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Florida Physicians Allowed to “Recommend” But Not “Prescribe” Medical Marijuana for Patients

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Under the Compassionate Medical Cannabis Act of 2014, Florida patients suffering from cancer or a physical medical condition that produces chronic symptoms of seizures or severe and persistent muscles spasms can qualify for the use of low-THC cannabis.

To read the full legislative language of the Florida compassionate-use act, click here.

Florida has been preparing physicians to qualify patients for the use of medical marijuana for nearly a year. So far, only 42 doctors have completed the process for the medical marijuana program, which consists of passing an eight-hour continuing education course and a subsequent examination.

However, after all other alternative treatment options have proven to be unsuccessful, even registered physicians will not be prescribing the drug low in the chemical tetrahydrocannabinol (THC) and high in cannabidiol (CBD) to patients qualified for its use. This is because prescribing marijuana in any form, even low-THC cannabis, is against federal law. Therefore, the way Florida law is written, qualified physicians may “recommend” or write a “recommendation” for medical marijuana for a patient.

Prescribing Medical Marijuana is a Violation of the Federal Controlled Substances Act.

In order to prescribe controlled substances, physicians must first register with the Drug Enforcement Agency (DEA). The DEA categorizes each controlled substance by potency, potential for abuse and accepted safety or medical use with schedules utilizing roman numerals.

Medical marijuana (even low-THC cannabis) is categorized as a Schedule I drug, meaning it currently has no accepted medical use in treatment in the United States, it has no accepted safety for use under medical supervision and it possesses a high potential for abuse. Schedule I drugs are illegal to prescribe, even by physicians registered with the DEA.

For more information on prescribing controlled substances from the American Nurses Association, click here.

How Will Qualified Patients Receive Medical Marijuana for Treatment?

While physicians are barred from prescribing low-THC cannabis, despite the compassionate-use act that became effective on January 1, 2015, physicians registered in the program will instead be providing qualified patients with”physician certifications.” A physician certification for a qualifying patient is basically a written document signed by a physician.

The document must profess the physician has examined the patient and currently maintains a treatment plan for the patient, and in the physician’s professional opinion such patient suffers from a “debilitating medical condition,” as specified by Florida law. Furthermore, the physician must assert that all other alternative treatment options have been unsuccessful in relieving symptoms associated with the patient’s illness.

Other conditions apply for qualifying patients and for physician ordering of medical marijuana. For more information on additional requirements, click here to refer to Section 381.986, Florida Statutes.

Will Physicians Face Federal Prosecution for Providing Qualified Patients with Medical Marijuana?

In a press release issued by the Department of Justice in October of 2009, Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that possess laws authorizing the use of medical marijuana. Attorney General Holder emphasized that the focus of federal resources should not be on the individuals acting in compliance with state laws. However, prosecution will continue for those individuals claiming to comply with state laws but acting against the terms, conditions and purposes of those laws.

To read the full press release by the Department of Justice dated October 19, 2009, click here.

In a memorandum issued by Deputy Attorney General David W. Ogden, dated October 19, 2009 and referenced by Attorney General Holder, the Deputy Attorney General states in pertinent part:

“The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime…The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority…As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

To read the full memorandum for more information on what constitutes “clear and unambiguous compliance,” click here.

To read a more recent memorandum of Deputy Attorney General James M. Cole, stressing the importance of strong regulatory and enforcement systems in states where medical marijuana is legal, click here.

Finally, to read the DEA’s Position Paper on Marijuana, click here.

Comments?

Are you signing up as a physician authorized to order medical marijuana for qualified patients in the state of Florida? If no, is it because you are concerned about possible federal prosecution?

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Department of Justice, Office of Public Affairs. “Attorney General Announces Formal Medical Marijuana Guidelines.” Press release. 19 Oct. 2009. Web. 28 Oct. 2015.

Powers, Scott. “Marijuana Program Draws 42 Doctors Statewide.” Health. Orlando Sentinel: 19 Aug. 2015. Web. 20 Oct. 2015.

Sherman, Amy and Gillin, Joshua. “PolitiFact Florida: Will Doctors Write Prescriptions for Medical Marijuana if You Have an Itchy Back?” PolitiFact Florida. Tampa Bay Times: 23 Feb. 2014. Web. 20 Oct. 2015.

Wright, Esq., Brian K. “The Regulatory Impact of Medical Marijuana on Health Care Providers and Other Stakeholders.” PowerPoint presentation. Web. 13 Oct. 2015.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

Keywords: Compassionate Medical Cannabis Act of 2014, Florida medical marijuana, low-THC cannabis in Florida, medical marijuana, medical marijuana lawyer, qualifying patients for medical marijuana, medical marijuana defense attorney, defense lawyer, health lawyer, health law attorney, physician certifications for medical marijuana, cannabis for treatment of debilitating medical condition, medical marijuana ordering physician, medical marijuana federal prosecution defense attorney, prescribing controlled substances, DEA defense lawyer, guidelines for federal prosecutors, compassionate-use in Florida, Drug Enforcement Agency physician registration, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2017 The Health Law Firm. All rights reserved.

By The Health Law Firm|2024-03-14T10:02:01-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: cannabis for treatment of debilitating medical condition, Compassionate Medical Cannabis Act of 2014, compassionate-use in Florida, DEA defense lawyer, defense lawyer, Drug Enforcement Agency physician registration, Florida medical marijuana, guidelines for federal prosecutors, health law attorney, health lawyer, low-THC cannabis in Florida, medical marijuana defense attorney, medical marijuana federal prosecution defense attorney, medical marijuana lawyer, medical marijuana ordering physician, physician certifications for medical marijuana, prescribing controlled substances, qualifying patients for medical marijuana, the health law firm|Comments Off

Federal Judge Challenges the Justice Department’s Interpretation of Federal Law Restricting Medical Marijuana Prosecutions

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

In a federal case involving a California-based medical marijuana dispensary and the United States, regarding a motion to dissolve a permanent injunction, a federal judge challenged the Department of Justice’s (DOJ) so-called “tortured” interpretation of the law. U.S. District Judge Charles Breyer pronounced that the DOJ’s interpretation is “at odds with fundamental notions of the rule of law.” Judge Breyer went so far as to say that the DOJ’s analysis of the plain language Amendment was “counterintuitive and opportunistic.”

At issue in this case is a law passed last year by Congress which purposes to restrain the Justice Department’s efforts to prevent the implementation and use of medical marijuana in states where it has been legalized. The applicable portion of the federal law in dispute is Section 538 of the 2015 Appropriations Act (otherwise known as the “Rohrabacher-Farr Amendment”). The Amendment states that the DOJ is barred from using federal funds to “prevent such States [where medical cannabis has been legalized] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

The federal court decision found that the DOJ incorrectly interpreted the federal law to mean that it cannot prosecute the state itself for implementing mandates authorizing the use of marijuana for medicinal purposes but that it could still prosecute individuals and businesses carrying out state mandates or operating within state law.

To read the order of the court regarding briefing and hearing in United States of America v. Marin Alliance for Medical Marijuana and Lynette Shaw, click here.

DOJ Issues “Cole Memo” to Clarify.

Former Deputy Attorney General James Cole wrote a memo to all U.S. attorneys stating that the DOJ would exercise prosecutorial discretion and not pursue marijuana cases in those states where it is legal relying upon:

“[an] expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.”

This has now come to be known as the “Cole memo.” Click here to read the Cole memo in its entirety.

Facts of the Federal Court Case.

Marin Alliance for Medical Marijuana (“Marin Alliance”) based in Fairfax, California, closed its doors in late 2011, folding under pressure from the federal government, even though it was operating legally according to California law. It was known as the state’s oldest marijuana dispensary. It first opened its doors in November 1996, when California legalized medical marijuana.

Marin Alliance was initially targeted by the DOJ due to its close proximity to Bolinas Park. According to federal law, medical marijuana dispensaries cannot be within 1,000 feet of a park or school, to deter the sale of cannabis to minors. Owner and director, Lynette Shaw, who is herself a recipient of medical marijuana, maintains she was always cognizant of and in compliance with state laws.

A Favorable Ruling for Medical Marijuana Advocates.

Although medical marijuana dispensaries and users had consistently lost in federal court despite the support of local law, the Amendment codified as section 538 of the federal funding bill last year was the persuading factor for a victory for Marin Alliance. U.S. District Judge Charles Breyer challenged the DOJ’s interpretation of Section 538 of the 2015 Appropriations Act, asserting that the DOJ’s stance “so tortured the plain meaning of the statute.” Judge Breyer further stated “it defies language and logic for the Government to argue that it does not ‘prevent’ California from ‘implementing’ its medical marijuana laws by shutting down these same heavily-regulated medical marijuana dispensaries.”

To read the full order of the court in this case, click here.

The Need for Congruence Between State and Federal Law.

Despite its growing acceptance as a medicinal treatment in 23 states across the nation (and four states legalizing its use for recreational purposes as well), marijuana has yet to be removed from the federal list of restricted drugs. The looming threat of prosecution by the DEA for using or dispensing medical marijuana, even within compliance of state law, is enough to deter many from seeking its benefits for patients.

Click here to read one of our previous blog posts regarding federal prosecution for medical marijuana treatment.

Comments?

Do you agree with the U.S. District Judge’s ruling? Why or why not?

Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.

To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.

Sources:

Adler, Jonathan H. “Court Rules Federal Government May Not Spend Money to Enforce Drug Laws Against Marijuana Dispensaries Legal Under State Law.” The Washington Post. 20 Oct. 2015. Web. 9 Nov. 2015.

Ingraham, Christopher. “Federal Court Tells the DEA to Stop Harassing Medical Marijuana Providers.” The Washington Post. 20 Oct. 2015. Web. 9 Nov. 2015.

Phelps, Timothy M. “Ruling Reins in Justice Department on Medical Pot.” Orlando Sentinel: A22. 8 Nov. 2015. Print. 9 Nov. 2015.

Schwartz, Carly. “Marin Alliance for Medical Marijuana, California’s Oldest Pot Club, Closes.” San Francisco. Huff Post: 22 Dec. 2011. Web. 9 Nov. 2015.

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By The Health Law Firm|2024-03-14T10:02:01-04:00May 15, 2018|Categories: marijuana law, Marijuana Law Blog, Medical Marijuana|Tags: 2015 Appropriations Act, cannabis for medicinal treatment, cannabis for treatment of debilitating medical condition, compassionate-use in Florida, DEA defense lawyer, defense lawyer, Drug Enforcement Agency physician registration, guidelines for federal prosecutors, health law attorney, health lawyer, medical marijuana compliance lawyer, medical marijuana defense attorney, medical marijuana dispensaries, medical marijuana federal prosecution defense attorney, medical marijuana lawyer, medical marijuana legalization, medical marijuana ordering physician, prescribing controlled substances, Rohrabacher-Farr Amendment, Section 538 of federal funding bill, the health law firm|Comments Off