Serious Medical Marijuana Conditions
Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”). Act 16 of 2016, Section 403 (a) – Conditions for issuance – allow a physician to certify medical necessity only if all of the following requirements are met:
(1) The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.
(2) The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.
(3) The patient is under the practitioner’s continuing care for the serious medical condition.
(4) In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.
The regulations define Serious medical condition as:
(ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
(iii) Amyotrophic lateral sclerosis.
(iv) Parkinson’s disease.
(v) Multiple sclerosis.
(vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
(viii) Inflammatory bowel disease.
(x) Huntington’s disease.
(xi) Crohn’s disease.
(xii) Post-traumatic stress disorder.
(xiii) Intractable seizures.
(xv) Sickle cell anemia.
(xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
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For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated. A Pennsylvania medical licensee (nurse, doctor, dentist, and all others) will have to suffer from a serious medical condition. A referring medical marijuana practitioner will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons. The practitioner will have to perform a full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient. Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.
An MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have, or are failing. Well, if the medical professional is disabled, they can not do their job. If they are under the influence of medical marijuana, the Boards think these licensees should probably not be permitted to practice their profession.
The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.” If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.
Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them incapable of safely practicing. This logical reasoning jump — using marijuana automatically renders one unsafe to practice — is found in other provisions of Pennsylvania law. Those include the Drug act and Pennsylvania’s DUI statute.
Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream. (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.) Pennsylvania is a per se violation state. This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.
It is not a hard legal argument to suggest that if you can not safely drive because you are under the influence of marijuana (any amount), the medical professional can not perform their medical duties because they are under the influence of marijuana. Here is where the confidentiality provisions of the Act are important. Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.
Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:
(1) Individual identifying information about patients and caregivers.
(2) Certifications issued by practitioners.
(3) Information on identification cards.
(4) Information provided by the Pennsylvania State Police under section 502(b).
(5) Information relating to the patient’s serious medical condition.
My concern is that these provisions, in conjunction with other Pennsylvania rules and regulations, will be employed against the medical professional who seeks and secures a medical marijuana card. Your doctor must provide this information to the Department of Health. If marijuana is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy. Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.
My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waiver? of intoxicated professionals. They are gravely concerned for the well being of the Commonwealth’s citizens. The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally using marijuana and they learn of it they will be ready. Any issue that brings the medical professional – under the influence of legal Pennsylvania medical marijuana – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.