The Medical Use of Marijuana and Legal Issues Associated with Physician Certification of Medical Marijuana Use by Qualifying Patients

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By Jesse Alderman, Esq.

This is the second article in a two-part series on the medical use of marijuana in Massachusetts.  The first article addressed some of the issues associated with the opening of a registered marijuana dispensary (RMD).  This article addresses issues associated with physician and clinician certification of the medical use of marijuana for patients.

Background

The Massachusetts voters passed a ballot initiative in 2012 authorizing physician certification, patient use and commercial sale of medical marijuana consistent with a detailed regulatory framework for patients, physicians, caregivers and medical marijuana purveyors.[i]  Chapter 369 of the Acts of 2012 – An Act for the Humanitarian Medical Use of Marijuana (the “Act”) – authorized the Department of Public Health (DPH) to license up to 35 RMDs in the Commonwealth and to promulgate regulations to implement the medical marijuana program.[ii]

The registration of RMDs has been slow and not without continuing controversy, but the opening of RMDs in Massachusetts appears now to be nearing fruition.[iii]  In November 2013, after a multi-part application process – and numerous media reports questioning the rigor of DPH’s vetting of applications and the political connections of certain applicants – DPH provisionally selected 20 applicants (out of an initial pool of 181) to move to what it called a “verification phase” of the registration process.[iv]  Additionally, DPH invited five applicants to reapply to operate RMDs in counties for which no applicant was provisionally selected.[v]  During the “verification phase,” DPH further analyzed the accuracy of the 20 provisionally selected applications and disqualified nine of the applicants.[vi]  On June 27, 2014, eleven applicants were invited to begin securing necessary approvals and otherwise establish fully operational RMDs subject to an “inspection phase” by DPH.[vii]  Likewise on November 7, 2014, after reviewing resubmissions from invited applicants, DPH approved four more RMDs (from three separate applicants) to proceed to the inspection phase.[viii]  DPH will not register an RMD until an applicant satisfactorily passes the inspection phase.[ix]  The agency has said it expects the first dispensaries to open “this winter.”[x]  To that end, DPH has now registered Alternative Therapies Inc. to grow medical marijuana in anticipation of opening its Salem dispensary within months pending final approvals; the applicant satisfactorily passed through DPH’s “inspection phase.”[xi]

Issues for Physicians

Even before the RMDs are operational, physicians may begin certifying patients to purchase medical marijuana.  However, there is much for physicians to know and critical steps they must take before providing such certifications.  Errors or oversights in this process could have serious implications for their licenses.  Set out below is a summary of the legal framework governing the certification of patients who seek to receive medical marijuana and a discussion of considerations that medical practitioners should take into account when assessing their legal compliance with the Massachusetts regulatory regime.

1. Protection from Prosecution or Discipline    

Under the Act, as passed by voters in 2012, “[a] physician, and other health care professionals under a physician’s supervision, shall not be penalized under Massachusetts law, in any manner, or denied any right or privilege, for:

(a) Advising a qualifying patient about the risks and benefits of medical use of marijuana; or

(b) Providing a qualifying patient with written certification, based upon a full assessment of the qualifying patient’s medical history and condition, that the medical use of marijuana may benefit a particular qualifying patient.”[xii]

Although the Act provides insulation from state criminal prosecution or civil discipline, it does not protect a physician from punishment (1) under federal law; or (2) under state law for violation of the Act or the DPH’s extensive regulations (discussed below).

Under federal law, marijuana remains classified as a Schedule I controlled substance in the Controlled Substances Act.[xiii]  Congress has declared that Schedule I controlled substances have “no currently accepted medical use in treatment in the United States.”[xiv]  As such, and unlike other schedules of controlled substances, it is still illegal under federal law for a physician, other clinician or pharmacist to participate in the possession, manufacture, distribution or dispensing of marijuana, notwithstanding the Act’s protection from state prosecution.[xv]

At least one court has drawn a distinction between the rendering of medical advice regarding medical marijuana and dispensing the drug.   In Conant v. Walters, the Ninth Circuit Court of Appeals, ruled that doctors may not be convicted for “aiding and abetting” any violation of the federal Controlled Substances Act, nor may the federal government revoke a physician’s license to prescribe controlled substances where the physician has provided professional advice or a recommendation regarding the use of medical marijuana.[xvi]  The Court noted that its ruling was “not intended to limit the government’s ability to investigate doctors who aid and abet the actual distribution and possession of marijuana.”[xvii]  The U.S. Supreme Court denied certiorari in the case, leaving the Ninth Circuit’s decision in place.  Nonetheless, the Ninth Circuit’s ruling is not directly applicable in Massachusetts,  only in those states within the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and certain U.S. territories).  The federal district court in Massachusetts and the First Circuit are not bound to reach the same conclusion.

There may be some comfort for physicians in the recent pronouncements of U.S. Department of Justice (“DOJ”) in response to the large number of states authorizing the use of medical marijuana and the few states that have legalized recreational use of marijuana.  In 2009, the DOJ instructed U.S. Attorneys that they “should not focus federal resources . . . on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”[xviii]  By way of example, the DOJ offered that it does not recommend “prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana . . . .”[xix]

However, the DOJ offers the important caveat that this policy “is intended solely as a guide to the exercise of investigative and prosecutorial discretion” and does not “provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter.”[xx] In other words, the policy is offered as a guide, but in no way abrogates the power of federal authorities to prosecute users and distributors of medical marijuana, or those, such as physicians, who “aid and abet” them.  Nonetheless, given the DOJ’s current policy and the tendency of federal prosecutors to pursue criminal cases of a much greater magnitude than a single physician acting in compliance with state law, federal prosecution of individual physicians should be viewed as a remote risk.

Takeaways

  • Under state law, physicians may not be subject to any criminal prosecution or civil or professional discipline for advising a patient about medical marijuana or certifying the patient to receive medical marijuana provided they comply with all requirements of the Massachusetts statute and its implementing regulations[xxi];
  • The protections in the Massachusetts statute would not protect a physician who did comply in all respects with DPH medical marijuana regulations (discussed below) from criminal prosecution or professional discipline.
  • The Massachusetts statute does not protect a physician from federal prosecution for violation of the Controlled Substances Act. However, case law from other jurisdictions might be predictive of how a Massachusetts federal court would rule if a physician were ever charged or disciplined and the DOJ has stated that it is not a federal priority to prosecute persons acting in “clear and unambiguous” compliance with existing state law.

2. Qualifying Patients

Physicians may not indiscriminately advise or certify just any patient to use medical marijuana.  The Act limits patients eligible to receive a physician’s certification to “qualifying patients,” which are defined by the Act as those patients who have “been diagnosed by a licensed physician as having a debilitating medical condition.”[xxii]  In turn, the Act defines “debilitating medical condition” as “Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician.”[xxiii]

Through its regulations, DPH has narrowed this definition by requiring that a patient with a “debilitating medical condition” must also be experiencing symptoms that are “debilitating.”[xxiv]  In turn, symptoms that are “debilitating” are defined as “causing weakness, cachexia, wasting syndrome, intractable pain, or nausea, or impairing strength or ability, and progressing to such an extent that one or more of a patient’s major life activities is substantially limited.”[xxv]  It bears further emphasis that a patient must be experiencing active symptoms; past or dormant “debilitating medical conditions” do not qualify.[xxvi]  Although DPH has attempted, through the definition of “debilitating,” to restrain some of the discretion that arguably has led to physician abuse in other jurisdictions, it still appears, as was the Act’s intention, that physicians have relatively wide latitude to certify patients and determine the severity of their ailments.

There are further restrictions for physicians certifying patients with debilitating medical conditions who are under 18 years old.  For a minor patient under the age of 18 to receive access to medical marijuana, the patient must be certified by two physicians registered with DPH to provide medical marijuana certifications, at least one of whom is a board-certified pediatrician or a board-certified pediatric subspecialist.[xxvii] There are two ways in which a minor patient can be certified.  First, both physicians must certify that the minor patient has a debilitating “life-limiting illness,” which, in turn, is defined as a condition “that does not respond to curative treatments where reasonable estimates of prognosis suggest death may occur within two years.”[xxviii]   Second, both physicians may certify that the minor patient has a “debilitating medical condition” that is not “life limiting” only if both physicians consider that the benefits outweigh the risks and consult with the patient’s parent or legal guardian regarding potential negative impacts on neurological development.[xxix]  Physicians must document their rationale and evidence their consultation with the minor patient’s parents or guardians.

Takeaways

  • Physicians may only certify patients to receive medical marijuana who have a “debilitating medical condition,” which is defined as cancer, glaucoma, HIV/AIDs, hepatitis C, ALS, Crohn’s disease, Parkinson’s diseases, MS, or other conditions in the discretion of the physician.
  • DPH has attempted to limit some of the discretion accorded physicians by requiring, through regulation, that patients be currently experiencing a series of listed symptoms “to such an extent that one or more of a patient’s major life activities is substantially limited.” Nonetheless, in view of the fact that the Act allows physicians to certify patients experiencing “other conditions in the discretion of the physician,” physicians have relatively wide latitude to determine if a patient should receive medical marijuana.
  • For minor patients under the age of 18, two physicians, one of whom is pediatrician, must certify that the patient has an illness in which he or she is expected to die within two (2) years, or another “debilitating medical condition,” but only after documented consultation with the patient’s parents or legal guardian.

3. Certification Process – Legal Implications

In comparison to the paucity of protection under federal law for physicians, the Act and its regulations institute a fairly detailed system for the distribution of medical marijuana quite unique from the typical prescription of medication.  Rather than write a prescription, the physician provides a certification to a qualifying medical marijuana patient.  Unlike a traditional prescription, this certification alone does not entitle an RMD to dispense marijuana to a qualifying patient.  Rather, the physician’s certification provides “that in his or her professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a qualifying patient.”

The qualifying patient then must submit this certification, along with other required registration information, an attestation, and a fee to DPH, to receive a medical marijuana registration card.[xxx]  If approved by DPH, it is this registration card that entitles the qualifying patient to access medical marijuana.  Although a necessary element of the process, the certification enables the physician to remain at least one step removed from the actual authorization of the use of medical marijuana.  This certification system is similar to that in other medical marijuana jurisdictions and – subject to the caveat that federal prosecution of physicians who participate in a state-authorized medical marijuana programs is rare and a stated low priority of the DOJ – appears to still constitute a technical violation of federal law.[xxxi]

Generally, physicians must demonstrate that they have a conducted a full-scale clinical review of the qualifying patient in the same manner that the physician would conduct a traditional clinical visit.  More specifically, a certification must meet the following requirements:

  • The physician and the qualifying patient must have a “bona fide physician-patient relationship.” A bona fide physician-patient relationship is defined as “a relationship between a certifying physician, acting in the usual course of his or her professional practice, and a patient in which the physician has conducted a clinical visit, completed and documented a full assessment of the patient’s medical history and current medical condition, has explained the potential benefits and risks of marijuana use, and has a role in the ongoing care and treatment of the patient.”[xxxii]
    • An interesting question would be whether a physician could maintain a “bona fide physician-patient relationship” if the only course of work the physician conducted were medical marijuana evaluations (e.g., worked at a medical marijuana clinic like those that have cropped up in other jurisdictions). The regulations appear ambiguous in this regard.
  • The issuance of the certification must comply with all generally accepted standards of medical practice, including all regulations of the Board of Registration in Medicine;[xxxiii]
  • Diagnosis of the qualifying patient may not be delegated to any other health care professional;[xxxiv]
  • Before issuing a written certification, a physician must use the Massachusetts Prescription Monitoring Program to review the qualifying patient’s prescription history;[xxxv]

There are other restrictions on the manner in which a physician may issue certifications:

  • A physician may not issue a certification prior to a clinical visit (a renewal may occur after a telephone consultation, but clinical visits must occur no less than once per year);[xxxvi]
  • Certifications must indicate the time period for which they are valid, not to be less than 15 days or to exceed one year;[xxxvii]
  • If a qualifying patient requires more than 10 ounces as a 60-day supply, the physician must document the amount required and the rationale in the certification.[xxxviii]

Takeaways

  • Physicians will not prescribe medical marijuana in the traditional sense. Rather, physicians certify that the benefits outweigh the risks for the particular patient.
  • Because the qualifying patient must submit a valid certification from a physician with many other accompanying materials to DPH in order to receive a medical marijuana registration card, the physician is at least a few steps removed from the actual authorization for the patient to receive medical marijuana.
  • While this framework likely is illegal under federal law, it both rare and a low priority of the DOJ to target physicians authorized by state law to certify patients.
  • Physicians may not issue a certification to a qualifying patient unless there exists a “bona fide physician-patient relationship.” This means, at minimum, the physician must conduct a clinical visit, a full assessment of the patient’s medical history and current medical condition, explain the potential benefits and risks of marijuana use, and maintain a role in the ongoing care and treatment of the patient.  Physicians should properly document all steps taken during the clinical visit.
  • Physicians may not delegate the clinical diagnosis of a qualifying patient to any other health care provider.
  • It is critical that physicians first check the Massachusetts Prescription Monitoring Program prior to issuing a certification, and document such verification.

4. Registration of Certifying Physicians – DPH Requirements

Before certifying any patient for eligibility to receive medical marijuana, physicians must first register with DPH.  Only physicians (medical doctors or doctors of osteopathic medicine) may register with DPH to issue medical marijuana certifications (“certifying physicians”).[xxxix]  Certifying physicians must:

  • Have at least one “established place” of practice in Massachusetts;
  • Hold an active full license, with no prescribing restrictions, to practice medicine in Massachusetts;
  • Hold a Massachusetts Controlled Substances Registration (MCSR) from DPH;[xl]
  • As of July 1 2014, completed a minimum of 2.0 Category 1 continuing professional development credits in a continuing education program that explains “the proper use of marijuana, including side effects, dosage, and contraindications, including with psychotropic drugs, as well as on substance abuse recognition, diagnosis, and treatment related to marijuana;”[xli]

Physicians may not issue a certification to a qualifying patient until he or she has first successfully registered in DPH’s Medical Use of Marijuana Online Registration System.[xlii]

Physicians must also abide by certain restrictions.  Physicians may not:

  • Accept or solicit anything of value from an RMD or personal caregiver of a qualifying patient;
  • Offer a discount to a qualifying patient to use a particular RMD or personal caregiver;
  • Examine, counsel, or issue a certification at an RMD;
  • Have a direct or indirect financial interest in an RMD;
  • Directly or indirectly benefit, in any way, from a patient obtaining a certification other than an appropriate fee for a clinical visit;[xliii]
  • Not issue a certification to himself, herself or any immediate family members.[xliv]

A physician’s registration with DPH is valid indefinitely; it does not need to be renewed.[xlv]  However, the registration becomes void upon the deactivation, suspension, or revocation of the physician’s medical license, or if the physician’s right to prescribe becomes restricted in any way, the physician voluntarily agrees not to practice medicine in Massachusetts, or the physician’s controlled substances registration is suspended or revoked.[xlvi]

Takeaways

  • Only MDs and DOs may issue medical marijuana certifications to qualifying patients. Other clinicians with authority to prescribe certain medications are not permitted to issue certifications under the Act and DPH regulations.
  • Certifying physicians must have a physical “established place” of practice in Massachusetts, hold an active license with no prescribing restrictions, hold a MCSR from DPH, and take at least two (2) continuing education credits on the medical use of marijuana.
  • Prior to certifying qualifying patients, physicians must register through DPH’s Medical Use of Marijuana Online Registration System online system.
  • Physicians may not have any financial or other affiliation with RMDs or patient caregivers, and may not certify themselves or their families.

5. Disciplinary Implications

While the Board of Registration in Medicine typically has authority to discipline unprofessional behavior – including in the certification of qualifying patients for access to medical marijuana – DPH also retains the right to revoke the registration to certify patients for any physician found in violation of any regulation.[xlvii]  DPH has not adopted regulations, nor articulated how it will structure its disciplinary proceedings or what effect a revocation of registration would have on Massachusetts licensing, participation in public payer systems, or national credentials.[xlviii]  To date, the Board of Registration in Medicine has not promulgated any specific regulations regarding physician participation in the certification of medical marijuana.

Takeaway

  • Both DPH and the Board of Registration in Medicine will have dual authority to discipline practitioners who violate medical marijuana regulations. Other than revocation of a physician’s medical marijuana registration, DPH has not explained what the consequences of its disciplinary authority will entail, nor how it will conduct disciplinary proceedings.  The ancillary effects of DPH discipline on the physician’s disciplinary status in Massachusetts or other jurisdictions, ability to participate in public payer systems and national credentials remains to be seen.

6. Nonparticipation

 The Act provides that “[n]othing in this law requires any health care professional to authorize the use of medical marijuana for a patient.”[xlix]

7. Payer Contracts

            The Act provides that “[n]othing in this law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana.”[l]  Physicians should very closely scrutinize their contracts with payers to determine if clinical visits that result in certification of a qualifying patient are a covered service for reimbursement, or might somehow by voided.  Likewise, public payer contracts may prohibit physician reimbursement for marijuana-related visits.

  • Physicians should analyze their contracts with public and private payers to determine if clinical visits that result in a certification of a qualifying patient to receive medical marijuana are somehow ineligible for reimbursement.

8 Liability Coverage

Physicians also should be highly attuned to the language of their own liability policy, or the liability policies of their practice or facility in which they practice. It could be that certifying patients to receive medical marijuana voids coverage for violation of federal law, or some other stated reason.[li]

9. Quantity

In issuing a certification, a physician may limit the duration of the certification, but the regulations do not entitle a physician to similarly limit the quantity of medical marijuana that a patient may receive.  Instead, DPH regulations set ten (10) ounces as the presumptive quantity of medical marijuana that a qualifying patient would reasonably be expected to need over a 60-day period.[lii]  The regulations authorize an RMD to dispense up to ten (10) ounces for every 60 days that the qualifying patient is certified.[liii]  For qualifying patients certified for less than 60 days, the regulations provide that the amount that the RMD may dispense “shall be no more than the appropriate proportion of a 60-day supply . . . (e.g., a patient certified for 15 days may receive up to 2.5 ounces of marijuana).”[liv]  Since 15 days is the minimum duration of a certification, the lowest quantity that a physician could authorize would be 2.5 ounces.[lv]

That strikes some practitioners as irresponsible.  The Massachusetts Medical Society cautions that “there is no clinical evidence supporting this level of consumption and some addiction medicine sources would find serious abuse in a recreational user consuming an ounce in a month.”[lvi]  Instead, the Massachusetts Medical Society counsels that physicians may elect to certify patients for the minimum 15-day period.  It writes: “[f]or example a 15 day certification would allow one time dispensing of no more than 2.5 ounces (compared to 10 ounces every six months for the duration of the certification).”[lvii]  On the contrary, the regulations also permit physicians to issue certifications for more than 10 ounces per sixty day period if medically necessary.[lviii]

Physicians may also take note that, unlike a traditional prescription that can be directed to a certain pharmacy under the supervision of a licensed pharmacist, once certified, a physician has no control over the source of the qualifying patients’ marijuana.  The patient may obtain the marijuana from any licensed RMD, and could receive marijuana of varying degrees of potency or advice from a dispensary employee with which the physician might not agree.[lix]

Takeaways

  • Physicians are somewhat circumscribed in establishing the quantity of medical marijuana that a qualifying patient will receive. DPH regulations entitle qualifying patients to receive ten (10) ounces per 60 days of certification, or the commensurate proportion if the certification is for fewer than 60 days.
  • The minimum duration of a certification is 15 days, which means the minimum amount of medical marijuana that a physician can authorize is 2.5 ounces.
  • Some practitioners question whether these quantities are too high and could lead to abuse or addiction.
  • Physicians may certify a qualifying patient to receive more than ten (10) ounces per 60 days of certification, if the physician documents his or her rationale for the upward departure on the certification.
  • Physicians may play no role in the source of the marijuana obtained by the qualifying patient. Patients may go to any licensed RMD where they might receive marijuana of varying potency, or advice from an RMD employee contrary to that of the physician.

Conclusion

For physicians certifying qualifying patients to receive medical marijuana, physicians should be aware that certification likely stands in violation of federal law (although the risk of criminal prosecution seems small).  Such position could have consequences on the physician’s liability coverage or on the ability of the physician to be reimbursed under certain public and private payer contracts.  Otherwise, physicians who desire to certify qualifying patients to receive medical marijuana must first register with DPH using an online portal, and be attentive to all requirements and restrictions in the Act and DPH regulations.

Jesse Alderman, Esq. is an associate at Foley Hoag LLP.  He has a diverse practice counseling clients on a wide range of complex regulatory compliance matters in the environmental, health care, biotechnology, real estate and transportation industries.  Jesse has provided strategic regulatory advice to major hospital networks, large gaming companies, national retailers, energy producers, and municipalities.  A summa cum laude graduate of Boston College Law School and Tufts University, Jesse clerked for the Hon. Robert J. Cordy of the Massachusetts Supreme Judicial Court and worked as a reporter for the Associated Press. 

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[i] St. 2012, c. 369, §§ 1-17.  The Act provides “that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana . . . .”  Id. at § 1.

[ii] Id.  For more background on the Act, the implementing regulations, and DPH’s selection of qualified not-for-profit corporations, see the previous article in this series, Andrew S. Levine, Esq., Robert K. Blaisdell, Esq., and Kathleen A. Harrell, MPH, The Medical Use of Marijuana and Legal Issues Associated with MA Registered Marijuana Dispensaries, http://www.healthlawreporter.bbablogs.org/2014/09/06/medical-use-marijuana-legal-issues-associated-ma-registered-marijuana-dispensaries ./

[iii] Mass Dep’t of Pub. Health, Press Release, Department of Public Health Announces Additional Registered Marijuana Dispensaries Advancing to Inspection Phase, Nov. 7, 2014, http://www.mass.gov/eohhs/gov/newsroom/press-releases/dph/additional-registered-marijuana-dispensaries-advancing.html.

[iv] Mass Dep’t of Pub. Health, All Submitted Phase 2 Application Materials, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/dispensary-application-materials.html.  Mass. Dep’t of Pub. Health, Spreadsheet, Applications Moving to Inspection Phase, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/.  For press coverage of the application process, see, e.g., Kay Lazar & Shelley Murphy, William Delahunt group would reap from licensing deal, Boston Globe, Feb. 26, 2014; Kay Lazar & Shelley Murphy, Mass. defends scrutiny of marijuana bids, Boston Globe, Mar. 11, 2014.  For an explanation of the multiple phases of the application process, see Mass. Dep’t of Pub. Health, Medical Use of Marijuana Program Process Update, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/.

[v] Mass. Dep’t of Pub. Health, Spreadsheet, Applications Moving to Inspection Phase, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/.  At that point, the “open counties” without a provisionally approved RMD were Berkshire, Bristol, Dukes, Franklin, Hampden, Nantucket and Suffolk counties.  Id.

[vi] Id. The “verification process” included review of individual and corporate background checks, reference checks, outreach to cities and towns and investigative interviews.  Mass. Dep’t of Pub. Health, Medical Use of Marijuana Program Process Update, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/.

[vii] Id. The “inspection phase” includes assurance that the RMD is in compliance with all municipal zoning and other requirements and physical inspection of the premises for compliance with DPH regulations.  Mass. Dep’t of Pub. Health, Medical Use of Marijuana Program Process Update, http://www.mass.gov/eohhs/gov/departments/dph/programs/hcq/medical-marijuana/2014-application-process/.

[viii] Mass Dep’t of Pub. Health, Press Release, Department of Public Health Announces Additional Registered Marijuana Dispensaries Advancing to Inspection Phase, Nov. 7, 2014, http://www.mass.gov/eohhs/gov/newsroom/press-releases/dph/additional-registered-marijuana-dispensaries-advancing.html.  Two of the new RMDs were approved for Bristol County, one for Franklin County, and one for Suffolk County (in Boston).

[ix] Id.

[x] Id.  It remains to be seen if Governor Charlie Baker will halt this process.  On the campaign trail, he called for a “reboot” of the “flawed” licensing of RMDs.  John Zaremba, Charlie Baker: Reboot medical marijuana process, Boston Herald, Mar. 14, 2014, http://www.bostonherald.com/news_opinion/local_politics/2014/03/charlie_baker_reboot_medical_marijuana_procepr.

[xi] Mass. Dep’t of Pub. Health, Department of Public Health Issues Certificate of Registration for MMJ Dispensary in Salem, http://www.mass.gov/eohhs/gov/newsroom/press-releases/dph/certificate-mmj-dispensary-salem.html.

[xii] St. 2012, c. 369, § 3.

[xiii] 21 U.S.C. § 812(b).

[xiv] Id. at § 812(a).

[xv] Id. at § 841(a).

[xvi] Conant v. Walters, 309 F.3d 629, 632 (9th Cir. 2002).

[xvii] Id.

[xviii] U.S. Dep’t of Justice, Memorandum of David W. Ogden, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, Oct. 19, 2009 at pp. 1-2.

[xix] Id. at p. 2.

[xx] Id. at p. 2.

[xxi] St. 2012, c. 369, § 3.

[xxii] Id. at §§ 2-3.

[xxiii] St. 2012, c. 369, § 2.

[xxiv] 105 C.M.R. § 725.004.

[xxv] Id.

[xxvi] Id. at 725.010(F) (“A patient who has had a diagnosis of a debilitating medical condition in the past but does not have an active condition, unless the symptoms related to such condition are mitigated by marijuana for medical use, and is not undergoing treatment for such condition is not suffering from a debilitating medical condition for which the medical use of marijuana is authorized.”).

[xxvii] Id. at 725.010(J).

[xxviii] Id at 725.004; 725.010(J).

[xxix] 105 C.M.R. § 725.010(J).

[xxx] Id. at 725.015.

[xxxi]  Mass. Med. Society, Massachusetts Medical Marijuana Law: Considerations for Physicians, June 20, 2013, http://www.massmed.org/Advocacy/Key-Issues/Medical-Marijuana/Massachusetts-Medical-Marijuana-Law–Considerations-for-Physicians/#.VKG8lV4C8.

[xxxii] 105 C.M.R. § 725.010(D).  Clinical visits may not occur in an RMD.  Id. at 725.010(K)(3).

[xxxiii] Id. at 725.010(B).  See also 243 C.M.R. 1.00-3.00.

[xxxiv] 105 C.M.R. § 725.010(C).

[xxxv] Id. at 725.010(E).

[xxxvi] Id. at 725.010(G).

[xxxvii] Id. at 725.010(H).

[xxxviii] Id. at 725.010(I).

[xxxix] St. 2012, c. 369 § 12(A)(1).  See Mass. Dep’t of Pub. Health, How to Register with the Medical Use of Marijuana Program: Physician Step-by-Step Instructions, http://www.mass.gov/eohhs/docs/dph/quality/medical-marijuana/mmj-system-registration-physician-step-by-step.pdf.

[xl] 105 C.M.R. § 725.005(A).

[xli] 105 C.M.R. § 725.010.  Mass. Dep’t of Pub. Health, Guidance for Physicians Regarding the Medical Use of Marijuana Revised – August 21, 2014, http://www.mass.gov/eohhs/docs/dph/quality/medical-marijuana/physician-guidance-2014-8-21.pdf.   This continuing education requirement was made effective as of July 1, 2014.  DPH states that it will “conduct random audits for compliance.”

[xlii] DPH’s guidance on the technical steps required to register are available at http://www.mass.gov/eohhs/docs/dph/quality/medical-marijuana/mmj-system-registration-physician-step-by-step.pdf.

[xliii] 105 C.M.R. § 725.010(K).

[xliv] Id. at 725.010(L).

[xlv] Id. at 725.435.

[xlvi] Id.

[xlvii] 105 C.M.R. § 725.430.  DPH states that each of the following “constitutes full and adequate grounds for revoking a certifying physician registration:

(A) The physician fraudulently issued a written certification;

(B) The physician failed to comply with the requirements of the Act or any applicable provisions of 105 C.M.R. 725.000;

(C) The physician issued a written certification on or after July 1, 2014, without completion of continuing professional development credits pursuant to 105 C.M.R. 725.010(A); or

(D) Any other ground that serves the purposes of 105 C.M.R. 725.000 or the Act.”

Id.

[xlviii] Mass. Med. Society, Massachusetts Medical Marijuana Law: Considerations for Physicians, June 20, 2013, http://www.massmed.org/Advocacy/Key-Issues/Medical-Marijuana/Massachusetts-Medical-Marijuana-Law–Considerations-for-Physicians/#.VKG8lV4C8.

[xlix] St. 2012, c. 369 § 6(C).  See 105 C.M.R. § 650(B)(3).

[l] St. 2012, c. 369 § 7(B).  105 C.M.R. § 650(B)(2).

[li] Mass. Med. Society, Massachusetts Medical Marijuana Law: Considerations for Physicians, June 20, 2013, http://www.massmed.org/Advocacy/Key-Issues/Medical-Marijuana/Massachusetts-Medical-Marijuana-Law–Considerations-for-Physicians/#.VKG8lV4C8.

[lii] 105 C.M.R. § 725.04.

[liii] 105 C.M.R. § 725.105(F)(2).

[liv] Id.

[lv] See id.

[lvi] Mass. Med. Society, Massachusetts Medical Marijuana Law: Considerations for Physicians, June 20, 2013, http://www.massmed.org/Advocacy/Key-Issues/Medical-Marijuana/Massachusetts-Medical-Marijuana-Law–Considerations-for-Physicians/#.VKG8lV4C8.

[lvii] Id.

[lviii] Id. at 725.010(I).

[lix] Mass. Med. Society, Massachusetts Medical Marijuana Law: Considerations for Physicians, June 20, 2013, http://www.massmed.org/Advocacy/Key-Issues/Medical-Marijuana/Massachusetts-Medical-Marijuana-Law–Considerations-for-Physicians/#.VKG8lV4C8.

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