Do you know how to approach the complex subject of marijuana use in your senior living center? This article will provide an overview of the legalization movement and address policy considerations, resident risk management issues and employment issues.
Adelman Law Firm has expanded to include a Cannabis Law Industry Practice Group to advise and provide legal support to health care providers on legal and operational challenges raised by recreational and medical marijuana use by residents and employees. Please contact me for more information on the issues navigated in this article.
Overview of the Legalization Movement
The legal history of cannabis in the United States began with state-level prohibition in the early 20th century, with the first major federal limitations occurring in 1937. Starting with Oregon in 1973, individual states began to liberalize cannabis laws through decriminalization. In 1996, California became the first state to legalize medical cannabis, sparking a trend that spread to a majority of states by 2016. In 2012, Colorado and Washington became the first states to legalize cannabis for recreational use.
As of 2019, eleven states, two U.S. territories and the District of Columbia have legalized recreational use of cannabis. 35 states, four U.S. territories and D.C. have medical conditions that allow for treatment varying from state to state.
Some Legal Risks for Senior Housing Operators
The Controlled Substances Act (CSA) classifies marijuana as a Schedule I drug, claiming that it has a high potential for abuse and has no acceptable medical use. This means that the cultivation, manufacture, sale, distribution and use of medical cannabis violates the CSA and constitutes a federal felony. This conflict between state and federal law raises many legal questions for residents and health care providers. Without diving too deep into the legal weeds (so to speak), it’s important to understand that pursuant to the Supremacy Clause of the United States Constitution, federal law preempts state law in the occurrence of a conflict. This means that legality under state law cannot impact marijuana’s illegal status under federal law.
The conflicting messages from the Department of Justice (DOJ) on the topic of marijuana enforcement are beyond the scope of this article. I will, however, highlight that in 2014, the Rohrabacher-Farr Amendment was passed and prohibits the DOJ from using funds made available through the federal budget to interfere with any state’s implementation of their own medical marijuana laws that authorize the use, possession or cultivation of medical marijuana. This has not stopped the DOJ from prosecuting marijuana industry companies, yet none of the cases involve senior housing. Case law applying, this amendment suggests that it may offer protection for state-sanctioned programs.
Providers certified by the Centers of Medicare and Medicaid Services (CMS) are subject to Requirements of Participation that require providers to operate and provide services in accordance with all applicable federal and state laws. Because marijuana is classified as a Schedule I controlled substance, that classification renders the manufacture, distribution or possession of marijuana a criminal offense. Therefore, it is CMS’s standpoint that federal law prohibits certified providers from dispensing medical marijuana. CMS has issues no guidance on the medical marijuana.
Some Policy Considerations
The range of policy considerations for senior housing covers complete prohibition to sanctioned self-administration. Also, keep in that each state’s law differs regarding medical and recreational marijuana uses as does the regulations governing assisted living. If your state has legalized medical marijuana use, consider the following when developing your community’s policies and procedures:
Does the community treat a population or particular demographic with a higher rate of medical marijuana use?
Does the community specialize in treating one or more “serious medical conditions” that qualify a patient for medical marijuana in some states (i.e. Alzheimer’s disease, Parkinson’s disease, terminal illness requiring end of life care, severe pain, neuropathy, PTSD and many others)?
Does the institution receive federal funding that could be impacted by permitting the use of medical marijuana? (“Yes” for Medicare-funded skilled nursing.)
What is the facility’s existing human resources policy on a drug free workplace, and does this policy address use of medical marijuana by employees?
Also, I encourage you to review the article in Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life published in the Society for Post-Acute and Long-Term Care Medicine (AMDA) by Zachary J. Palace, MD, CMD and Daniel A. Reingold, MSW, JD for information about demonstrated significant decreases in prescription medication use, most notably a reduction in opioid analgesic usage in older adults utilizing medical cannabis legally.
About Medical Use Policy and Procedures
If your state has a medical marijuana program, you will need to understand the law. We can assist with advising on the state regulations and strategizing about what’s best for your community. If you choose to implement a medical marijuana policy and procedure, here are some points:
The Hebrew Home at Riverdale, a 735 bed skilled nursing facility located outside of New York City (New York legalized medical cannabis in 2014), developed a program that enables residents to access medical cannabis under New York State law, while the institution itself remains compliant with federal law.
To remain compliant with federal law, the institution cannot purchase or store medical cannabis, although the home provides residents with individual lock boxes to store their cannabis medicine. Residents must purchases their cannabis medicine on their own from a state certified dispensary. For those who cannot travel, the New York certified Vireo dispensary offers Skype consultations and free delivery.
Residents must also self administer their medicine or have it administered by a caregiver who is not on the Hebrew Home staff. Because the Hebrew Home is a nonsmoking facility, only orally administered medications (capsules or tinctures) are permitted.The Washington Health Care Association has also published a sample medical marijuana policy that requires each patient to designate a “provider” who will bring medical marijuana product into the facility, administer the medication and then remove the unused product. The policy also states that staff will not assist residents in obtaining or using medical marijuana, store medical marijuana or ensure that medical marijuana is being used appropriately. Staff involvement is to be limited to confirming a resident’s status as a qualified medical marijuana user and ensuring that the use of medical marijuana does not impact any other resident. Should a designated provider or resident fail to follow the policy, the facility reserves the right to enforce appropriate consequences, including discharge from the facility.
The Minnesota Hospital Association has published three different policy templates for medical marijuana use, which offer health care providers a range of options for handling medical marijuana use.
Each organizations’ policies will be different and custom designed for compliance with federal and state laws and regulations and best practices.
Derived from our work with health care clients and the various senior housing communities that have created and implemented marijuana use policies and procedures (note that there will be different policies for each senior housing setting), here are a few takeaways:
Complete an initial assessment of all existing policies and procedures (including employment/HR policies) and determine what impact implementation of a marijuana policy may have on other policies for possible revisions.
Provide education materials, state and federal guideline information to residents, families those who will be administering/delivering to the resident and expectations management.
Prohibit smoking marijuana at the community, and create a policy that allows the use of marijuana in other forms.
Include the policy in the admissions process with an acknowledgement that the resident/personal representation has reviewed and understands the policy.
The Resident Assessment and Comprehensive Person-Centered Care Planning are keys to the success of a marijuana policy. Establishing the Baseline Care Plan implemented in Phase 2 of the Final Rule and proper interventions for clinical risks identified (falls, wandering, dysphagia, etc.) will mitigate risks.
Incorporate policies related to wheelchair, scooter or other motorized devices into the marijuana policy (no driving while under the influence – similar to an alcohol policy).
Specifically create policies to include the administration and storage of marijuana.
Consider Negotiated Risk Agreements if they are enforceable in your state.
Carefully evaluate management laws in your state and the federal laws as they relate to the use of marijuana in the workplace. The Americans with Disabilities Act (ADA), the Drug Free Workplace Act the Federal Employees’ Compensation Act (FECA) (Worker’s Compensation) and the Family and Medical Leave Act (FMLA), among other federal laws, state statutes and regulations, have a direct impact on employment decisions.
Now What?
The probability is that there is some cannabis product being used in senior housing communities in states that have legalized medical marijuana. The risk to long term care providers who receive federal funding is real, and there are many unanswered questions. Patient rights, compliance with conflicting state and federal law, your company’s mission, vision and operational strategies, treatment options for medical conditions and many more areas should be explored by your organization to determine if and how cannabis policies will be created and implemented.
Also, please save the dates of April 21-22, 2020 for the 8th Annual National Long-Term Care Defense Summit! 2019 was amazing. Look forward to education, networking and fun in New York City in 2020! You’ll love the Parker Hotel and the penthouse Estrela conference room with 360 degree views of the city and Central Park. Please plan to join us! For more information, please contact me at rebecca@adelmanfirm.com.
Rebecca Adelman is an entrepreneur, influencer, thought leader and founder of Adelman Law Firm, a Women’s Business Enterprise National Council (WBENC) certified Women Business Enterprise (WBE), established in 2001. For nearly 30 years, Rebecca has concentrated her practice in insurance defense and business litigation. The firm’s practice extends through the tri-states of Arkansas, Mississippi and Tennessee. Rebecca’s insurance defense practice includes representation of insurance companies and long term care providers and their insurers, both regionally and nationally. She also provides consulting services and educational programming to health care professionals and business associates. She has active practices in the areas of general liability, professional liability, premises and employment law. She is a listed mediator serving all areas of business and health care litigation. Contact Rebecca at rebecca@adelmanfirm.com, and visit www.adelmanfirm.com and www.rebeccaadelman.com.
