Increasingly, long term care facilities across the United States are faced with a conundrum when a resident has been authorized under state law to receive medical cannabis and wishes to do so at the facility. Facilities can also face tough questions when considering the admission of a new resident who has already been using medical cannabis and wishes to continue doing so.
Any Medicare-certified long term care facility that currently allows the use of medical cannabis in its facility risks losing its Medicare certification. Although a majority of states currently have legalized some form of cannabis for medical use, cannabis is still illegal under federal law. Importantly for Medicare-certified long term care facilities, section 1819(d)(4) of the Social Security Act provides”[a] skilled nursing facility must operate and provide services in compliance with all applicable Federal, State, and local laws and regulations . . . .” [1] Allowing the use of medical marijuana in a long-term care facility would violate federal law.
Consistent with federal law, even states that have passed legislation allowing cannabis for medical use have drawn the line at allowing cannabis in long-term care facilities. As a general matter, however, none of the state and local laws that permit the use of medical marijuana require long-term care facilities to administer medical cannabis. In October, 2015, The National Long-Term Care Ombudsman Resource Center conducted a survey of state ombudsman regarding medical cannabis in long term care facilities in their respective states.[2] None of the twelve states that responded had a policy allowing medical cannabis in long term care facilities. The states that explicitly prohibited use of medical cannabis in long term care facilities cited the federal law as the reason for their own policies. For example, in California, the general counsel for the regional office of the Department of Health and Human Services stated “federal law prohibits a [skilled nursing facility] from dispensing medical marijuana. . . . [U]ntil we get clarification from our Central Office, we cannot approve the dispensing of medical marijuana in federally certified long term care facilities.”[3]
The example of Illinois, which launched its medical cannabis program in 2014, is illustrative of the issues a long term care facility will have to consider in formalizing a medical cannabis policy. Although it is considered to be one of the most restrictive medical cannabis programs in the country,[4] the Illinois Compassionate Use of Medical Cannabis Pilot Program Act (“IL Medical Cannabis Act”) allows patients with specified medical diagnoses who register and obtain a license from the Illinois Department of Public Health (“IDPH”) to obtain a prescription for medical cannabis, and allows licensed physicians to prescribe medical cannabis.[5] Registered patients are allowed to designate one non-physician caregiver, who must also register and be approved by the IDPH, to assist them with purchasing and transporting cannabis products. However, one individual may not be the designated caregiver for more than one cannabis patient.[6] The IL Medical Cannabis Act directed the IDPH to issue “reasonable rules concerning the medical use of cannabis at a nursing care institution.”[7] However, to date, in the four years since the Act’s passage, the IDPH has not done so. Given the current status of federal and state laws, the Illinois Health Care Association (“IHCA”) has advised that: “This is a very complex and confusing area, especially for [long term care facilities]. . . . Until the federal issue is resolved and IDPH drafts rules/guidelines, [long term care facilities] should be very careful in this area.”[8] To that end, long term care facilities must remain cognizant that cannabis remains illegal under federal law.
As things stand today, any long term care facility currently allowing the use of medical cannabis in its facility risks losing its Medicare certification. This is why it is important for long term care facilities to involve legal counsel when deciding whether to allow patients access to medical cannabis and in drafting policies surrounding this issue. For facilities that do rely on Medicare or other federal funding, prohibiting the dispensing, possession, or use of medical cannabis by residents on facility property may be the only viable option to avoid the risk of losing those funds.
[1] 42 U.S.C. 1395i-e(d)(4).
[2]The Use of Medical Marijuana in Long Term Care Facilities, The National Long-Term Care Ombudsman Resource Center, p. 1 (Oct. 2015) (available at https://ltcombudsman.org/uploads/files/support/oct-2015-use_of_medical_marijuana-in-ltcf-FINAL.pdf).
[3]Id. at 2.
[4]Medical Cannabis in Illinois, Jonathan Loiterman, JD, MBA, Chicago Magazine, p. 17 (May, 2014).
[5] 410 ILCS 130/1, et seq.
[6] 410 ILCS 130/10 (i).
[7] 410 ILCS 130/165.
[8] Regulatory Beat Newsletter, Illinois Health Care Association (April 19, 2016) (available at https://www.ihca.com/resources_list.asp?d=77&c=6&i=22).