Pennsylvania’s Medical Marijuana Act (“MMA”) details in excruciating detail the prescribing limits placed on physicians. New Jersey’s MMA differs from Pennsylvania at the outset by not limiting prescribers to physicians. Any medical professional with DEA prescribing authority may dispense Medical Marijuana.  This blog discusses NJ’s proscriptions against all NJ health care professionals who choose to dispense marijuana and patient card holders.

Importantly, the first significant rule is that the list of list of the persons to whom the State issues registry identification cards and their information contained in any application form, or accompanying or supporting document shall be confidential, and shall not be considered a public record and shall not be disclosed except to confirm the legality of their pot possession. Applying for a registration card does not waive physician-patient confidentiality.

As for dispensing health care professionals, a health care practitioner shall not be required to be listed publicly in any medical cannabis practitioner registry as a condition of authorizing patients for the medical use of cannabis.  This is a drastic difference from Pennsylvania’s enacted law.

When authorizing a qualifying minor patient who is a minor for the medical use of cannabis, if the treating health care practitioner is not a pediatric specialist, the treating health care practitioner shall, prior to authorizing the patient for the medical use of cannabis, obtain written confirmation from a health care practitioner who is a pediatric specialist establishing, in that health care practitioner’s professional opinion, and following an examination of the minor patient or review of the minor patient’s medical record, that the minor patient is likely to receive therapeutic or palliative benefits from the medical use of cannabis to treat or alleviate symptoms associated with the patient’s qualifying medical condition. If the treating health care practitioner is a pediatric specialist, no additional written confirmation from any other health care practitioner shall be required as a condition of authorizing the patient for the medical use of cannabis.

No authorization for the medical use of cannabis may be issued by a health care practitioner to the practitioner’s own self or to a member of the practitioner’s immediate family.

These are important but very liberal provisions. Any health care professional may write a prescription for medical marijuana. Confirmation of a medical condition that is LIKELY to receive therapeutic or palliative benefits for marijuana is the medical burden. Pennsylvania’s comparative provision is significantly more stringent. Similar to Pennsyvlania, health care professional can not prescribe pot to themselves or their family.

Ownership of a Medical Marijuana dispensary is a significant legal issue. In Pennsylvania, physicians can not have any owership interest in any verticle aspect of the marijuana manufacturing, production, or supply chain. In NJ, this is extremely different.

Except as provided in subsection b. of this section, no health care practitioner who has authorized a patient for the medical use of cannabis pursuant to within the past 90 days, and no member of such health care practitioner’s immediate family, shall be an interest holder in, or receive any form of direct or indirect compensation from, any medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant.

If the health care professional does not prescribe marijuana, they CAN have an ownership interest.

Nothing in subsection a. of this section shall be construed to prevent a health care practitioner from serving on the governing board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or on the medical advisory board of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant established pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), or from receiving a reasonable stipend for such service, provided that:

(1) the stipend does not exceed the stipend paid to any other member of the governing board or medical advisory board for serving on the board; and

(2) the amount of the stipend is not based on patient volumes at any medical cannabis dispensary or clinical registrant or on the number of authorizations for the medical use of cannabis issued by the health care practitioner pursuant to P.L.2009, c.307 (C.24:6I-1 et al.).

c. A health care practitioner, or an immediate family member of a health care practitioner, who applies to be an owner, director, officer, or employee of a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, or who otherwise seeks to be an interest holder in, or receive any form of direct or indirect compensation from, a medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, or clinical registrant, shall certify that the health care practitioner has not authorized a patient for the medical use of cannabis pursuant to P.L.2009, c.307 (C.24:6I-1 et al.) within the 90 days immediately preceding the date of the application.

In almost every jurisdiction, use and possession of medical marijuana can and is a basis from professional disciplinary action. Showing up high to work, for any reason, or being charged with driving under the influence of pot triggers professional license disciplinary actions. Under the proposed legislation, the new law tries to change this!

b. A qualifying patient, designated caregiver, institutional caregiver, health care facility, medical cannabis cultivator, medical cannabis manufacturer, medical cannabis dispensary, health care practitioner, academic medical center, clinical registrant, testing laboratory, or any other person acting in accordance with the provisions of the new law shall not be subject to any civil or administrative penalty, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a professional licensing board, related to the medical use of cannabis as authorized under the bills (pending before the Legislature as this bill).

c. Possession of, or application for, a registry identification card shall not alone constitute probable cause to search the person or the property of the person possessing or applying for the registry identification card, or otherwise subject the person or the person’s property to inspection by any governmental agency.

d. The provisions of section 2 of P.L.1939, c.248 (C.26:2-82), relating to destruction of cannabis determined to exist by the commission, shall not apply if a qualifying patient, designated caregiver, or institutional caregiver has in his possession a registry identification card and no more than the maximum amount of usable cannabis that may be obtained in accordance with section 10 of P.L.2009, c.307 (C.24:6I- 10).

e. No person shall be subject to arrest or prosecution for constructive possession, conspiracy, or any other offense for simply being in the presence or vicinity of the medical use of cannabis as authorized under the bills pending before the Legislature as this bill.

Shall not alone constitute probable cause. These are the operative words. Simply using medical marijuana for a proper therapeutic or palliative need will not trigger a disciplinary investigation. Showing up at work smelling of pot and attempting to perform as a medical professional will cause problems. Work place reports, medical mistakes, criminal charges of driving while high (in any jurisdiction) are additional facts New Jersey’s licensing board will and can consider. They can not ignore “additional facts”. That is why the statute says “shall not alone constitute probable cause.”

Call me to discuss you medical marijuana need or use.