As of this writing, there has been no change in the federal law relative to the use, storage and distribution of medical marijuana. We monitor the discussion and will let you know if a change occurs.
We have been asked to distribute template policies and procedures but are reluctant to do so because of the diverse nature of the issue. We can, however, give you guidance for drafting your own.
First, there are a few basic issues related to the use of medical marijuana:
- Marijuana, medical or recreational, is still considered a Schedule I drug and is illegal under federal law.
- State law has strict parameters as to how it can be obtained, grown, stored and used.
- State law does not list nursing center or ALF employees as caregivers.
- Arguably, such an employee could be a caregiver if he or she is a resident family member but only for that resident.
- Hospice workers can be caregivers under state law.
- Any quantity is illegal under state law if the resident is not authorized to use medical marijuana.
While it remains illegal and it certainly is not anyone’s intention to violate federal law, in reality, there will be residents in your facility who are certified to use medical marijuana. You can also assume there will be residents who bring it in without your knowledge.
Some things you should not do:
- Store medical marijuana;
- Distribute it; or
- Assist in administering it.
The fears surrounding the use of medical marijuana, both to the user and to your staff, creates issues. Is the family afraid that if you learn they are bringing in marijuana for the resident you will stop them? If so, then you likely will not know to monitor the resident more carefully. Is a staff member assisting a resident with administration despite knowing that is illegal? When you find that out, you must take action.
Policies and procedures that are clear and concise should be developed. They should include:
- Language stating that staff cannot assist residents with using medical marijuana
- How you will protect non-using residents from exposure to marijuana
- Language stating that marijuana:
- Cannot be grown on the premises
- Cannot be displayed in public areas
- Cannot be stored in visible containers in residents’ rooms
- Cannot be smoked to ensure air quality (the courts are considering whether smoking is legal)
- How knowledge of marijuana use will be considered in care and service plans
- Whether a negotiated risk contract is an option
As long as marijuana remains illegal under federal law, we will grapple with the need to protect residents and provide good quality care. Your policies and procedures should be reviewed by your facility attorney for compliance.
However, if you have residents who are using medical marijuana, it is important you know how it is affecting them. Medical marijuana can enhance side effects of certain other drugs. It can also impact symptoms (positively or negatively) of certain illnesses. Does the resident who drives an electric scooter use medical marijuana? Does that make him a safety risk? That person may even drive a car.
Another area of concern is staff who have the proper approval for medical marijuana. If you are drug testing, how do you handle a positive test for marijuana when a staff member has authorization? Eventually, when we no longer have the state/federal issue, we expect medical marijuana will be treated as any other drug. If the employee has proper authority, is using it in accordance with state law and it does not impede his/her ability to perform the job, it will be ok.
One other point: we have received calls regarding CBD Oil. CBD Oil is sold over the counter. It supposedly has the THC removed and does not cause a high. It is supposed to be derived from hemp. Recently, the federal government loosened restrictions on hemp derivative products. However, the problem is that there are no clear regulations for CBD Oil so it can be made from cannabis or hemp or can include TCH. There is a risk that a provider will be using oil that is not properly refined.
We urge you to think carefully and consider instituting policies and procedures to protect your center and your residents from risks associated with medical marijuana use. Because of the federal issues, your corporate attorney should determine what those are and whether you should even have them. What we have given you here are ideas and suggestions. We will keep you informed as the issues change and the questions are answered.