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Why Physicians Should Seek Legal Counsel Before Recommending Medical Marijuana

Published: Feb 09, 2017 by John Izzo

The Medical Marijuana Advisory Committee met on Friday, January 27, 2017. The Committee may develop and submit to the Ohio Department of Commerce, State of Ohio Board of Pharmacy, and the State Medical Board of Ohio any recommendations related to the medical marijuana control program and the implementation and enforcement of such.

The Medical Board presented an update on the proposed rules for physicians. The update was presented by A.J. Groeber, the Medical Board’s Executive Director, and Kim Anderson, its chief legal counsel. Ms. Anderson summarized over 100 comments the Medical Board received.

Medical marijuana is considered an illegal drug by the Federal Government. Therefore, physicians cannot prescribe medical marijuana under their D.E.A. licenses. Doing so would certainly put the physician at risk of losing their D.E.A. license.

Ms. Anderson told the Committee that the Medical Board recommends a physician consult with an attorney prior to recommending medical marijuana to a patient. Her advice stems from a 2002 federal court case out of California, where the issue was whether the federal government could investigate doctors or initiate proceedings against doctors who recommended the use of marijuana. In the end, the Court determined there are many legitimate responses to a recommendation of medical marijuana by a doctor to a patient. As such, the federal court decided that the federal government was not allowed to pursue physicians who recommend medical marijuana to their patients.

Ohio law allows physicians to recommend medical marijuana to patients under certain circumstances. The Medical Board is proposing rules to determine which M.D.’s and D.O.’s can recommend medical marijuana and how to determine what diagnosis is needed to receive medical marijuana. No other licensee in Ohio (other than M.D.’s and D.O.’s) may recommend medical marijuana to a patient, even if the other licensee has a D.E.A. registration.

Prior to recommending medical marijuana to a registered patient, a physician must first obtain a certificate to recommend from the Medical Board. At this point, a physician must meet certain requirements such as attending medical marijuana continuing medical education courses. The Medical Board said they can process an application in two days. However, a physician will not receive a certificate to recommend until it is approved by the full Medical Board, which can lead to a 30-day wait.

A recent Medical Board survey indicated as many as 30 percent of their licensees may recommend medical marijuana to their patients. In order to avoid problems, those M.D.s and D.O.s who do so will need to carefully choose their words when speaking with their patients about medical marijuana.

If you have any questions about the medical marijuana control program, you should consider contacting an attorney at Graff & McGovern. John Izzo of Graff & McGovern can be reached at 614-228-5800, extension 5.