The Hazy Rollout of Ohio's Medical Marijuana Control Program (MMCP

The Hazy Rollout of Ohio's Medical Marijuana Control Program (MMCP

MY BENESCH MY TEAM Health Care & Life Sciences CLIENT BULLETIN October 2016 The Hazy Rollout of Ohio’s Medical Marijuana Control Program (MMCP) By Jeff McCourt and Dan O’Brien The ultimate functionality of the MMCP several of the largest law firms in the state – both in terms of the opportunity for were forced to suspend their activities in seriously ill patients to access medicine, the space while the Supreme Court rushed and the opportunity for market participants through an amendment to the ethics rules. to create a sustainable program to serve Such an amendment was adopted on those patients – will be determined by the September 20th, allowing doctors, patients extensive rulemaking and licensure process and cannabis businesses to obtain legal to be carried out by the Department of representation in Ohio. Jeff McCourt Dan O’Brien Commerce, the state Pharmacy Board, and Adding further confusion to the mix, the the state Medical Board over the next two When Ohio House Bill 523 (HB 523) became Ohio Municipal League has launched years. Several early indicators, however, effective on September 8, 2016, Ohio joined a statewide effort to educate local have begun to cast doubt on the program’s the company of 25 other states, the District governments about HB 523. Given the lack viability as written. This article recaps of Columbia, and several U.S. territories of clarity on how the state regulations will several recent developments in the MMCP that have legalized cannabis for medicinal operate and where cannabis operations will and addresses specifically the Medical purposes. Modeled after highly restrictive be located throughout the state, dozens Board’s recent guidance on the “affirmative regimes adopted by state legislatures of local governments have chosen to defense” provision of HB 523, the only part in Illinois, Maryland, and New York, the preemptively adopt bans or moratoriums on of the law that is currently operational. Medical Marijuana Control Program (MMCP) all medical cannabis businesses within their envisioned by HB 523 has the potential to I. EARLY ACTIONS HAMPER jurisdictions. While most of the jurisdictions be one of the most complex and heavily IMPLEMENTATION OF THE MMCP that have adopted such measures are small regulated medical cannabis programs The Ohio Supreme Court’s board of cities in rural areas, a growing number in the country. HB 523 relies on a tightly professional conduct, which is responsible of larger cities with significant potential controlled ‘Schedule II’ pharmaceutical- for regulating Ohio lawyers, tossed a patient populations, such as Lakewood and style regulatory framework, but the Ohio fireball into the lap of the Supreme Court Cleveland, have adopted or are considering legislature left some room for flexibility in in August by releasing a narrow reading moratoriums as well.1 The rationale often the MMCP by punting to the rulemaking of the ethics rules applicable to Ohio cited by local officials when imposing process several of the toughest issues it lawyers when advising clients involved in these measures (essentially, that if cities faced, such as determining the number of the cannabis industry. Just weeks before don’t act now, their Main Streets could licenses available under the MMCP, the cost the effectiveness of HB 523, the board be populated with unregulated cannabis of licenses, the geographical distribution of professional conduct told Ohio lawyers businesses that would be ‘grandfathered’ of medical cannabis businesses, and that, among other things, it was unethical out of later-adopted zoning restrictions) the hurdles doctors will face in order to to assist clients in setting up medical are inconsistent with how the MMCP recommend medical cannabis to patients cannabis businesses or to represent them and zoning laws actually function. An with qualifying medical conditions. in the rulemaking process. As a result, unintended consequence of these www.beneschlaw.com October 2016 Health Care & Life Sciences CLIENT BULLETIN measures is that cities with moratoriums Medical Board added that the Medical attempted to create an alternative path for on the books could be passed over entirely Board would “review a medical marijuana qualifying patients to obtain cannabis prior by businesses seeking to obtain licenses related complaint as they would any other... to the opening of dispensaries in Ohio. for significant cultivation and processing [and] would consider whether someone According to Section 6(B) of HB 523, if facilities, which could easily run into the violated state law, including the immunity a patient is arrested and charged with tens of millions of dollars and thus will provision.”4 Another prominent backer of possession or use of cannabis in Ohio and require certainty as to the viability of site HB 523, Senator Kenny Yuko (D-Richmond can establish that she or he (1) received a selection by such businesses early on in Heights), issued a press release stating written recommendation from a licensed the planning process. that “the affirmative defense section spells physician6 and (2) possessed and used out everything a physician would need to Most recently, on September 24th, the state cannabis only in the forms and by the do to provide patients with this limited, Medical Board, which is responsible for methods permitted under HB 523 (namely, short-term protection without having to wait regulating Ohio doctors, dealt a significant did not smoke it), the patient should be for the agencies. It simply wouldn’t make blow to patients hoping to avail themselves acquitted of the charges.7 This sounds sense to read it any other way.”5 of the protections provided by HB 523 prior nice in theory, but two very significant to the opening of dispensaries two years The affirmative defense provision and the practical hurdles have thus far rendered the from now.2 While couched in the context of varying interpretations of it by key actors affirmative defense nearly useless to Ohio guidance to doctors, the carefully worded has created quite a hairball for Ohio doctors patients: (1) the inability to find a doctor interpretation of Ohio doctors’ ability to and their patients to untangle with their willing to provide a written recommendation recommend medical cannabis during the lawyers. In an effort to facilitate discourse for cannabis; and (2) the potentially severe “affirmative defense” period served only to among the legal and medical professions legal consequences for obtaining cannabis highlight the gray area created by HB 523. regarding the affirmative defense provision on the black market or smuggling it into (and by no means to provide legal advice Ohio from other state-sanctioned markets. In its guidance, the Medical Board to anyone), the rest of this article will cover instructed physicians that they cannot some of the relevant considerations that A. The Doctor Recommendation Process issue a “state of Ohio approved written doctors and their employers may want to The most significant obstacle to a patient’s recommendation” to use medical cannabis evaluate with counsel in order to minimize ability to establish the affirmative defense until the Medical Board adopts rules for risks when recommending cannabis to is the requirement to obtain a written doing so, which could take up to a year. patients during the affirmative-defense recommendation from a physician licensed In the meantime, physicians who receive period. While the recommendation and use in Ohio. For the written recommendation requests from patients for medical cannabis of medical cannabis does pose at least to qualify under the affirmative defense, were encouraged to “consult with their some theoretical legal risk to all parties the physician must certify all of the five private legal counsel and/or employer involved in the process, it is reasonably following criteria: for interpretation of the legislation.” In clear that Ohio physicians willing to face response to the Medical Board’s guidance, (1) that a “bona fide physician-patient those risks do currently have the ability representatives from the Ohio State relationship”8 exists between the to recommend cannabis to patients with Medical Association (OSMA) reiterated the physician and patient; qualifying medical conditions. association’s previous stance that doctors (2) that the patient has been diagnosed should not recommend cannabis until the II. UNDERSTANDING THE with a qualifying medical condition;9 Medical Board adopts its formal rules.3 “AFFIRMATIVE DEFENSE” (3) that the physician or physician delegate A bit of background on the “affirmative The OSMA’s interpretation of the Medical has requested from the Ohio Automated defense” provision of HB 523 is helpful Board’s guidance, in turn, quickly drew Rx Reporting System (OARRS) a report for understanding the Medical Board’s widespread news coverage. One of the lead of information related to the patient reluctance to provide guidance on the state legislators behind HB 523, Senator that covers at least the twelve months topic. Recognizing that it would take up to Dave Burke (R-Marrysville) responded immediately preceding the date of the two years to fully implement the MMCP, in interviews that “willing physicians are report; in the free and clear” to recommend and hearing incredibly heart-wrenching cannabis during the affirmative-defense and compelling testimony from seriously (4) that the physician has informed the period, and representatives from the ill constituents in urgent need of access to patient or the patient’s parent or legal sources of cannabis, the legislature guardian of the risks and benefits of www.beneschlaw.com October 2016 Health Care & Life Sciences CLIENT BULLETIN medical marijuana as it pertains to the risks posed to doctors in this setting are: to recommending medical cannabis to patient’s qualifying medical condition loss of medical license, exposure to civil patients. Of course, doctors who are not and medical history; and and criminal liability, and loss of their self-employed should also check with their DEA registration to prescribe controlled employer regarding relevant policies and (5) that the physician has informed the substances.

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