Massachusetts Medical Marijuana Law: Considerations for Physicians

The final regulations for the Massachusetts medical marijuana law became effective May 24, 2013. The regulations cover the activities of physicians, patient eligibility, and rules for the ownership and operation of medical marijuana dispensaries.

This commentary is provided for informational purposes only. Readers are strongly encouraged to read the full text of the regulations (.pdf, 52 pages).

A detailed MMS overview of the physician-related sections is available here.

Federal Law and the Massachusetts Statute

The MMS thoroughly researched the legal implications of the new law and how it will work in the context of federal laws and regulations. The relevant opinion was issued in 2002 by a federal appeals court in the case of Conant v. Walters. That decision protected a physician’s first amendment right to discuss medical marijuana with their patients, but it does not create a right for physicians to help patients obtain cannabis for medical use.

The Role of Physicians

The narrow federal protection cited above is the reason that the new Massachusetts law sets up a structure which limits the role of physicians to providing the DPH with a written certification of potential patient benefit from marijuana. This will allow a patient to obtain a state issued registration card and obtain marijuana from a dispensary. This system means that the physician is not writing a prescription or directly referring a patient to a source of marijuana, and is consistent with Conant v. Walters. These remain federally prohibited. However, the Obama administration has indicated that it will not pursue legal action in any state in which medical marijuana has been legalized.

Requirements for Physicians

  • Certifying physicians must have a full active license, with at least one established place of business in Massachusetts
  • Starting on or after Jan. 1, 2014, physicians must complete two hours of CME credits on the proper use of medical marijuana before being permitted to issue certifications
  • Physicians must utilize the state Prescription Monitoring Program before certifying a patient
  • Certifications must be submitted after a clinical visit
  • Certifications are valid for no fewer than 15 days and no more than one year
  • No certifying physician, physician co-worker or family member may have a financial relationship with a marijuana dispensary
  • Physician may not certify marijuana use for themselves
  • Physicians may not delegate certification to any other person, or any other health care professional
  • A physician’s certification privileges may be revoked for failure to comply with the regulations.

Bona Fide Physician-Patient Relationship

The new state law requires a bona fide physician-patient relationship prior to writing a certification for a patient. Certifying physicians should document a full assessment of the patient’s medical history and current medical condition, explain the potential benefits and risks of marijuana use, and have a role in the ongoing care and treatment of the patient.

Debilitating Medical Condition

The law specifies certain diseases but allows certification for other debilitating conditions as determined by the patient’s physician. The regulations require that a patient must not only have one of the diseases included in the referendum but also must suffer debilitating symptoms. The regulations provide broad physician discretion allowed in the certification process which, in other states, has led to abuses and threaten the integrity of the entire process. 

Minors

The adopted regulations expanded the draft regulations regarding access to marijuana by minors during the last six months of life. The final rules allow the override of the “life-limiting” provision and by changing the definition of “life-limiting illness” from six months to two years. The scientific evidence is clear that marijuana use by children is dangerous, as studies have found toxic effects on the still-developing brains of young people. 

Dual Oversight

Specifically in the law there is a statement that physicians are not required to participate in certifying patients. Physicians concerned about accusations of discrimination from advocates for not participating in the program should be assured by the specific protection for non-participating physicians in the law, as well as in the general standard of care for physicians which requires them not to participate in clinical evaluations and treatments which are beyond or inconsistent with their skills, knowledge and training.

The Board of Registration in Medicine has clear authority for conduct in disciplining physicians for unprofessional behavior, but the Department of Public Health (DPH) has also reserved for itself the right to require certifying physicians to register with the Department and to revoke such registrations if physicians commit fraud in certifying patients or submit certifications without having engaged in the required CME programs.

While disciplinary processes and implications for the Board of Medicine are well established, the mechanism by which the DPH would conduct such a process is unclear, as are the implications for physicians regarding the national practitioner databank, physician licensing here and in other states and credentialing for participation in insurance and public payment systems should the DPH revoke a registration. The DPH does not plan to charge physicians for registering as certifiers.

Supply

The law sets a sixty day supply for a patient a ten ounces. 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.  One option is for physicians to certify patients for a lesser period. For example, a 15 day certification would allow one time dispensing of no more than 2.5 ounces.

In contrast, a patient certified for a full year would, without limitation, be allowed up to ten ounces every 60 days for a total annual purchase of 3.75 pounds of marijuana. Certifications for short periods would not protect patients for possession of marijuana charges after the period expires.

Physicians may specify more than 10 ounces to be dispensed but may not specify less through any measure other than the time limits. Given the significant cost per ounce and the effects of consumption, legitimate patients are unlikely to take full advantage of their option to buy ten ounces for personal use.

Liability Coverage Issues

Physicians interested in certifying an individual patient should carefully review the liability coverage and policies of the group, facility or setting in which they practice.

Physicians practicing in sites which specialize in marijuana assessments should carefully review the regulations and their professional liability policies, to ensure they are practicing within the law and within their liability coverage which is required as a condition of practice. Practices that are exclusively certification sites may be operating inconsistently with the regulations, particularly in the area of the physician-patient relationship.

Prescription Monitoring Program Requirements

The regulations require use of the state’s Prescription Monitoring Program prior to issuing a patient certification. The program (or a similar database), which holds data on all schedule II-V prescriptions, will record on marijuana certifications and dispensing. It is unclear how such data may be used, but it should provide physicians with documentation of patient’s prescription histories. For example, the data could document the patient’s efforts at pain management which may support the use of marijuana, or it could provide histories that suggest potential problems for patients.

Confidentiality of Information

Physicians must discuss with patients the extensive information on diagnosis and dispensing that will be held by the DPH. The DPH’s intention is to keep patient specific information confidential and will not share such information with dispensaries.

However, physicians should note that their participation in the certifying process is not confidential.

Registered Marijuana Dispensaries

The Public Health Council amended the regulations to refer to “registered marijuana dispensaries” as the name used to describe the statutorily created medical marijuana treatment centers. The Council felt that neither treatment nor medical care was provided at these sites. This is an important distinction.

Physicians must remember that in certifying a patient as having a disease from which they might benefit from the use of marijuana, physicians are enabling a patient to go to a facility of their choice where the patient will likely receive marijuana, and possibly advice, from individuals who are not required to have a clinical background.

Additionally, dispensaries should receive no information directly from physicians on a patient’s medical history. This is completely different from other referrals in the medical world and the implications are not clear yet. Physicians are barred from participating in dispensing marijuana for their patients whom they certify. The DPH will develop educational materials for patients in dispensaries.  

Share on Facebook

Find Your Legislator

Click here to enter your address and get a list of your federal representatives, state legislators, and your local polling place.

Find Your Legislator »

Mass. State Agencies

State House - Mass. State AgenciesRapid access to resources about MassHealth, Public Health, Board of Medicine, and more.

Read More »

2015-16 MMS Legislation

View legislation filed by MMS for the current legislative session.

Read More »

FacebookTwitterLinkedInYouTube

Copyright © 2017. Massachusetts Medical Society, 860 Winter Street, Waltham Woods Corporate Center, Waltham, MA 02451-1411

(781) 893-4610 | (781) 893-3800 | Member Information Hotline: (800) 322-2303 x7311