Thanks for reading this week’s Truce Medical Minute. Today’s blog post will be a departure from our usual clinical discussion as I am going to educate our readers on a critical medico-legal issue with “prescribing” medical cannabis, and why it is too risky for Utah’s physicians, NPs and PAs to get involved. I hope this clears up some questions and raises even more. We must get this fixed.
I cannot emphasize enough how important this topic is, and it is one that in my (Dr. Andrew Talbott) opinion eclipses any perceived issues regarding the number of dispensaries, or blister packs, or anything else with Utah’s laws. I apologize in advance for the length of this discussion; it likely merits a two-part (or three) blog post but I am going to forge through in one pass.
First: a bit of background. Recommending and prescribing cannabis are not the same. Cannabis patients and supporters of free speech and free will are likely are already well versed in the differences between prescribing and recommending.
“Recommending” is the result of a process of a physician discussing cannabis therapy with a patient, and conveying the judgement that cannabis is likely to benefit that patient. There is not necessarily any exchange (like a letter) and certainly no directives of dosing parameters are involved.
“Prescribing” cannabis (or any medication) involves a physician making the same judgement that the medicine would help, but also mandating dosing instructions. This means that he/she would “advise and authorize the use of (a medicine or treatment) for someone, especially in writing” and includes specific information about exact product, route of administration,, the dose, frequency dosing and total amount of medication dispensed.
Utah’s laws require physicians to provide “dosing parameters”, which is the ESSENCE a prescription. If the physician declines to provide this information and includes the recommendation alone, then the responsibility to determine dosing parameters falls to the pharmacist. If the pharmacist does indeed provide these instructions then he/she is writing the prescription. Determining this specific information constitutes the practice of medicine, which is of course outside the scope of practice of any pharmacist. The pharmacist is not making the recommendation but in this case would be the sole professional responsible for determining what type/dose of medicine is dispensed to the patient.
The difference between a recommendation and a prescription is critical, and one that MUST be understood as it is the basis of federal protection for physicians who advise their patients to use cannabis. These protections were granted in the 2002 legal case Conant vs. Walters.
Conant vs. Walters was a case in the 9th Circuit Court of Appeals (https://www.ca9.uscourts.gov/), a US Federal court. The result of this case was a decision that physicians who recommend cannabis have protections granted by the First Amendment. This is the right of free speech between a doctor and a patient. It protects health care providers who discuss cannabis with their patients from any Federal repercussions. This is so, “regardless of whether s/he anticipates that the patient will, in turn, use this recommendation to obtain marijuana in violation of federal law” (1).
The problem we have here in Utah is that the federal government’s Judicial Branch oversees the Drug Enforcement Agency, or the DEA. The DEA grants physicians the ability to prescribe controlled substances by issuing a certificate to those who follow their guidelines. Conant vs. Walters makes it quite clear that these protections DO NOT extend to physicians who prescribe cannabis for patients. In fact the judicial it clearly states that physicians who prescribe cannabis “risk revocation of their DEA prescription authority”.
Furthermore the judicial decision covers quite clearly that any provider who issues a recommendation (even without dosing parameters!) with the “specific intent that the patient will use the recommendation like a prescription to obtain marijuana” (1) is in jeopardy of losing his/her DEA certificate. This means that Utah’s law current law, like Proposition 2 before it, expose Utah’s physicians issuing cannabis recommendation cards to serious risk of losing their ability to prescribe ANY controlled substances.
As an added punch to the gut, there is a Catch-22: the loss of a DEA certificate means that the physician is no longer eligible to be a QMP (qualified medical provider) in Utah’s medical cannabis system. The very act of recommending cannabis would disqualify them from ever recommending it again.
My recommendation is that NO UTAH PHYSICIAN should ever write a recommendation for cannabis through the Medical Cannabis Card System under Utah’s new law until it is changed. The upcoming General Session that begins January 27, 2020 would be a perfect time to fix this. My advice for our lawmakers would be to:
A. Uncouple the requirement that QMPs must hold a DEA certificate
B. Remove the requirement for dosing parameters (by physician or pharmacist)
C. Remove the unsafe patient caps of 175 patients (300 for specialists)
The Utah Medical Cannabis card system will become active “by March 1, 2020”. When that happens patients could theoretically obtain cards that allow them to purchase medical cannabis in dispensaries in the state of Utah. I will not be issuing ANY cards to patients and I advise all of Utah’s physician, nurse practitioners and physician assistants to do the same. The DEA will absolutely be made aware of violators of these federal laws and I expect them to act swiftly and harshly. In the 2020 General Legislative Session Utah has the chance to protect physicians while allowing patients to have access to the medicine they need.
Until the law is fixed I would also advise patients to continue to use their medicine, but do not expect to obtain it in any of Utah’s new dispensaries that are supposed to open next year. To purchase cannabis at Utah dispensaries will require a Cannabis card. “Prior to January 2021, under Utah law, patients meeting certain criteria outlined in the Medical Cannabis Act may legally possess medical cannabis without a medical cannabis card: (2).
Instead, continue to use your recommendation letters to protect you, but purchase your medicine outside of Utah at licensed dispensaries that test their products for quality and purity. “affirmative defense letters” DO NOT violate this federal law, as they are not used by the patient to directly obtain the cannabis.
Contact your legislators and urge them to fix this critical flaw in the law before it is too late. They CAN do this in the 2020 General Session. Of course a simpler fix would be for the federal government to “de-schedule” cannabis, effectively ending its criminalization. If you are interested in this possibility I also urge you to register to vote and vote against President Trump in 2020, as it should not be expected that any federal rescheduling will occur in his administration.
TL,DR:
1. Utah physicians who prescribe cannabis are not protected by federal law
2. Physicians/NPs/PAs SHOULD NOT recommend medical cannabis under the QMP/MC Card System unless they are willing to surrender their DEA certificate
3. Patients should continue to use their recommendation letters but DO NOT utilize Utah dispensaries and instead use out-of-state dispensaries (letters protect patients until January 2021) to get the medicine they need
4. Contact your legislators and demand that they fix these issues
Andrew Talbott, MD
TRUCE Medical Advisor
Board Certified in Anesthesiology and Pain
References:
1. Americans for Safe Access, https://www.safeaccessnow.org/landmark_federal_conant_v_wal…
2. Utah Department of Health, https://medicalcannabis.utah.gov/patients/
Post script: I understand that QMPs may include nurse practitioners, physician assistants, and others besides medical doctors only. As a medical doctor, I use the term “physicians” as a convenience with that understanding. Please do not be offended.
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