Page 6 - Vocal Chords Summer 2017
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Medical Marijuana Law: Medical Use in Florida, Part 1 By Susan St. JohnAs you have probably heard, Governor Sco  signed Senate Bills 6A and 8A on June 23, 2017. What this means for prac  oners is an increased opportunity to help pa ents that might derive bene t from treatment with medical marijuana. However, with increased opportunity comes increased scru ny. Although these laws open up treatment op ons, prac  oners need to ensure they strictly abide by the statutes and rules to be implemented by the Department of Health (“Department”). The Department has already published no ce of the  rst conference call on Senate Bill 8A and emergency rule making authority, with the  rst conference call scheduled for Friday, July 14, 2017. Prac  oners should also keep in mind that marijuana is s ll a schedule 1 controlled substance under federal law, thus, insurance companies are not covering treatment with medical marijuana.MEDICAL MARIJUANA LAW: THE ACTSenate Bill 8A, Chapter 2017-232, Laws of Florida, is an act rela ng to the medical use of marijuana (the “Act”). The Act implements Sec on 29, Ar cle X of the Florida Cons tu on (Amendment 2 approved by voters November 8, 2016), which expanded medical marijuana use to pa ents with other condi ons besides a terminal illness with a prognosis of less than a year. The Act includes the addi on of several de ni ons to Sec on 381.986, Florida Statutes, including “quali ed pa ent,” “quali ed physician,” and “physician cer  ca on.” The Act adds 13 qualifying medical condi ons, and a pa ent must be diagnosed with at least one of the 13 condi ons to qualify to receive marijuana or a marijuana delivery device.DEFINITIONSNow, lets take a quick look at the three de ni ons enumerated in the previous paragraph.Physician cer  ca on means a quali ed physician’s authoriza on for a quali ed pa ent to receive marijuana and a marijuana delivery device from a medical marijuana treatment center.A quali ed pa ent is 1) a resident of Florida, 2) has been added to the medical marijuana use registry by a quali ed physician to received marijuana or a marijuana delivery device, and 3) who has a quali ed pa ent iden  ca on card.A quali ed physician under the Act is a “person who holds an ac ve, unrestricted license as an allopathic physician under Chapter 458 or as an osteopathic physician under Chapter 459, and is in compliance with educa on requirements set forth in the Act. Educa on requirements consist of a 2-hour course and subsequent examina on o ered by either the Florida Medical Associa on or Florida Osteopathic Medical Associa on, and encompasses the requirements of theAct and any rules adopted pursuant to the Act. Further, a quali ed physician may not have any direct or indirect economic interest in a medical marijuana treat- ment center or tes ng laboratory, including as an employee.There are at least 8 things a quali ed physician must due in order to issue a physician cer  ca on to a quali ed pa ent. This is where the rubber starts to meet the road with medical marijuana law. A physician must be diligent in examining and explaining to a poten al quali ed pa ent the diagnoses that are appropriate for medical marijuana use and poten al side e ects from the use of medical marijuana. The use of medical marijuana must outweigh the poten al risk associated with treatment using medical marijuana. For pa ents younger than 18 years of age, a second physician must concur that treatment with medical marijuana is appropri- ate. In addi on to examining the pa ent and explaining risks and bene ts of use, the physician will need to check the pa ent’s controlled drug prescrip on histo- ry and review the medical marijuana registry to ensure that the pa ent does not have an ac ve physician cer  ca on already in place. The physician will need to register as the issuer of the physician cer  ca on on the medical marijuana use registry, and include all informa on regarding the pa ent in the registry, and  mely update the registry for any changes to the physician cer  ca on. If the pa ent should no longer bene t from medical marijuana and its use is discon nued, the physician must deac vate the registra on of the quali ed pa ent and pa ent’s caregiver. And of course, the physician must obtain voluntary and informed wri en consent from the pa ent regarding the use of medical marijuana each  me the quali ed physician issues a physician cer  ca on for the pa ent, with such wri en consent being maintained in the pa ent’s medical record. The Department of Health will develop a standardized informed consent form that must be used by quali ed physicians when issuing physician cer  ca ons.Addi onally, the quali ed physician must submit the following documenta on to the applicable board if he or she issues a physician cer  ca on: 1) documenta on suppor ng the physician’s opinion that the pa ent’s medical condi on falls within the scope of condi ons that are enumerated in the Act; 2) documenta on that establishes the e cacy of treatment with medical marijuana for the pa ent’s condi on; 3) documenta on that the bene ts of medical marijuana outweigh the poten al risks for the pa ent; and 4) any other documenta on required by board rule (rules are yet to be developed and promulgated).Generally, a physician can issue a physician cer  ca on for not more than three 70-day (210 days in total) supply limits of medical marijuana; however, excep ons to the daily dose amount can be requested. The excep on requests require descrip ons of the pa ent’s medical condi on, current use and ine ec veness, how an increase in daily dose would bene t the pa ent, and the minimum daily does that would be su cient for the par cular pa ent.Before issuing another physician cer  ca on, the physician must meet with a quali ed pa ent no less than every 30 weeks and determine if the pa ent s ll meets quali ca ons, whether there have been any adverse reac ons from use, whether the pa ents use of other controlled substances has been reduced, and then sub- mit a report of  ndings to the Department of Health.Because some pa ents may already being using low THC cannabis or medical cannabis under former Sec on 381.986, Florida Statues, registra on with the compassionate use registry before the e ec ve date of this Act, will be deemed a physician cer  ca on and all pa ents possessing such orders are deemed quali-  ed pa ents un l the Department begins issuing medical marijuana use registry iden  ca on cards. Addi onally, the Department will monitor physician registra-  on with the medical marijuana use registry and issuance of physician cer  ca ons to ensure prac  oners are not facilita ng unlawful diversion or misuse of mari- juana or a marijuana delivery device. Both the Board of Medicine and the Board of Osteopathic Medicine will create review panels to review all physician cer  ca-  ons submi ed to the medical marijuana use registry.POTENTIAL PITFALLS FOR PROVIDERSAnd with all opportunity, there are pi alls to be aware of, including criminal penal es. A quali ed physician could  nd himself or herself having to defend against a  rst degree misdemeanor if that physician issues a physician cer  ca on for medical marijuana use to a pa ent without a reasonable belief that the pa ent is su ering from a qualifying medical condi on. Also, a physician is subject to disciplinary ac on pursuant to Sec on 456.072(1)(n), Florida Statutes, if he or she re- ceives compensa on from a medical marijuana treatment center related to the issuance of a physician cer  ca on. A physician may also be subject to disciplinary ac on under Sec on 456.072(2), Florida Statues, if he or she issues a physician cer  ca on in a manner not in compliance with the Act.As the Department develops rules pursuant to the Act, it will be vitally important that quali ed physicians keep abreast of developing or newly implemented rules to ensure compliance with the Act to allow the physician to develop a healthy, compliant prac ce related to prescribing medical marijuana.6

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