Healthcare providers and legal issues of medical certification
In part 1, I reviewed a brief history of marijuana, discussed medical-grade cannabis, presented some basic information regarding the constituents in the marijuana plant, and gave an overview of the endocannabinoid system. In part 2, I discussed medical marijuana education and information regarding its uses, side effects, and dosing. In the final part of this series, I will discuss information that is specific to healthcare providers in relation to their advocacy role, ethical and legal considerations of the patient that is a healthcare provider, and a review of the current laws/regulations. This information is helpful to both patient/caregiver and medical provider(s).
It is imperative for providers to have basic education regarding the recreationally legal medicinal product, safe and effective use of this adjunct medicine, and to help their patients make informed healthcare decisions. The information contained in this blog series should not be construed as legal advice or counsel. When deciding to engage in or obtain medical marijuana certification, it is important that you understand all laws and regulations of the State of Nevada and the United States Drug Enforcement Agency and how it relates to you. Always seek legal advice from appropriate counsel in your area for questions.
As healthcare providers, we have all taken on a role to help others in some way. Advocacy for others can be defined and provided in many ways. Advocacy may include managing logistics, translating medical terms, or dealing with ethical issues. It may also be a supportive word to help another person advocate for themselves. Nurses are well known and suited for the practice of patient advocacy and supporting the interests of another person(s). Indeed, nurses are often the front line to ask questions regarding home and self-care. In a review of research, Vaartio & Leino-Kilpi (2004) indicate that nursing advocacy includes:
1.safeguarding the patient’s autonomy
2.acting on behalf of patients
3.championing social justice in the provision of health care
I prefer to conclude that all patient advocates operate on these ideals of advocacy at various levels. In the current Nevada environment of legalized recreational marijuana use, all healthcare providers should inquire about use, educate based on evidence-based research and advocate for their patients.
It is important to know what advocacy professionally as a healthcare provider may entail in regards to medical marijuana. We carry licensure and certification that is influenced/guided by Federal regulations/laws and defined by State regulations and laws. The Controlled Substances Act (CSA) Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is the U.S. drug policy under which the manufacture, importation, possession, use and distribution of certain narcotics, stimulants, depressants, hallucinogens, anabolic steroids and other chemicals is regulated… The DEA implements the CSA and may prosecute violators of these laws at both the domestic and international level. Within the CSA there are five schedules at the federal level (I-V) that are used to classify drugs based upon their abuse potential, accepted medical applications in the U.S., and safety and potential for addiction. Marijuana is listed in Schedule 1 (The drug has a high potential for abuse. The drug has no currently accepted medical use in treatment in the United States. There is a lack of accepted safety for use of the drug under medical supervision.) (Anderson, 2018).
It is important to understand “the CSA is not preempted by state medical marijuana laws, nor are state medical marijuana laws preempted by the CSA. States can statutorily create a medical use exception for botanical cannabis under their own, state-level controlled substance laws. At the same time, federal agents can investigate, arrest, and prosecute medical marijuana patients, caregivers, and providers in accordance with the federal CSA even in states with medical marijuana laws” (Wolski, n.d). It is this double-edged sword that has many healthcare providers leery to be involved in marijuana advocacy roles.
Now that you, the reader, has stopped, re-read the preceding paragraph and thought, “I’m not getting involved in this! I have a license to protect!”…. Stop, take a breath…. There are reasons for you to be hesitant, but there are more reasons to advocate. Additionally, many State and Federal agencies/organizations are advocating for legalized medical marijuana, patient rights and provider protection!
The American Nurses Association (2016) position statement supports:
• The education of registered nurses and other health care practitioners regarding appropriate evidence-based therapeutic use of marijuana including those non-smoked forms of delta-9-tetrahydrocannabinol (THC) that have proven to be therapeutically efficacious
• Protection from criminal or civil penalties for patients using medical marijuana as permitted under state laws
• Exemption from criminal prosecution; civil liability; or professional sanctioning, such as loss of licensure or credentialing, for health care practitioners who prescribe, dispense or administer medical marijuana in accordance with state law.
• Reclassification of marijuana’s status from a Schedule I controlled substance into a less restrictive category.
• Confirmation of the therapeutic efficacy of medical marijuana.
In regard to documentation for providers, The Federation of State Medical Boards guidelinesprovide the following recommendations in Model Guidelines for the Recommendation of Marijuana in Patient Care; “The physician should keep accurate and complete medical records. Information that should appear in the medical record includes, but is not necessarily limited to the following:
· The patient’s medical history, including a review of prior medical records as appropriate;
· Results of the physical examination, patient evaluation, diagnostic, therapeutic, and laboratory results;
· Other treatments and prescribed medications;
· Authorization, attestation, or recommendation for marijuana, to include date, expiration, and any additional information required by state statute;
· Instructions to the patient, including discussions of risks and benefits, side effects, and variable effects;
· Results of ongoing assessment and monitoring of patient’s response to the use of marijuana;
· A copy of the signed Treatment Agreement, including instructions on safekeeping and instructions on not sharing “ (FSMB,p.8, 2016)
These guidelines could/would also apply for an applicable nursing/SOAP note encounters.
In Nevada, due to being an adult legal/recreational marijuana-use state, I strongly encourage providers to assess for use and be able to have basic evidenced-based knowledge of marijuana and its uses as adjunctive treatment. I also want to address some considerations regarding healthcare providers working with medical marijuana patients.
When I mention medical marijuana, I am indicating those patients whom are medical marijuana card holders. Often patients will question, “Why do I need to pay for a medical card when I can get it at the dispensary legally?” The answer is related to the rights of patients and the protections afforded to patients from specific criminal sanctions indicated in the Nevada Revised Statues(NRS). There are also some protections in NRS 453A for patients who are also providers with a professional license (i.e., NRS 453A.050).
So lets take a look at some of the critical aspects of the law. To begin with, there are only certain medical diagnoses that qualify patients to apply for a card. These conditions (NRS 453A.050) include: “Chronic or debilitating medical condition” means:
1. Acquired immune deficiency syndrome;
2. Cancer;
3. Glaucoma;
4. A medical condition or treatment for a medical condition that produces, for a specific patient, one or more of the following:
(a) Cachexia;
(b) Persistent muscle spasms, including, without limitation, spasms caused by multiple sclerosis;
(c) Seizures, including, without limitation, seizures caused by epilepsy;
(d) Severe nausea; or
(e) Severe pain; or
5. Any other medical condition or treatment for a medical condition that is:
(a) Classified as a chronic or debilitating medical condition by regulation of the Division; or
(b) Approved as a chronic or debilitating medical condition pursuant to a petition submitted in accordance with NRS 453A.710.
Allowable possession is limited by quantity in Nevada. For medical card holders: Two- and one-half ounces of usable marijuana in any one 14 day period (defined in NRS 453A.160) 2. Twelve marijuana plants, irrespective of whether the marijuana plants are mature or immature (defined in NAC 453A.080) 3. A maximum allowable quantity of edible marijuana products (defined in NRS 453A.101) and marijuana-infused products (defined in NRS 453A.112) as established by regulation of the Division. Knowing these quantities is important so patients are utilizing their medication in legal quantities to prevent criminal prosecution.
The NRS does include some criminal exceptions for marijuana card holder patients including: the ability to possess and grow marijuana plants in larger quantities then recreationally allowed (see NRS 453A for specifics), and exemption for possession of marijuana (on person) or paraphernalia. Additionally, NRS 453A.510 states, “Professional licensing boards are prohibited from taking disciplinary action against licensee on basis of licensee’s participation in certain activities in accordance with chapter” including the licensed “person engages in or has engaged in the medical use of marijuana OR is a primary caregiver (not to be confused with a provider of health care) to a medical card holder in accordance with the provisions of this NRS. Currently, the Nevada Legislature is reviewing many various bill drafts around the medical marijuana industry. A.B. 132 would prohibit the denial of employment because of the presence of marijuana in a screening test employment to marijuana medical card holders. S.B. 228 addresses “authorizing the medical use of marijuana or industrial hemp by certain licensed professionals or persons who provide wellness services on a patient or client; prohibiting disciplinary action against such professionals for administering or recommending the use of marijuana or industrial hemp; prohibiting certain medical professionals from refusing to prescribe certain controlled substances for the treatment of pain solely because the patient uses marijuana”.
The exemptions do not apply to all situations or card holders. It is important to know that the State of Nevada has defined the blood and urine concentration for driving/flying/sailing of unlawful amounts of marijuana in the blood or urine, per N.R.S. 484.379, are 10 nanograms per milliliter of urine and 2 nanograms per milliliter of blood. The law also applies to situations such as water skiing, surfing or going on an amusement park ride under the influence; possessing a firearm while under the influence (does not include in-home self-protection possession), use of marijuana in any public place or in any place open to the public or exposed to public view (i.e., local detention facility, county jail, state prison, reformatory or other correctional facility, or possession of the marijuana or paraphernalia on school property) (NRS 453A.300). Moreover, for gun-owning Nevadans, the law may also prevent obtaining a concealed weapons permit due to “habitual use of a controlled substance (NRS 202. 3657). If you have specific questions regarding the law, please do not hesitate to contact the State of Nevada Public and Behavioral Health Division. Knowing the law and being able to educate patients regarding the legal possession and use is important as the medical marijuana card is not a “get out of jail free card.”
What happens when the healthcare provider becomes the patient? This can become a legal and ethic issue for this group of patients. All medical marijuana patients must register with the State of Nevada to be issued a card. This can be an unnerving situation for a healthcare provider to register as a patient for fear of their professional board(s) acting against them. Additionally, in 12/2016 there was a data breach via cyber hack of the state marijuana registry. More than 11,000 patients’ application details and identities were leaked online. Since then, the registry has under gone a security revision that continues to be secure today. Additionally, HIPAA rules regarding release of medical information without consent also helps to protect all medical card holders from this sensitive information being released without patient authorization. In regard to employment; as many healthcare providers work for agencies that receive federal funds, any use of a prohibited schedule 1 drug goes against As the current law in Nevada does not require employers to accommodate employees who use medical marijuana, you may wish to consult an attorney about whether or not to tell your employer that you are a cardholder. Finally, the protections afforded by the medical marijuana card are key for any healthcare provider whom is using marijuana per State of Nevada law and/or in possession of marijuana outside of your home, however, obviously use at work is not a good idea nor recommended. But what is recommended, is to obtain a marijuana medical care as a healthcare provider IF you are going to use (Sobel, K. (n.d.).
I hope this medical marijuana series has been helpful and informative. If you have questions or would like to come in for a consultation, please feel free to contact us! 775-720-2563
References:
American Nurses Association (ANA). (2016). Position Statement: Therapeutic Use of Marijuana and Related Cannabinoids @ https://www.nursingworld.org/~49a8c8/globalassets/practiceandpolicy/ethics/therapeutic-use-of-marijuana-and-related-cannabinoids-position-statement.pdf
Federation of State Medical Boards (FSMB). (2016, April). Model Guidelines for the Recommendation of Marijuana in Patient Care @ https://www.fsmb.org/siteassets/advocacy/policies/model-guidelines-for-the-recommendation-of-marijuana-in-patient-care.pdf
L. Anderson, L. (2018, May 18). CSA Schedules. Obtained from Drugs.com @ https://www.drugs.com/csa-schedule.html
Nevada Revised Statuses of 453A and 202
Sobel, K. (n.d.). Legal Approach for Nurses, Online Course viewed 12/12/18. The Medical Cannabis Institute.
State of Nevada Division of Public and Behavioral Health @ http://dpbh.nv.gov/Reg/MM-Patient-Cardholder-Registry/MM_Patient_Cardholder_Registry_-_Home/
Vaartio, H. & Leino-Kilpi. 2004. Nursing advocacy – a review of the empirical research 1990- 2003. International Journal of Nursing Studies Vol.42, 705-714.
Wolski, K. (n.d.). Cannabis Prohibition: The Harmful Consequences, Online Course viewed 12/12/18. The Medical Cannabis Institute.