health care
programs such as Medicare, state self-referral
prohibitions, and state anti-kickback or antisolicitation
matters. It is critical that practitioners
consult the law in their respective states
to learn the applicable legal framework and
understand the procedures involved with
treating patients with medical cannabis. DMJ
Refrences
1. The terms “recommendation,” “certifi cation” and “prescription” have diff erent legal eff ects for a practitioner and many times they are
dictated by statute, which vary state to state.
2. Senate Bill 90 was fi led in 2021 during the 87th Texas Legislature to include advanced practice registered nurse and physician
assistants as “medical practitioner” under the Texas Compassionate Use Program, but it was never passed into law.
3. The Texas Compassionate Use Program uses a list of approved qualifying conditions.
4. https:/www.nbcmiami.com/news/local/fl orida-marijuana-doctor-prescribing-over-internet/157944/.
5. Cannabis includes hemp, which is federally legal. For this article, medical cannabis and medical marijuana may be used
interchangeably.
6. Conant v. Walters, 309 F.3d 629, 632 (9th Cir. 2002).
7. Tex. Occ. Code § 169.002(b).
8. Texas law uses the word “prescribe” in the Texas Occupations Code despite the legal issues stated in this article.
Richard Y. Cheng, JD, CHC
Representing physician groups, post-acute care providers,
community hospitals, management service organizations
(MSOs), private equity groups, ancillary providers, retail
medicine providers, med spas, behavioral health and more.
Healthcare Attorney
For Providers, Investors and Management
• Counsel on regulatory issues,
Stark, Anti-Kickback Statute, FCA,
HIPAA, EKRA & CPOM
• Physician relationships with
post-acute care providers, SNFs,
hospices & home health
• Advise on clinical alignment
models for integration
• Employment agreements, noncompetes
and compensation
• Physician issues in medical
cannabis programs
• Medical directorships, contracts
and compensation
• Assessment of management and
professional services arrangements
• Non-profit healthcare
organizations (NPHO)
• Medicare and state licensure
CHOWs and CHOIs
• Regulatory Compliance and
Compliance Training
• Transactions & corporate
structuring
(972) 427-7685
rcheng@weaverjohnston.com
weaverjohnston.com/attorneys/richard-y-cheng/
18 | DALLAS MEDICAL JOURNAL • April 2022
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