In the face of Ohio’s opioid epidemic that leads the nation in fatal heroin overdoses — an ironic byproduct of addiction to prescription painkillers — does medical marijuana provide a viable alternative for physicians to manage intractable pain and other Qualifying Medical Conditions? The issue remains up in the air.
Ohio’s Medical Marijuana Act (House Bill 523) became effective September 8, 2016. It still has a way to go before becoming fully implemented by the September 8, 2018 deadline. To get there, cultivator/processor rules, testing laboratory rules, dispensary rules, patient/caregiver rules, and physician certificate rules must go through the rule making process by September 8, 2017.
On December 15, 2016, the State Medical Board of Ohio published its proposed draft of physician certificate rules for public comment.1 At the same time, it published the results of a survey to Ohio physicians, asking whether they would recommend medical marijuana to their patients.
Proposed Physician Certificate Rules
The proposed rules require physicians (MDs/DOs) to obtain from the State Medical Board a Certificate to Recommend medical marijuana, defined as cultivated, processed, dispensed, tested, possessed, and used for a medical purpose2, to treat or alleviate 21 enumerated Qualifying Medical Conditions. Qualifying Medical Conditions include (but are not limited to) Alzheimer’s, cancer, glaucoma, MS, chronic and severe or intractable pain, Parkinson’s, epilepsy, and post-traumatic stress syndrome. Doctors also must annually complete two hours of Board-approved CME on medical marijuana.
As proposed, doctors who hold a certification to recommend3 medical marijuana, must: (1) establish a bona fide physician-patient relationship; (2) conduct an in-person physical exam; (3) diagnose the patient with a Qualifying Medical Condition; (4) review the patient’s medical/drug records; (5) obtain an OARRS report over the past 12 months; (6) inform the patient of the risks and benefits of medical marijuana; (7) determine that the benefits of medical marijuana outweigh the risks and may be more effective and beneficial than mainstream conventional drugs and therapies; (8) establish a care plan with ongoing monitoring; and (9) obtain an informed consent from the patient or caregiver. All this must be documented in the patient’s medical record.
Physicians are prohibited from personally furnishing or dispensing medical marijuana or from issuing a recommendation for a family member or the physician’s own use. Physicians also must not have an ownership, investment interest, or compensation arrangement with a medical marijuana cultivator/processor, dispenser, or other related entity. Those who violate these prohibitions not only face cancellation of their Certificate to Recommend, but are also subject to disciplinary action.
Physicians must submit an annual report to the State Medical Board, describing their observations regarding the effectiveness of medical marijuana in treating patients (described in the aggregate) during the year covered by that report.
Physician Survey Results
In September, 2016, the State Medical Board distributed a survey to the 46,000 physicians licensed in Ohio in order to gauge their attitude toward recommending medical marijuana for their patients. Three thousand physicians of those surveyed replied. Only three out of 20 indicated that they would be “highly likely” to recommend medical marijuana. Forty-five percent indicated that they would unlikely recommend medical marijuana to their patients, stating that they need to see more results from peer-reviewed research on efficacy, side-effects, disorder and diversion, OVI data, and mental health events before they would consider recommending medical marijuana.
The smoke needs to clear before Ohio’s medical marijuana law takes effect and physicians are inclined to recommend medical marijuana to their patients.
Joe Feltes is an attorney with Buckingham, Doolittle & Burroughs in Canton OH and a member of its Health & Medicine Practice Group. He is also the managing partner of Buckingham Canton. For more information about the law firm, go to www.bdblaw.com or email Mr. Feltes at JFeltes@BDBLAW.com.
- The Medical Board received numerous comments and articles supporting and opposing the proposed rules.
- Medical marijuana is classified as a schedule II controlled substance.
- In Ohio, doctors technically will only be able to recommend, not prescribe, medical marijuana to patients, because of the Federal Controlled Substances Act.