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Medical marijuana: Hashing out the legal issues

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[Editor's note: This is part one of a two-part article. Read part two here: Is senior care going to pot?]

Medical marijuana is here to stay and will almost certainly enjoy increasing legal protections and growing acceptance in the medical/scientific communities. More than half of Americans live in jurisdictions where medical marijuana is legal in some form.

Twenty-five states and the District of Columbia have already legalized medical marijuana and more than a dozen other states have related pending legislation. However, while half of the country’s states have passed laws decriminalizing medical marijuana, it is still illegal under federal law. Does that matter? Yes, because federal law trumps state law. Moreover, every nursing home, hospice, home health agency and hospital that participates in the Medicare program must agree to follow all federal laws. So, what’s a provider to do?

According to a study published in the July 2016 issue of Health Affairs journal, the use of prescription drugs, including opioids, fell precipitously in states that legalized medical marijuana. The authors concluded that where medical marijuana replaced prescription medications, the savings to Medicare was $165.2 million in 2013 alone.[i]

People who live in states where medical marijuana is legal may take comfort that they will not likely be prosecuted as long as they comply with state law. This is especially important for nursing homes and hospices that want to allow residents/patients with end-stage cancer, amyotrophic lateral sclerosis (ALS), Parkinson’s Disease and specific other medical conditions to obtain and use medical marijuana.

As demonstrated below, the laws in the 25 states that have legalized medical marijuana are as diverse and inconsistent as the states themselves. It is the goal of this article to help healthcare providers and patients navigate the murky waters and thorny legal issues surrounding this important area.

The conflict is not just between federal and state law; there appears to be an inherent conflict in the relevant federal laws. On one hand, federal regulations mandate respecting residents’ rights, such as the right to have a resident’s needs accommodated. According to 42 C.F.R. § 483.15(e), “A resident has the right to reside and receive services in the facility with reasonable accommodation of individual needs and preferences, except when the health or safety of the individual or other residents would be endangered.” Another applicable federal regulation requires that “A facility must care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life.” (42 C.F.R. § 483.15). On the other hand, possession or use of medical marijuana is prohibited by federal law (21 U.S.C. § 841), placing nursing homes, hospices and other healthcare providers on the horns of a dilemma.

The evolving science regarding cannabis

Among the more than 60 active ingredients in marijuana are tetrahydrocannabinol (THC) and cannabidiol (CBD). The former has psychoactive properties while the latter does not.


Alan C. Horowitz

Partner at Arnall Golden Gregory

Alan C. Horowitz

Alan C. Horowitz, Esq., is a partner at...