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Seniors’ use of medical marijuana in ALFs and SNFs

May 28, 2014
by John Gosselin, Esq.; Alex Moschella, Esq., CELA ; Despina Kyriakidis, Esq.; Erin Woodbury, MSW
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Massachusetts’ experience provokes thoughts, questions

Massachusetts’ implementation of a “medical marijuana law,” and how it applies to assisted living facilities (ALFs) and skilled nursing facilities (SNFs), is, of course, of special interest to providers in that state, but it may hold lessons for senior living communities elsewhere as well.

The Massachusetts Act for the Humanitarian Medical Use of Marijuana passed as a ballot initiative in the state on Nov. 6, 2012, supported by 63 percent of voters. It took effect Jan. 1, 2013, exempting individuals with qualifying medical conditions from penalties imposed under state law for the use of marijuana.

Fifty-two pages of regulations that were developed by the state’s Department of Public Health (DPH) were approved May 8, 2013. The state may license up to 35 dispensaries and as of this writing has selected 20 dispensaries, which still are being inspected before being granted provisional licenses. Those licenses are expected to be issued by the end of this summer or fall, although it may take three to four months to grow the medicine before the dispensaries open their doors.

Qualifying residents

Under the law, state-licensed physicians must determine whether individual ALF and SNF residents meet the test of a “qualifying patient” (the word patient will be used at times in this article as it relates to the language of the law). That test includes having a debilitating medical condition for which the potential benefits of the medical use of marijuana outweigh the health risks. Acceptable conditions as defined by the law include cancer, glaucoma, HIV, AIDS, Crohn's disease, Parkinson's disease and multiple sclerosis, and the law further separates diagnoses on a case-by-case basis. Some people have expressed concern that the list does not specify amyotrophic lateral sclerosis.

| Related article: Does Parkinson's need to meet Mary Jane? |

After July 1, certified doctors must have completed a minimum amount of continuing medical education (CME) on the proper use of marijuana, including side effects, dosage and contraindications, including its interaction with psychotropic drugs; substance abuse recognition; diagnosis; and treatment related to marijuana. The only CME currently available for physicians is through the website; this course is open to anyone at no charge unless he or she is completing it for credit.

Under the law, a certified doctor must:

  • Issue written certification of a “debilitating medical condition” only for a qualifying patient with whom he or she has a relationship;
  • Use the state’s prescription monitoring program unless specified otherwise by the public health department;
  • Visit the qualifying patient no less than once a year;
  • Indicate the time period of the certification, which shall be no less than 15 dates or more than one year; and
  • Document in the written certification if the amount of marijuana exceeds 10 ounces for a 60-day supply, the amount of marijuana and his or her rationale for the prescribed amount.

As a point of interest, a Massachusetts resident aged fewer than 18 years who meets all of the aforementioned conditions must have received a diagnosis by two Massachusetts-licensed certifying physicians, one of whom is a board-certified pediatrician or board-certified pediatric specialist or subspecialist. Essentially, it is up to the resident and doctor to determine what medical marijuana use is appropriate. The recommendations are valid for up to one year or for less time if specified by the physician.

Caregiver responsibilities

The regulations are clear that an employee of a hospice care provider, nursing facility, medical facility, visiting nurse service, home healthcare provider or personal care service—or an immediate family member—may serve as a caregiver for more than one person at any time. All “personal qualified caregivers” first must complete an application for registration required by the  DPH, and they receive a registration card that must be renewed annually. Each resident may identify up to two caregivers, and they may not receive compensation for this role in addition to their regular wages.

Under the regulations, a personal caregiver may transport a qualified patient to and from a registered marijuana dispensary, obtain and transport marijuana, and cultivate as well as prepare and administer marijuana. In the ALF or SNF setting, however, the personal qualified caregiver is not permitted to cultivate the medication (it appears that a family personal caregiver, under unusual circumstances as set out under the law’s hardship regulation, may cultivate in the home setting, however). A personal caregiver also may not sell, distribute or consume any medical marijuana that is intended for the qualifying patient.

Further information is needed to determine whether a dispensary will deliver to a senior living community. If not, a caregiver is permitted to drive the resident to the dispensary or can pick up the medication himself or herself. It has yet to be determined whether a senior living community will be interested in having an employee approved for this service.