On Nov. 8, 2018, nearly two-thirds of voters approved an amendment to the Missouri Constitution authorizing the growth, possession, sale and use of medical marijuana. In total, 33 states allow medical marijuana, with 17 states legalizing through a ballot measure and 16 through legislative action. Although Missouri is not alone in adopting a constitutional amendment, the majority of states authorized their programs by statute.
Conferring a constitutional right is a big deal. Lawmakers cannot easily modify the program if problems arise — voters would need to approve changes. In states that have adopted medical marijuana by amendment, there appears to be more litigation. This could be the result of establishing a constitutional right, rather than statutory authority to participate in the program.
Although much work remains for the system to be implemented — including rulemaking by the Missouri Department of Health and Senior Services which is underway, and implementation of the entire business structure, from growing plants to physician counseling and retail sales, some of which began this week — medical use could begin as soon as late 2019 or early 2020. To assist hospitals in understanding the implications, MHA hosted three webinars for the state’s hospitals — to define challenges posed as providers and employers. The webinars and accompanying slide decks are available on-demand for parties who couldn’t participate live. I strongly encourage hospital leaders to review the materials.
The issue is complicated for various reasons, and given the likelihood of a short implementation window, there’s reason to be cautious. The knowledge that 33 other states have or will implement similar programs provides little comfort.
The good news is that there’s little room for interpretation — the full text of the amendment is quite detailed, and the state’s responsibilities and participants’ rights are delineated. On the less-good side of the ledger, marijuana remains a Schedule I controlled substance under federal and state law.
Where medical marijuana has expanded, it has been decriminalized. However, the disconnect between federal law and state-granted rights could leave providers stuck between patients’ rights and hospitals’ responsibility. Could this result in providers facing the choice of accurately attesting to compliance with federal laws and program rules to practice medicine and operate hospitals while denying a state constitutional right to use medical marijuana?
There are other similar challenges. For example, physicians can’t prescribe medical marijuana; however, a physician may counsel a patient and present the patient with a qualifying diagnosis of a condition. If a hospital-employed physician was restricted from counseling about medical marijuana options or certifying patients as qualifying, could the physician sue the hospital for restricting that practice? If so, how would that affect the hospitals’ ability to comply with federal statutes? There’s more. Technically, whether a physician-patient interaction occurs as an outpatient or inpatient encounter may matter for the sake of whether a physician was prescribing versus diagnosing.
Finally, qualifying individuals are not authorized to use medical marijuana in a public place unless authorized by state or local law. If a hospital wanted to offer physician counseling services related to the qualifying conditions, whether that hospital is considered a public place matters. Alternatively, if hospitals are public places, do the other considerations and obligations under federal law give them the right to prohibit it, or does the new right enshrined in Missouri’s constitution outweigh the prohibitive federal statutes?
Amendment writers’ explicit goal was to protect providers, patients and other participants in the system. And, in November, voters gave citizens with qualifying conditions a new treatment option for some very difficult medical conditions. Since then, we have been engaging the best legal minds to identify the core issues and working with DHSS to optimize the regulations to protect hospitals. Based on today’s MHA board meeting, we will compile resources and a toolkit for our membership.
Medical marijuana now is enshrined in Missouri’s Constitution. It’s not likely to go away. However, the uncertainties included above — and likely more — cannot be easily remedied by lawmakers or rule writers. There are two main options if problems arise — the courts or a vote of the people.
Let me know what you’re thinking.
Herb B. Kuhn
MHA President and CEO
In This Issue
Grassley Outlines Senate Finance Agenda
Mercy Hospitals Springfield Names President
Grassley Outlines Senate Finance Agenda
Staff Contact: Daniel Landon
U.S. Senator Chuck Grassley (R-IA) outlined his agenda as chairman of the U.S. Senate Finance Committee. Grassley, a former chairman of the committee, returned to that role with the retirement of U.S. Senator Orrin Hatch (R-UT). The committee has jurisdiction over many health topics. Grassley’s policy objectives include bipartisan work on prescription drug pricing and supply, rural health care access and workforce, as well as “ensuring hospital payment programs are effective and eliminating duplicative and ineffective payment incentives, including reforming the 340B drug pricing program.” He also plans to address health care consolidation and anti-competitive concerns, fraud and accreditation agency oversight of hospitals and nursing homes.
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