Mass. Hospitals Weigh Medical Marijuana Liability Risk

As Massachusetts lays the groundwork for medical marijuana, new clashes between the state law and a continuing federal ban on marijuana use are emerging. Hospitals, hospice care organizations and nursing homes are weighing the balance of serving their patients and protecting billions of dollars in federal funding.

(“Caveman Chuck” Coker/flickr)

(“Caveman Chuck” Coker/flickr)

Here’s the dilemma: Towards the end of long forms that authorize federal payments to hospitals, an executive has to certify that yes, the hospital is in compliance with federal law. But that statement would not be true if patients at the hospital are using marijuana for medical purposes and a doctor at that hospital is helping them.

“It’s really challenging for the practitioners,” says Larry Vernaglia, an attorney at Foley & Lardner who wrote a memo laying out the issues for the Massachusetts Hospital Association. If doctors say to themselves “‘even though we have this new pathway under state law, we’re not going to help our patients for fear of our liability,’ I think that’s a terrible position to be in,” Vernaglia says.

And hospitals face significant possible risks. Tim Gens, executive vice president at the Massachusetts Hospital Association, says violating federal law could get hospitals in trouble with the IRS over their nonprofit status. Grants through the National Institutes of Health and the Department of Defense fund most of the research at Boston hospitals. And there’s the billions of dollars in payments hospitals receive through Medicare and Medicaid.

“More than half of the patients admitted to hospitals are paid for by Medicare and Medicaid,” Gens says. “And hospitals certify that they’re in compliance with all applicable federal and state laws so their funding of those programs could come in question.”

Hospitals contacted for this story say they are still reviewing their options. Some doctors, and by extension, hospitals, say they may have a legal loophole.

Under state law, doctors sign a certificate for medical marijuana. Patients take that certificate to the Department of Public Health, where the patient registers as a medical marijuana user. Doctors do not actually prescribe the drug.

But the distinction between “certificate” and “prescription” does not guarantee immunity.

“It’s not without risk that a third party would conclude that a certification is the same thing as a prescription and some courts have, I believe, taken that perspective,” Vernaglia says.

The big question is whether federal prosecutors will come after doctors, hospitals, nursing homes or hospice agencies that help patients acquire or use marijuana. A U.S. Department of Justice update last August said the federal government has, and will continue to, let state and local authorities handles investigations involving marijuana.

The American Hospital Association is not tracking this issue. We could not find any cases in which federal funding has been jeopardized by patients or doctors who use or prescribe marijuana. But some attorneys are wary.

“It’s difficult to advise a client that you are absolutely immune from federal prosecution,” says Jed Nosal, an attorney at Brown Rudnick. Nosal, who focuses on regulatory litigation and compliance, is also cautious about keeping himself out of any chain of events that leads to marijuana. He’ll advise hospitals about how to comply with the state marijuana law, but will not offer any guidance about how they might allow marijuana use without violating federal contracts.

“Under no circumstances can I be engaged in order to help anyone facilitate breaking that law,” Nosal says.

For now, some hospitals, community health centers, nursing homes and hospice agencies are trying to come up with internal policies for physicians and other health care workers. The Massachusetts Hospital Association is not telling its members what to do.

“Although unbelievably challenging and difficult, it’s also very clear,” Gens says. “Unfortunately what’s clear is that there’s confusion.”

Pressure on Congress to end this confusion is growing as more states approve marijuana for medical purposes.

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  • Cravn_it

    A nation that has Law`s that do not reflect the majority of the people is an unjust law and should be repealed. There are numerous studies showing Medicinal benefits for using Cannabis and these are indisputable and well documented. Patients deserve compassion and quality of life is paramount, living in purgatory negatively affects all patients and caregivers. Prohibition has caused stigma and misconceptions about the use of the Cannabis plant which are unwarranted. Cannabis should be rescheduled by the Federal Government as they own the patent on Cannabis for the prevention of damage to brain cells. Some day the compounds in Cannabis will be well known for their beneficial medicinal value and yet to be discovered uses through more research, but for many people it will be too late until the Law is changed.

  • medcannabis1

    This position is simply smoke and mirrors by the closet prohibitionists within the medical community.. The government is not coming for the doctors who are supportive of their patients using the least toxic method of pain management and wellness as it is simply an HERB!
    To play politics with peoples suffering is criminal in itself and certainly not worthy of a physician or their administrators….
    Cannabis use is neither a crime or a sin..stop treating the Cannabis Civilization as if we are children…

    • Robert Miles

      “Closet prohibitionists?” Really? Closet prohibitionists? Careful aim is always better than spray ‘n’ pray.

  • paladin

    right on duncan20903, it’s the lawyers scaring hospital/nursing home adminstrators
    remember what shakespear said to do with lawyers….

    • Duncan20903

      The problem with that is, ”The first thing we do, let’s kill all the lawyers,” was stated by Dick the Butcher in ”Henry VI,” Part II, act IV, Scene II, Line 73. Dick the Butcher was a follower of the rebel Jack Cade, who thought that
      if he disturbed law and order, he could become king. Shakespeare meant
      it as a compliment to attorneys and judges who instill justice in society.

      Without lawyer the condition of getting needed medicine to the sick would be severely limited. So you’ll have to excuse me from participating in that particular bloodlust. I’d encourage you to rethink your opinion too. Maybe if you start with a basis that every day half the lawyers are wrong which means the other half are right.

      • kevin_hunt

        Lawyers managed to restore the right for doctors to recommend marijuana (Conant v. Walters) and for us to eat hemp foods (HIA v. DEA). You are right that they are not all bad!

        • Martha Bebinger

          Kevin – here’s another case a lawyer sent me that might be of use in thinking about whether courts equate certificates with prescriptions:

          Pearson v. McCaffrey, 139 F. Supp. 2d 113, 124 (D.D.C. April 19, 2001) (“a physician who recommends marijuana in a state that recognizes that such an act facilitates the ability of a patient to receive marijuana is essentially writing a prescription.”
          The Court went on to conclude that the act of essentially writing a prescription for a Schedule I controlled substance would constitute grounds for the DEA to take administrative action, including revoking the offending physician’s prescription license and excluding the physician from participating in the Medicare and Medicaid reimbursement programs. “Even though state law may allow for the
          prescription or recommendation of medicinal marijuana within its borders, to do so is still a violation of federal law under the CSA.”)

          • kevin_hunt

            Interesting case. Thanks.

          • Harold Altvater

            Martha:

            A few points from a doctor that does evaluations in MA.

            If an evaluation or a certification = a prescription. I would like to see a single instance of any pharmacy issuing controlled substances for certificates written by Doctors. Just one if it can be found.

            In MA the certificate indicates the patient has a medical condition that meets state law and then allows patients to get a Card from the State which says they can then use for obtaining medication – it is not Doctors or Patients fault that Certificates are evidence of legality currently – DPH has not began to issue cards at this point as required by state law.

            Finally holding a physician who did an evaluation on a patient as responsible for patients who choose to break federal law is on par with holding physicians who do evaluations on Truck Drivers for the State responsible when these drives are then involved in breaking the law in one manner, or another.

  • Duncan20903

    Can someone tell me how the engineers at MIT are coming along with the re-invention of the wheel?

    For crying out loud, why the heck are Massachusetts medical authorities acting as if Massachusetts is the first State with a medicinal cannabis patient protection laws? You people are acting like this issue hasn’t been in front of the SCOTUS. But it has been, in Conant v Walters, (9th Cir 2002) 309 F.3d 629, cert denied Oct. 14, 2003)

    Let’s see, California voters approved the Compassionate Use Act (CUA) on Election Day 1996. If I get out my calculator and crunch the numbers it tells me that the CUA has been in place for SEVENTEEN years, or 1.7 DECADES. If I get out all my law books and Federal Constitutions and other reference materials I find that California is subjected to the very same Federal laws as Massachusetts.

    It really isn’t all that hard to figure these things out. There isn’t a hospital in any State which allows medicinal cannabis or facilitates. That controversy has been settled, to the detriment of the sick and dying. The only place in the world where whole plant cannabinoid medicine is treated like an actual medicine, and it’s in Israel. But then the only thing that Israeli authorities needed to recognize cannabis as a medicine is proof of medicinal utility. The Israelis think that it’s abhorrent, cruel and inhuman to force sick people to suffer any more than is necessary. But then their moral compass hasn’t been demagnetized by a pack of bald faced lies, half truths, and irrational fear expressed using hysterical rhetoric.

    Physicians have a First Amendment right to discuss medical marijuana with their patients, but not to help them obtain cannabis for medical use. If the Feds could cashier doctors for recommending medicinal cannabis you would be able to find some examples in California. The last estimate that I heard was that there are a little over a million Californians claiming the protection of the CUA. I think that makes it safe to presume that there’s well over 10,000 doctors that have recommended whole plant cannabinoid medicine and are still practicing medicine.

    Do Massachusetts medical authorities know how to do a search with Google? How about Bing? Couldn’t one of these people give Lester Grinspoon a call and find out what he thinks? I’m not sure if he’s still working every day at Harvard but I’ll bet that they still know his contact information.

    • Martha Bebinger

      Hey Duncan – have you seen a comprehensive review of nursing home, hospice or community health center policies in states where marijuana is legal for medical purposes?

      • Duncan20903

        No. The Feds probably have their tentacles into that too. Nothing more than good old fashioned money which gets taken away if the recipient doesn’t do what they want. It’s the very same reason that the police have become so gung ho about this issue because they’re paid to enforce this law. All States have civil seizure of assets but the more ethical Legislatures put the money into the general fund. A couple of the better ones earmark the money for education or other societal benefits. In those places Law Enforcement can transfer the civil case to the Feds who kick back 80% to those police agencies.

        If a health care provider has a dispensary then they’re dependent on the DEA license. Both my parents passed away in a nursing home and their prescription needs were taken care of by the in house pharmacy.

        If you’re still curious the The Wo/Men’s Alliance for Medical Marijuana in Santa Cruz is where I’d start. Not your typical California collective, their members are all terminal.

    • scotterlibby

      Don?

      • Duncan20903

        You know, while it isn’t particularly common of a name there’s more than a few people in the U.S. that have the name Duncan. Most of us use it for their familiar rather than family name, and that does include me.

  • fun bobby

    “It’s not without risk that a third party would conclude that a certification is the same thing as a prescription and some courts have, I believe, taken that perspective,” Vernaglia says.

    Citation please.

    We could not find any cases in which federal funding has been jeopardized by patients or doctors who use or prescribe marijuana. But some attorneys are wary.
    this sounds like some lawyers trying to make a quick buck of some rich hospitals or doctors. they have had medical cannabis in California for almost 20 years and the ky is intact and the doctors are not in prison. One would think lawyers would love calling it a recommendation and not a prescription

    • Duncan20903

      Your claims are all true bobby, but UCSF Medical Center gave Angel Raich the boot in March 2012 using the very lame excuse that vaporizing cannabis releases particles into the air. Sure, 1 particle per quadrillion liters maybe. But there’s a very good reason why the hospital’s administrative staff wouldn’t cite Federal law. That’s because of the California State Constitution, Article 3, Section 3.5 which very plainly forbids agents of the State of California from choosing Federal law over State law.

      It’s also true that Dr. Donald I. Abrams is a cancer and integrative medicine specialist at the UCSF Osher Center. Seriously, you’re not going to find a hospital in California that doesn’t value money over human suffering when it comes to this issue.

      http://www.nbcbayarea.com/news/local/Dying-Patient-Kicked-Out-of-Hospital-for-Using-Medical-Marijuana-142425965.html

      • fun bobby

        consider the progress that has been made if the biggest issue now is whether or not you can vaporize in your hospital room. did he ask them or tell them he was doing that?

        • paladin

          don’t need to smoke joints to obtain the benefits. chocolate cookies and hard candy works just as well. try them, you’ll agree

          • fun bobby

            notice I used the term vaporize. good point though, why did he not just eat a brownie instead of upsetting the hospital staff?

        • Duncan20903

          I don’t get who he is that told what. I did provide a link in my post above.

          If the he is Dr. Abrams then the answer is that he wasn’t there. The only reason that I mentioned his employment at UCSF is because he’s been arguably the most prestigious doctor backing and arguing in favor of the medicinal utility of whole plant cannabis. If you hadn’t heard of him before you should look up his C.V. Had he been present I find it very hard to believe that we’d even be having this conversation because I can’t think of any plausible argument that ends with her eviction if he had any say in the matter.

          Here’s a peer reviewed study called “Vaporization as a ‘Smokeless’ Cannabis Delivery System” with Dr. Abrams as lead investigator and in an example of morbid irony was conducted at UCSF in 2007:

          http://www.cmcr.ucsd.edu/index.php?option=com_content&view=article&id=149:vaporization-as-a-qsmokelessq-cannabis-delivery-system&catid=41:research-studies&Itemid=135

          Regardless of how you slice it the point was that if a patient of Ms. Raich’s status can be shown the door at arguably the most cannabinoid friendly hospital in California if not the United States I think it’s a substantial piece of evidence supporting the assertion that the Feds have the hospitals buttoned down and we won’t be seeing any medicinal cannabis provided to patients in Massachusetts hospitals. Just like we’re not going to see licensed pharmacies filling prescriptions written by licensed doctors and for no other reason than the Feds intransigent cruelty in refusing to allow whole plant cannabinoid medicine.

          On the other hand the Feds don’t have the doctors buttoned down. They can’t stop them from sharing their opinions thanks to the 1st Amendments. In the long run the Feds can’t win this one because their intransigent position has no backing as a matter of fact in the practice of human medicine. Most people aren’t going to stand aside and allow cruel and inhuman bureaucratic blockheads to continue to force sick people to suffer more than is absolutely out of our control.

          • fun bobby

            it does seem as if the tables are turning. its a flaw of western medicine in general that it overlooks and excludes natural medicines from hospitals. it biblical prophecy is to be believed the healing of the nations should come about any day now