Medical Marijuana in Maryland Workers Compensation Claims White Paper

Medical Marijuana in Maryland Workers Compensation Claims

Medical marijuana will become a frequent issue in Maryland Workers Compensation cases now that it has been legalized by the Maryland legislature. The purpose of this article is to argue for the approval of medical marijuana as a medicine or treatment in certain workers compensation cases. This article will first review available law out side of Maryland both at the federal and state level and then review relevant Maryland law. Finally, this article will give a good summary of the Maryland Medical Marijuana law and the rights provided as well as the protections to avoid abuse.

The next two paragraphs explain the current state of the law in other states as well as with the Federal government. The first article is entitled Work Comp Insights and was published by The Insurance Exchange Medical Marijuana and Workers’ Compensation

In the November 2016 elections, the use of medical marijuana was approved through four state ballot measures, bringing the total to 28 states and the District of Columbia that have legalized medical marijuana in some form. Additionally, the District of Columbia and eight states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington—have legalized recreational use of marijuana in some form.

However, under the Controlled Substance Act of 1970, marijuana is classified as a Schedule I substance with no accepted medical use and a high potential for abuse, making it illegal at the federal level.

As such, the future of medical marijuana in workers’ compensation remains unclear, and state and federal lawmakers have their own opinions.

States’ Stances

While states have different views on the use of medical marijuana, there are various state rulings that may be setting a new precedent in the workers’ compensation and medical marijuana debate

New Mexico

On January 13, 2015, the New Mexico Court of Appeals reversed the decision of the Workers Compensation board that found payment for medical marijuana did not constitute reasonable and necessary medical care, as the claimant tested positive prior to the treating doctor authorizing use. In the case of Maez v. Riley Industrial, 33, 154 (N.M. Ct. App. 2015), the Court of Appeals found that the “compassionate use” law allows for the use of medical marijuana to be treated as a “functional equivalent of a prescription,” that it was “reasonable and necessary medical care,” and ruled it was to be paid for under the New Mexico Workers Compensation system.

The New Mexico Court of Appeals also affirmed the Workers Compensation board decision to direct payment for medical marijuana in the case of Vialpando v. Ben’s Automotive Services and Redwood Fire Casualty, No. 32,920 (N.M. Ct. of Appeals 5/19/14), which is believed to be the first workers compensation case that allowed benefits to pay for medical marijuana.

New Mexico became the first state to propose a reimbursement rule for medical marijuana in November 2015. The state’s 2016 fee schedule set the maximum reimbursement rate for medical marijuana at $12.02 per gram for injured workers. Under the state’s Lynn and Erin Compassionate Use Act, authorization was considered equivalent to a prescription—requiring

employers to reimburse injured workers for medical marijuana. Furthermore, this process allowed insurance carriers to avoid directly paying for a Schedule I substance.

Minnesota

In 2015, Minnesota’s health commissioner decided to include “intractable” pain as a condition that could be treated with medical marijuana. According to the Minnesota Department of Health, intractable pain is defined as, “pain whose cause cannot be removed and, according to generally accepted medical practice, the full range of pain management modalities appropriate for this patient has been used without adequate result or with intolerable side effects.” This decision has opened the door for claimants to request that their workers’ compensation insurers cover the cost for medical marijuana.

Maine

The outcome in a workers’ compensation case involving medical marijuana was different than those in New Mexico and Minnesota, when an employee who sustained a back injury while making deliveries requested reimbursement for medical marijuana. According to Maine’s Workers’ Compensation Act of 1992 (MWCA), “an injured worker is entitled to reasonable and proper medical, surgical, and hospital services, nursing, medicines, and mechanical and surgical aids, as needed, paid for by the employer.” However, the employer argued that medical marijuana-related services should not be covered under the MWCA, and that by covering such services, the employer would be in violation of federal law and subject to the risks of prosecution. In support of its argument, the employer also cited Maine’s medical marijuana statute, which states that it may not be construed to require a government medical assistance program or private health insurer to reimburse an individual for costs associated with the medical use of marijuana. The employer won the case.

Other states, including Arizona and Montana, are in agreement with Maine and have taken the position that a workers’ compensation insurance carrier cannot be compelled to pay for medical marijuana because the possession and use of marijuana is still illegal under federal law.

Federal Opinion

Workers’ compensation payers rely on evidence-based guidelines when making treatment decisions. Since medical marijuana is considered a Schedule I substance and is not included any workers’ compensation treatment guidelines, many payers are opting to deny coverage.

Benefits of Covering Medical Marijuana

There is significant interest in using medical marijuana as an alternative to opiates for the management of chronic pain. Furthermore, alternative treatments may pave the way for medical marijuana, as meditation, exercise, mindfulness, yoga and cognitive behavioral therapy have proven successful in eliminating opioid use. However, insurers have historically been more likely to pay for opioids than alternative treatments.

Drawbacks of Covering Medical Marijuana In states that have legalized medical or recreational marijuana, workplace safety is a concern. It is the employer’s responsibility to foster an environment devoid of harmful hazards. If a company employs a medical marijuana user, this person might experience side effects that could lead to a workplace injury.

Furthermore, drug-free workplace policies could be affected since marijuana continues to be categorized as a Schedule I substance. For example, although an employee may be authorized to use medical marijuana, he or she could still be terminated if found positive for marijuana in a random drug test.

Federal Outlook

It’s too early to anticipate President Donald Trump’s official policies with regards to medical marijuana. However, on the campaign trail, he said he was in favor of rescheduling marijuana as a Schedule II substance. New legislation and court decisions are continuing to develop, which will affect workers’ compensation treatment decisions. For example, on Aug. 29, 2013, the ”

Department of Justice published a memorandum authored by former Deputy Attorney General James Cole, outlining a new set of priorities for federal prosecutors operating in states which had legalized the use of marijuana. The “Cole memo” encouraged law enforcement agencies to focus on the most critical federal priorities, such as preventing the distribution of marijuana to minors. By doing so, the federal government is taking a more hands-off approach in jurisdictions that have enacted laws legalizing marijuana.

Also protecting the marijuana industry is the Rohrabacher-Farr amendment, which prohibits the federal government from spending money to target medical marijuana businesses. However, the federal government could still go after small businesses that don’t have the resources to fight. And if this amendment isn’t renewed by Congress annually, the protection will disappear, and the industry could be set back for years.

The second article provides additional insight on other states not included in the first article.The article is entitled The Impact of Marijuana Legalization

on Workers Compensation By Jack Green and Patricia Ostrowski  June 2015 published by Integra. Excerpts of the article include:

Arizona – HB 2541 was presented on January 28, 2015 and signed by Governor Ducey on April 6, 2015. The bill updates Arizona’s “Medical Marijuana Act” adding workers compensation insurers and self-insured employers as entities that will not be required to pay for medical marijuana.

Iowa – Marijuana is not legal in the state of Iowa. A claimant was injured in Iowa and later moved to Oregon where a doctor prescribed medical marijuana for the injury related to the workers compensation claim. The Iowa Workers Compensation Commission found that the cost of the marijuana was compensable and ordered it paid (Mary McKinney v. Labor Ready and ESIS Inc. No: 5005302), despite Oregon law stating, “Nothing in the Medical Marijuana Act shall be construed to require a governmental medical assistant program or private health insurer to reimburse a person for costs associated with medical use of marijuana.”

Michigan – A federal court affirmed a district court decision that found an employer had the right to terminate an employee who tested positive for marijuana even though the claimant had a registry card and the use was after a compensable workers compensation injury (Casias v. Wal-Mart Stores Inc., 764 F. Supp 2d914 (2011).

How Marijuana Legalization Complicates Compensation Claims

Marijuana can stay in a person’s system for up to 30 days. Unlike alcohol, it is currently very difficult to prove impairment. If the impairment is confirmed, it would have to be the proximate cause of the accident.

In addition, there is no formal way to bill for marijuana, no usual and customary charge, no fee schedule, and no pricing guidelines. The lack of formal billing codes prevents drug utilization reviews usually performed by pharmacy systems to ensure patient safety. The Centers for Medicare and Medicaid Services (CMS) will not review the costs of marijuana when considering Medicare Set-Asides (MSA) since it is federally banned. The MSA providers are starting to include the costs in their calculations, but CMS still considers it a non-Medicare payment.

A debate within the medical community continues as to whether medical marijuana is effective in treating patients. It is also unknown how medical marijuana may inhibit an injured worker’s return to work.

Conclusion

The speed at which states have legalized the use of marijuana and the fact that workers compensation systems are paying for the medical use of marijuana, leads us to expect that marijuana use will eventually be legalized nationwide. The overuse of prescription pain medication and its associated complications begs a solution, and medical marijuana may provide an alternative treatment. However, mainstream use of medical marijuana will occur only when the FDA is able to regulate it for quality, dosage and strength. Along with FDA approval, influence and impairment ratings will have to be implemented, as well as tests akin to those used for alcohol impairment.

Labor and Employment Article of the Annotated Code of Maryland 9-660. Provides the authority for provision of medical services and treatment

(a) In general. — In addition to the compensation provided under this subtitle, if a covered employee has suffered an accidental personal injury, compensable hernia, or occupational disease the employer or its insurer promptly shall provide to the covered employee, as the Commission may require:

(1) medical, surgical, or other attendance or treatment;

(2) hospital and nursing services;

(3) medicine;

(4) crutches and other apparatus; and

(5) artificial arms, feet, hands, and legs and other prosthetic appliances. Labor and Employment Article of the Annotated Code of Maryland 9-660

Medical marihuana would appear to fit the definition of either medicine or medical treatment.

The purpose of the Workers Compensation Act was “to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment,” Howard Co. Ass’n, Retard. Cit. v. Walls,288 Md. 526, 531, 418 A.2d 1210 (1980), and “to promote the general welfare of the State and to prevent the State and its taxpayers from having to care for injured workmen and their dependents, when under the law as it previously existed, such workmen could not recover damages for their injuries.” Paul v. Glidden Co., 184 Md. 114, 119, 39 A.2d 544, 546 (1944). Breitenbach v. N.B. Handy Co., 366 Md. 467, 474, 784 A.2d 569 (2001).

In Breitenbach, the Court of Appeals stated that, when interpreting the Maryland Workers’ Compensation Act, a court should keep in mind that “the Act is remedial in nature and `should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.'” Id. at 472, 784 A.2d 569 (quoting Para v. Richards Group, 339 Md. 241, 251, 661 A.2d 737 (1995)). “[A]pplying a canon of construction specific to the Act, if the intent of the legislature is ambiguous or remains unclear, we resolve any uncertainty in favor of the claimant.” Id. at 473, 784 A.2d 569. Breitenbach v. N.B. Handy Co., 366 Md. 467, 474, 784 A.2d 569 (2001).

Therefore ambiguity of whether a medical service or treatment falls within the statute is resolved in favor of the claimant. Breitenbach v. N. B. Handy Co., 366 Md. 467 (2001).

In  Simmons v. Comfort Suites Hotel 185 Md App. 203, 968 A.2d.1123 (2009) involved installation of an alarm system to allay the post-traumatic fears of a robbery victim a cognizable medical expense under Maryland’s Workers’ Compensation law.

The Maryland Court of Special Appeals ruled “This Court has interpreted this statute as dealing “with medical services necessary or desirable to treat the effects of the injury….” Harris v. Janco Enter., 53 Md.App. 674, 677, 455 A.2d 453 (1983).[1]The question here focuses on the scope of § 9-660(a)(1), and whether a home security system can be considered to be medical treatment under the statute.[2]Ms. Simmons argues that there is evidence from her doctor that she needs a home security system to help her recover from her injuries, and, under these circumstances, the “installation of an alarm system to allay the post-traumatic fears of a robbery victim” is medical treatment under the statute.

Comfort Suites makes no argument that medical treatment to allay the psychological effects of an injury falls outside the 1129*1129 scope of medical treatment under the statute. See Belcher v. T. Rowe Price, 329 Md. 709, 745-46, 621 A.2d 872 (1993) (mental injury may be compensable under Workers’ Compensation Act.) Accord RICHARD P. GILBERT & ROBERT L. HUMPHREYS, JR., MARYLAND WORKERS’ COMPENSATION HANDBOOK § 10.3 (3d ed. 2007) (“Claims for psychiatric treatment” have been held compensable as medical treatment.). Indeed, during oral argument in this Court, counsel for Comfort Suites conceded that if, instead of a home security system to reduce anxiety and insomnia, a doctor had recommended medication for this purpose, it would be covered under the statute. Comfort Suites argues, however, that a home security system, as a matter of law, is not medical treatment as contemplated by the statute, and therefore, the circuit court properly granted its motion for summary judgment.

As explained below, we reverse the circuit court’s order granting summary judgment in favor of Comfort Suites based on its finding that a home security system, as a matter of law, does not constitute medical treatment under § 9-660(a)(1). We recognize that a home security system typically is not viewed as a form of medical treatment. The Maryland Court of Appeals, however, has found that items that are not intrinsically medical in nature could constitute medical treatment if there is evidence that the item conveys a medical benefit. Thus, the question whether a home security system constitutes compensable medical treatment pursuant to § 9-660(a)(1) is a factual question to be resolved on the evidence in each particular case.

Under the unique circumstances of this case, where the claimant was brutally attacked, where she suffered both physical and mental disability as a result of the attack,[3] and where her treating neuropsychologist recommended a home security system to improve her medical condition by reducing her anxiety and resulting insomnia, the trier of fact could find that a home security system constituted medical treatment pursuant to the statute.

We find another portion of the opinion in Judge to be more applicable to the issue presented here, i.e., whether a device or service that is not inherently medical in nature can qualify as medical treatment if it conveys a medical benefit. In Judge, the claimant requested, in addition to home modifications, that his employer pay for the cost of heating and air conditioning in his residence. Id. at 521-22, 594 A.2d 99. Judge argued that the employer should pay part of the cost because his injury resulted in a lack of normal body temperature controls and a limited tolerance to temperature change. Id. The Court of Appeals held: “On this record the Commission could find that the air conditioning is medical treatment.” Id. at 522, 594 A.2d 99.[6] Thus, that an air conditioner is not typically viewed as medical treatment did not, as a matter of law, preclude it from constituting medical treatment under the facts of the case.

Other jurisdictions similarly have held that devices and services that are not inherently medical in nature may, under the circumstances of a particular case, constitute medical benefits under the Workers’ Compensation statute. See, e.g., Bellone v. Indus. Claim Appeals Office, 940 P.2d 1116, 1117 (Colo.Ct.App.1997)(child care expenses covered as medical treatment; services “medical” in nature because they relieved the symptoms and effect of the injury and allowed claimant to deal with fatigue, depression, and other symptoms resulting from serious head trauma); City & County of Denver v. Indus. Comm’n, 682 P.2d 513, 515 (Colo.Ct.App.1984) (hot tub found to be medical supply based on medical testimony regarding significant benefit to claimant); Haga v. Clay Hyder Trucking Lines, 397 So.2d 428, 432 (Fla. Dist.Ct.App.1981) (swimming pool with handicapped facilities found medically necessary where prescribed by severely burned claimant’s physicians), pet. denied, 402 So.2d 609 (Fla.1981); State ex rel. Miller v. Industrial Comm’n, 71 Ohio St.3d 229, 643 N.E.2d 113, 115-16 (1994)(weight-loss program covered as medical services if it aids in recovery of compensable injury); In re Comp. of Gordon, 60 Or.App. 361, 653 P.2d 1019, 1020 (1982) (doctor-prescribed waterbed, “for correction of low back condition,” covered under statute providing for “medical services”); ARA Servs. and Reliance Ins. Co. v. Swift, 22 Va.App. 202, 468 S.E.2d 682, 684-85 (1996) (home exercise station compensable when prescribed by physician as medically necessary to remedy effects of injury).

In New York, the Worker’s Compensation Statute requires an employer to pay for “medical … or other attendance or treatment … as the nature of the injury or the process of recovery may require.” N.Y. WORKERS’ COMP. LAW § 13(a) (2009). New York courts have construed this statute broadly to cover expenses necessary to aid in the recovery of the claimant or to relieve the symptoms of the injury, even if the “treatment” is not inherently medical in nature.

In Morrell v. Onondaga County, 244 A.D.2d 695, 664 N.Y.S.2d 168 (1997), a claimant who suffered from chronic sinusitis and upper airway irritation caused by work-related exposure to formaldehyde requested that her employer pay for items recommended by her doctor to lessen her symptoms. Id. at 169. The claimant’s doctor recommended: organic food, to prevent exposure to irritating chemicals in conventional food products; an air filtration system, to remove irritants from her environment; and vitamin supplements, to 1134*1134 improve the claimant’s suppressed immune system. Id. at 170. The court held that, under the circumstances of the case, these items were compensable under the statute.

Similarly, in Clark v. Fedders-Quigan Corp., 284 A.D. 430, 131 N.Y.S.2d 575, 576-77 (1954), the issue was whether travel expenses for a trip to Florida constituted medical treatment under the statute. The doctor for the claimant, who was disabled by emphysema, recommended a trip to a warmer climate to relieve the claimant’s symptoms. Id. at 577. The court declined to rule, as a matter of law, that these expenses were not covered by the statute. Id. Noting that there was nothing in the statute that restricted a liberal interpretation of the term medical treatment, the court stated that “whether a change of climate advised by a physician is medical treatment within the meaning of the statute becomes in each instance a question of fact.” Id.

We agree with this approach. We hold that the determination whether a device or service constitutes medical treatment under the statute should not be based, as a matter of law, on whether the device or service is inherently medical in nature. Rather, where there is a recommendation from a medical professional that a device or service be provided because it will provide therapeutic medical relief from the effects of the injury, the determination whether it is compensable medical treatment is a question of fact that should be determined under the circumstances of the particular case.”

The Maryland Legislature has legalized medical marihuana for the following conditions that would be relevant to workers compensation injuries.

The conditions which are authorized to be treated by medical marihuana are listed in the statute. approve provider applications for the following medical conditions:

(i)  A chronic or debilitating disease or medical condition that results in a patient being admitted into hospice or receiving palliative care; or

(ii)  A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease or medical condition that produces:

  1. Cachexia, anorexia, or wasting syndrome;
  2. Severe or chronic pain;
  3. Severe nausea;
  4. Seizures; or
  5. Severe or persistent muscle spasms. Md. Health-General Code Ann. Section 13-3304 (d),

 

(3) Have the following diseases and conditions:

(b) Post traumatic stress disorder (PTSD). Code of Maryland Regulations 10.62.03.01 (B)

  1. A physician may be registered as a certifying physician to treat a patient who has a condition that is:

(1) Severe;

(2) For which other medical treatments have been ineffective; and

(3) If the symptoms reasonably can be expected to be relieved by the medical use of cannabis. Code of Maryland Regulations 10.62.03.01 ( C )

The Maryland Medical marihuana statute has many safeguards in order to protect the patient, the public, and the entity paying for the service including insurance companies or government. While the Maryland Medical marihuana statute is silent on the issue of third party payments, because of the safeguards existing workers compensation law is broad enough to include such treatment or medication. A summary of the relevant Maryland Medical marihuana law follows next.

Must be 18 years of age or older to obtain on your own without a guardian (Md. Health-General Code Ann. Section 13-3301(b)

If 18 or older patient can designate a caregiver who is 21 years old or older who has agreed to assist with a qualifying patient’s medical use of medical cannabis. Code of Maryland Regulations 10.62.01.01

If under 18, then you may obtain medical marihuana but need a caregiver -parent or legal guardian who has agreed to assist with a qualifying patient’s medical use of cannabis. Md. Health-General Code Ann. Section 13-3301 (b), Code of Maryland Regulations 10.62.01.01

In order to become a caregiver, an application must be made with the Natalie M. LaPrade Medical Cannabis Commission . Upon being designated a caregiver by a qualifying patient, a caregiver shall:

(1) Apply to the Commission for an identification card; and provide An attestation that the caregiver is not the caregiver for more than five qualifying patients; Code of Maryland Regulations 10.62.06.02

Can only get this prescribed by a certifying provider which are limited to a physician, dentist, podiatrist , nurse practitioner or nurse midwife actively licensed and in good standing with their professional board and who has a State controlled dangerous substances registration and is registered with the Natalie M. LaPrade Medical Cannabis Commission to make cannabis available to patients for medical use. 13-3301(c)

Must be a Qualifying patient” means an individual who:

(1)  Has been provided with a written certification by a certifying provider in accordance with a bona fide provider-patient relationship; and

(2)  If under the age of 18 years, has a caregiver. 13-3301(m)

In addition to be a Qualifying patient” means an individual who:

(a) Lives in the State or, during that time an individual is present in the State, is physically present in the State for the purpose of receiving medical care from a medical facility in the State;

(b) Has been provided with a written certification by a certifying physician in accordance with a bona fide physician-patient relationship; and

(c) If younger than 18 years old, has a caregiver. Code of Maryland Regulations 10.62.01.01  (25)

The certifying provider (medical person) must register with the Natalie M. LaPrade Medical Cannabis Commission as a certifying provider for each patient and submit the following:

a provider shall submit a proposal to the Natalie M. LaPrade Medical Cannabis Commission that includes:

(1)  The reasons for including a patient under the care of the provider for the purposes of this subtitle, including the patient’s qualifying medical conditions;

(2)  An attestation that a standard patient evaluation will be completed, including a history, a physical examination, a review of symptoms, and other pertinent medical information; and

(3)  The provider’s plan for the ongoing assessment and follow-up care of a patient and for collecting and analyzing data. Md. Health-General Code Ann. Section 13-3301 (a) and (b) Md. Health-General Code Ann. Section 13-3304 (b),

The provider must:

(3) “Bona fide physician-patient relationship” means a treatment or counseling relationship between a physician and a patient in which the physician has:

(a) Reviewed the patient’s relevant medical records and completed an in person assessment of the patient’s medical history and current medical condition;

(b) Created and maintained records of the patient’s condition in accord with medically accepted standards; and

(c) A reasonable expectation that the physician will monitor the progress of the patient while using medical cannabis and take any medically indicated action:

(i) To provide follow-up care to the patient;

(ii) Regarding the efficacy of the use of medical cannabis as a treatment of the patient’s severe or debilitating medical condition; and

(iii) Regarding any adverse event associated with the use of medical cannabis. Code of Maryland Regulations 10.62.01.01  (3)

The conditions which are authorized to be treated by medical marihuana are listed in the statute. approve provider applications for the following medical conditions:

(i)  A chronic or debilitating disease or medical condition that results in a patient being admitted into hospice or receiving palliative care; or

(ii)  A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease or medical condition that produces:

  1. Cachexia, anorexia, or wasting syndrome;
  2. Severe or chronic pain;
  3. Severe nausea;
  4. Seizures; or
  5. Severe or persistent muscle spasms. Md. Health-General Code Ann. Section 13-3304 (d),

(3) Have the following diseases and conditions:

(a) Glaucoma; or

(b) Post traumatic stress disorder (PTSD). Code of Maryland Regulations 10.62.03.01 (B)

  1. A physician may be registered as a certifying physician to treat a patient who has a condition that is:

(1) Severe;

(2) For which other medical treatments have been ineffective; and

(3) If the symptoms reasonably can be expected to be relieved by the medical use of cannabis. Code of Maryland Regulations 10.62.03.01 ( C )

There may be other conditions that the medical provider may feel are appropriate and the procedure to get those approved is provided in the law.)  Approval for other conditions permitted.  The Natalie M. LaPrade Medical Cannabis Commission may approve applications that include any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis. Md. Health-General Code Ann. Section 13-3304 (e),

The Natalie M. LaPrade Medical Cannabis Commission shall conduct a public hearing to evaluate any petition to consider other medical conditions, medical treatments, or diseases that may be treated by using medical cannabis and included in certifying physician applications. Code of Maryland Regulations 10.62.07.02

As part of the written certification from the certifying provider for each qualifying patient, the certifying provider must submit to the Natalie M. LaPrade Medical Cannabis Commission:

(f) Plan to assess patient outcomes, provide follow-up care, and to collect and analyze data;

(2) An attestation that the:

(a) Physician’s Maryland license to practice medicine is active, unrestricted, and in good standing;

(b) Physician is registered to prescribe controlled substances by the State; and

(c) A standard patient evaluation will be completed and include:

(i) A history;

(ii) A physical examination;

(iii) A review of symptoms; and

(iv) Any other pertinent medical information;

(3) The medical conditions for which the physician may issue written certifications for medical cannabis;

(4) The physician’s other inclusion criteria; and

(5) The reasons the physician may deny issuing a written certification of medical cannabis. Code of Maryland Regulations 10.62.03.01 (a) (2)

10.62.05.01

.01 Issuing a Written Certification.

  1. A certifying physician may determine that a patient qualifies for a written certification only:

(1) If the qualifying patient has registered with the Commission;

(2) For whom the certifying physician has a bona fide physician-patient relationship;

(3) If the qualifying patient meets the certifying physician’s inclusion criteria;

(4) If the qualifying patient does not meet the certifying physician’s exclusion criteria; and

(5) If the certifying physician has determined that the potential benefits of the medical use of cannabis likely outweigh the health risks for the patient.

  1. The certifying physician shall:

(1) Log onto the website of the Commission to transmit the written certification to the Commission; and

(2) If requested, provide a copy of the written certification to the qualifying patient.

  1. A written certification shall include the:

(1) Physician’s name, Maryland Board of Physicians license number, and office telephone number;

(2) Qualifying patient’s name, date of birth, address, and county of residence;

(3) Medical condition requiring medical cannabis; and

(4) The date of qualification as a qualifying patient.

  1. A written certification may contain, if applicable, a written statement certifying that, in the physician’s professional opinion, a 30-day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.
  2. A certifying physician may discuss the use of medical cannabis with a patient.
  3. A certifying physician shall terminate a written certification if:

(1) The qualifying patient meets the physician’s exclusion criteria;

(2) Treatment with medical cannabis is no longer necessary for the qualifying patient;

(3) Adverse effects of medical cannabis outweigh the benefits to the qualifying patient’s health; or

(4) There is evidence that the qualifying patient engaged in diversion of medical cannabis.

  1. A certifying physician may terminate a written certification if the qualifying patient demonstrates abuse of any substance of abuse.
  2. A certifying physician shall notify the Commission within 1 business day of the termination of a written certification.
  3. A qualifying patient shall have only one certifying physician at any time. Code of Maryland Regulations 10.62.05.01

On receipt by the Natalie M. LaPrade Medical Cannabis Commission of a written certification from the certifying provider, the Natalie M. LaPrade Medical Cannabis Commission shall issue an identification card to each qualifying patient or caregiver named in the written certification. Md. Health-General Code Ann. Section 13-3302 ( d ) Md. Health-General Code Ann. Section 13-3304 (g),,

After submission by the certifying provider to the Natalie M. LaPrade Medical Cannabis Commission and receipt by the certifying provider of the written certification, the patient will receive from a certifying provider a written certification (Md. Health-General Code Ann. Section 13-3304 (g)) which is similar to a prescription that you would receive from a doctor for most regulated drugs. (n)  Written certification.  “Written certification” means a certification that:

(1)  Is issued by a certifying provider to a qualifying patient with whom the provider has a bona fide provider-patient relationship; and

(2)  Includes a written statement certifying that, in the provider’s professional opinion, after having completed an assessment of the patient’s medical history and current medical condition, the patient has a condition:

(i)  That meets the inclusion criteria and does not meet the exclusion criteria of the certifying provider’s application; and

(ii)  For which the potential benefits of the medical use of cannabis would likely outweigh the health risks for the patient; and

(3)  May include a written statement certifying that, in the provider’s professional opinion, a 30-day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.Under this section the provider can limit the amount the patient can obtain to a thirty day supply or can increase the amount if he feels it will be inadequate. Md. Health-General Code Ann. Section 13-3301 (n),

The law defines a 30 day supply. (35) “30-day supply” means:

(a) 120 grams of usable cannabis unless the physician determines this amount would be inadequate to meet the medical needs of the qualifying patient; or

(b) In the case of a medical cannabis-infused product, 36 grams of ?9-Tetrahydrocannabinol (THC) unless the physician determines this amount would be inadequate to meet the medical needs of the qualifying patient. Code of Maryland Regulations 10.62.01.01 (35)

A qualifying patient or caregiver may obtain medical cannabis only from a medical cannabis grower licensed by the Natalie M. LaPrade Medical Cannabis Commission  or a dispensary licensed by the Natalie M. LaPrade Medical Cannabis Commission. Md. Health-General Code Ann. Section 13-3304 (g),

The following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of cannabis:

(1)  A qualifying patient:

(i)  In possession of an amount of medical cannabis determined by the Commission to constitute a 30-day supply; or

(ii)  In possession of an amount of medical cannabis that is greater than a 30-day supply if the qualifying patient’s certifying provider stated in the written certification that a 30-day supply would be inadequate to meet the medical needs of the qualifying patient;

(3)  A certifying provider;

(4)  A caregiver;

(b)  Penalty for distributing, possessing, manufacturing, or using cannabis diverted from approved program. —

(1)  A person may not distribute, possess, manufacture, or use cannabis that has been diverted from a qualifying patient, a caregiver, a licensed grower, or a licensed dispensary.

(2)  A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 10,000 or both.

(3)  The penalty under this subsection is in addition to any penalties that a person may be subject to for manufacture, possession, or distribution of marijuana under the Criminal Law Article. Md. Health-General Code Ann. Section 13-3313

The actual Maryland annotated code sections are reproduced below. The above article is based upon a summary of the code below

Md. Health-General Code Ann. Section 13-3301

(a)  In general. —  In this subtitle the following words have the meanings indicated.

(b)  Caregiver. —  “Caregiver” means:

(1)  A person who has agreed to assist with a qualifying patient’s medical use of cannabis; and

(2)  For a qualifying patient under the age of 18 years, a parent or legal guardian.

(c)  Certifying provider. —  Can be a Physician, dentist, podiatrist and or a nurse practitioner or nurse midwife. “Certifying provider” means an individual who:

(1)  (i) 1. Has an active, unrestricted license to practice medicine that was issued by the State Board of Physicians under Title 14 of the Health Occupations Article; and is in good standing with the State Board of Physicians;

(ii) Has an active, unrestricted license to practice dentistry that was issued by the State Board of Dental Examiners under Title 4 of the Health Occupations Article; and is in good standing with the State Board of Dental Examiners;

(iii) Has an active, unrestricted license to practice podiatry that was issued by the State Board of Podiatric Medical Examiners under Title 16 of the Health Occupations Article; and is in good standing with the State Board of Podiatric Medical Examiners; or

(iv) Has an active, unrestricted license to practice registered nursing and has an active, unrestricted certification to practice as a nurse practitioner or a nurse midwife that were issued by the State Board of Nursing under Title 8 of the Health Occupations Article; and is in good standing with the State Board of Nursing;

(2)  Has a State controlled dangerous substances registration; and

(3)  Is registered with the Commission to make cannabis available to patients for medical use in accordance with regulations adopted by the Natalie M. LaPrade Medical Cannabis Commission established under this subtitle.

(e)  Dispensary. —  “Dispensary” means an entity licensed under this subtitle that acquires, possesses, processes, transfers, transports, sells, distributes, dispenses, or administers cannabis, products containing cannabis, related supplies, related products containing cannabis including food, tinctures, aerosols, oils, or ointments, or educational materials for use by a qualifying patient or caregiver.

(m)  Qualifying patient. —  “Qualifying patient” means an individual who:

(1)  Has been provided with a written certification by a certifying provider in accordance with a bona fide provider-patient relationship; and

(2)  If under the age of 18 years, has a caregiver.

(n)  Written certification. —  “Written certification” means a certification that:

(1)  Is issued by a certifying provider to a qualifying patient with whom the provider has a bona fide provider-patient relationship; and

(2)  Includes a written statement certifying that, in the provider’s professional opinion, after having completed an assessment of the patient’s medical history and current medical condition, the patient has a condition:

(i)  That meets the inclusion criteria and does not meet the exclusion criteria of the certifying provider’s application; and

(ii)  For which the potential benefits of the medical use of cannabis would likely outweigh the health risks for the patient; and

(3)  May include a written statement certifying that, in the provider’s professional opinion, a 30-day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.

Md. Health-General Code Ann. Section 13-3302

(a)  In general. —  There is a Natalie M. LaPrade Medical Cannabis Commission.

(c)  Purpose. —  The purpose of the Commission is to develop policies, procedures, guidelines, and regulations to implement programs to make medical cannabis available to qualifying patients in a safe and effective manner.

(d)  Development of identification cards. —

(1)  The Commission shall develop identification cards for qualifying patients and caregivers.

(2)

(i)  The Department shall adopt regulations that establish the requirements for identification cards provided by the Commission.

Md. Health-General Code Ann. Section 13-3304- certifying providers

(a)  Registration by Commission. —  The Commission shall register as a certifying provider an individual who:

(1)  Meets the requirements of this subtitle; and

(2)  Submits application materials that meet the requirements of this subtitle.

(b)  Proposal to Commission. —  To be registered as a certifying provider, a provider shall submit a proposal to the Commission that includes:

(1)  The reasons for including a patient under the care of the provider for the purposes of this subtitle, including the patient’s qualifying medical conditions;

(2)  An attestation that a standard patient evaluation will be completed, including a history, a physical examination, a review of symptoms, and other pertinent medical information; and

(3)  The provider’s plan for the ongoing assessment and follow-up care of a patient and for collecting and analyzing data.

(c)  Additional requirements not permitted. —  The Commission may not require an individual to meet requirements in addition to the requirements listed in subsections (a) and (b) of this section to be registered as a certifying provider.

(d)  Approval for certain medical conditions encouraged; limiting treatment to one class of providers prohibited. —

(1)  The Commission is encouraged to approve provider applications for the following medical conditions:

(i)  A chronic or debilitating disease or medical condition that results in a patient being admitted into hospice or receiving palliative care; or

(ii)  A chronic or debilitating disease or medical condition or the treatment of a chronic or debilitating disease or medical condition that produces:

  1. Cachexia, anorexia, or wasting syndrome;
  2. Severe or chronic pain;
  3. Severe nausea;
  4. Seizures; or
  5. Severe or persistent muscle spasms.

(2)  The Commission may not limit treatment of a particular medical condition to one class of providers.

(e)  Approval for other conditions permitted. —  The Commission may approve applications that include any other condition that is severe and for which other medical treatments have been ineffective if the symptoms reasonably can be expected to be relieved by the medical use of cannabis.

(g)  Procedures; permitted acts. —

(1)  A qualifying patient may be a patient of the certifying provider or may be referred to the certifying provider.

(2)  A certifying provider shall provide each written certification to the Commission.

(3)  On receipt of a written certification provided under paragraph (2) of this subsection, the Commission shall issue an identification card to each qualifying patient or caregiver named in the written certification.

(4)  A certifying provider may discuss medical cannabis with a patient.

(5)

(i)  Except as provided in subparagraph (ii) of this paragraph, a qualifying patient or caregiver may obtain medical cannabis only from a medical cannabis grower licensed by the Commission or a dispensary licensed by the Commission.

(ii)  A qualifying patient under the age of 18 years may obtain medical cannabis only through the qualifying patient’s caregiver.

Md. Health-General Code Ann. Section 13-3313

(a)  Exemption from arrest, prosecution, or any civil or administrative penalty. —  Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of cannabis:

(1)  A qualifying patient:

(i)  In possession of an amount of medical cannabis determined by the Commission to constitute a 30-day supply; or

(ii)  In possession of an amount of medical cannabis that is greater than a 30-day supply if the qualifying patient’s certifying provider stated in the written certification that a 30-day supply would be inadequate to meet the medical needs of the qualifying patient;

(3)  A certifying provider;

(4)  A caregiver;

(b)  Penalty for distributing, possessing, manufacturing, or using cannabis diverted from approved program. —

(1)  A person may not distribute, possess, manufacture, or use cannabis that has been diverted from a qualifying patient, a caregiver, a licensed grower, or a licensed dispensary.

(2)  A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not exceeding 5 years or a fine not exceeding $ 10,000 or both.

(3)  The penalty under this subsection is in addition to any penalties that a person may be subject to for manufacture, possession, or distribution of marijuana under the Criminal Law Article.

Md. Health-General Code Ann. Section 13-3316

On or before September 15, 2014, the Commission shall adopt regulations to implement the provisions of this subtitle.

Code of Maryland Regulations 10.62.01.01

.01 Definitions

  1. In this subtitle, the following terms have the meanings indicated.
  2. Terms Defined.

(1) “Association” means employment or volunteer status at a licensed grower, licensed processor, or licensed dispensary.

(3) “Bona fide physician-patient relationship” means a treatment or counseling relationship between a physician and a patient in which the physician has:

(a) Reviewed the patient’s relevant medical records and completed an in person assessment of the patient’s medical history and current medical condition;

(b) Created and maintained records of the patient’s condition in accord with medically accepted standards; and

(c) A reasonable expectation that the physician will monitor the progress of the patient while using medical cannabis and take any medically indicated action:

(i) To provide follow-up care to the patient;

(ii) Regarding the efficacy of the use of medical cannabis as a treatment of the patient’s severe or debilitating medical condition; and

(iii) Regarding any adverse event associated with the use of medical cannabis.

(4) Caregiver.

(a) “Caregiver” means an individual 21 years old or older designated by a patient who has agreed to assist with a qualifying patient’s medical use of medical cannabis.

(b) “Caregiver” means, for a qualifying patient younger than 18 years old, a parent, or legal guardian.

(6) “Certifying physician” means a physician, as defined in Health Occupations Article, §14-101(i), Annotated Code of Maryland, who is registered by the Commission.

(7) “Commission” means the Natalie M. LaPrade Medical Cannabis Commission.

(18) “Medical cannabis” means any product containing usable cannabis or medical cannabis finished product.

(19) “Medical cannabis concentrate” means a product derived from medical cannabis that is kief, hashish, bubble hash, oil, wax, or other product, produced by extracting cannabinoids from the plant through the use of:

(a) Solvents;

(b) Carbon dioxide; or

(c) Heat, screens, presses or steam distillation.

(20) “Medical cannabis finished product” means any product containing a medical cannabis concentrate or a medical cannabis-infused product packaged and labeled for release to a qualifying patient.

(21) Medical Cannabis-Infused Product.

(a) “Medical cannabis-infused product” means oil, wax, ointment, salve, tincture, capsule, suppository, dermal patch, cartridge or other product containing medical cannabis concentrate or usable cannabis that has been processed so that the dried leaves and flowers are integrated into other material.

(b) “Medical cannabis-infused product” does not include a food as that term is defined in Health-General Article, §21-101, Annotated Code of Maryland.

(25) “Qualifying patient” means an individual who:

(a) Lives in the State or, during that time an individual is present in the State, is physically present in the State for the purpose of receiving medical care from a medical facility in the State;

(b) Has been provided with a written certification by a certifying physician in accordance with a bona fide physician-patient relationship; and

(c) If younger than 18 years old, has a caregiver.

(29) “Serious adverse event” means an undesirable experience associated with the use of medical cannabis where the outcome was death, life-threatening, hospitalization, disability or permanent damage, congenital anomaly/birth defect; required intervention to prevent permanent impairment or damage, or any other important medical event.

(32) Usable Cannabis.

(a) “Usable cannabis” means the dried leaves and flowers of the cannabis plant.

(b) “Usable cannabis” does not include seedlings, seeds, stems, stalks or roots of the plant or the weight of any non-cannabis ingredients combined with cannabis, such as ingredients added to prepare a topical administration.

(34) “Written certification” means a certification that is issued by a certifying physician for a qualifying patient with whom the physician has a bona fide physician-patient relationship.

(35) “30-day supply” means:

(a) 120 grams of usable cannabis unless the physician determines this amount would be inadequate to meet the medical needs of the qualifying patient; or

(b) In the case of a medical cannabis-infused product, 36 grams of ?9-Tetrahydrocannabinol (THC) unless the physician determines this amount would be inadequate to meet the medical needs of the qualifying patient.

Code of Maryland Regulations  10.62.03.01

.01 Physician Application for registration

 

  1. A physician seeking registration as a certifying physician shall submit an application provided by the Commission that includes:

(1) The physician’s:

(a) Full name;

(b) Social Security Number;

(c) Office addresses and phone numbers;

(d) Current email address;

(e) Maryland Board of Physicians license number; and

(f) Plan to assess patient outcomes, provide follow-up care, and to collect and analyze data;

(2) An attestation that the:

(a) Physician’s Maryland license to practice medicine is active, unrestricted, and in good standing;

(b) Physician is registered to prescribe controlled substances by the State; and

(c) A standard patient evaluation will be completed and include:

(i) A history;

(ii) A physical examination;

(iii) A review of symptoms; and

(iv) Any other pertinent medical information;

(3) The medical conditions for which the physician may issue written certifications for medical cannabis;

(4) The physician’s other inclusion criteria; and

(5) The reasons the physician may deny issuing a written certification of medical cannabis.

  1. The Commission encourages physicians to apply to register as a certifying physician to treat patients who:

(1) Have a chronic or debilitating disease or medical condition that results in the patient being admitted into hospice or receiving palliative care;

(2) Have a chronic or debilitating disease or medical condition or are receiving treatment for a chronic or debilitating disease or medical condition that causes:

(a) Cachexia;

(b) Anorexia;

(c) Wasting syndrome;

(d) Severe or chronic pain;

(e) Severe nausea;

(f) Seizures; or

(g) Severe or persistent muscle spasms;

(3) Have the following diseases and conditions:

(a) Glaucoma; or

(b) Post traumatic stress disorder (PTSD).

  1. A physician may be registered as a certifying physician to treat a patient who has a condition that is:

(1) Severe;

(2) For which other medical treatments have been ineffective; and

(3) If the symptoms reasonably can be expected to be relieved by the medical use of cannabis.

  1. A certifying physician may apply to amend the approval at any time.
  2. The application shall be deemed approved unless the Commission notifies the applicant that the application has been denied.

10.62.05.01

.01 Issuing a Written Certification.

  1. A certifying physician may determine that a patient qualifies for a written certification only:

(1) If the qualifying patient has registered with the Commission;

(2) For whom the certifying physician has a bona fide physician-patient relationship;

(3) If the qualifying patient meets the certifying physician’s inclusion criteria;

(4) If the qualifying patient does not meet the certifying physician’s exclusion criteria; and

(5) If the certifying physician has determined that the potential benefits of the medical use of cannabis likely outweigh the health risks for the patient.

  1. The certifying physician shall:

(1) Log onto the website of the Commission to transmit the written certification to the Commission; and

(2) If requested, provide a copy of the written certification to the qualifying patient.

  1. A written certification shall include the:

(1) Physician’s name, Maryland Board of Physicians license number, and office telephone number;

(2) Qualifying patient’s name, date of birth, address, and county of residence;

(3) Medical condition requiring medical cannabis; and

(4) The date of qualification as a qualifying patient.

  1. A written certification may contain, if applicable, a written statement certifying that, in the physician’s professional opinion, a 30-day supply of medical cannabis would be inadequate to meet the medical needs of the qualifying patient.
  2. A certifying physician may discuss the use of medical cannabis with a patient.
  3. A certifying physician shall terminate a written certification if:

(1) The qualifying patient meets the physician’s exclusion criteria;

(2) Treatment with medical cannabis is no longer necessary for the qualifying patient;

(3) Adverse effects of medical cannabis outweigh the benefits to the qualifying patient’s health; or

(4) There is evidence that the qualifying patient engaged in diversion of medical cannabis.

  1. A certifying physician may terminate a written certification if the qualifying patient demonstrates abuse of any substance of abuse.
  2. A certifying physician shall notify the Commission within 1 business day of the termination of a written certification.
  3. A qualifying patient shall have only one certifying physician at any time.

Code of Maryland Regulations  10.62.06.02

.02 Caregiver Identification cards

  1. Upon being designated a caregiver by a qualifying patient, a caregiver shall:

(1) Apply to the Commission for an identification card; and

(2) Submit to the Commission:

(a) The name of the qualifying patient for whom the caregiver is providing assistance or for whom the caregiver is a parent or legal guardian;

(b) Proof that the caregiver is authorized to act as a caregiver by the qualifying patient;

(c) A current, clear photograph of the applicant’s face taken within 6 months of application;

(d) The completed application in a format determined by the Commission;

(e) An attestation that the caregiver is not the caregiver for more than five qualifying patients;

(f) A copy of the caregiver’s government identification card or other proof of identity;

(g) The required fee as specified in COMAR 10.62.35; and

(h) An attestation that the caregiver understands the restrictions:

(i) That it is illegal to transfer medical cannabis to any person, other than the transfer by a caregiver to a qualifying patient; and

(ii) On the use or redistribution of medical cannabis set forth in COMAR 10.62.30.05.

  1. An identification card shall contain:

(1) The name and date of birth of the cardholder;

(2) An expiration date 2 years from the date of issue;

(3) A current, clear photograph of the applicant’s face taken within the previous 6 months; and

(4) The caregiver registration number assigned by the Commission.

Code of Maryland Regulations  10.62.07.02

.02 Hearing- New condition hearing process

At least once per year if needed, the Commission shall conduct a public hearing to evaluate any petition to consider other medical conditions, medical treatments, or diseases that may be treated by using medical cannabis and included in certifying physician applications.

Code of Maryland Regulations  10.62.07.03

.03 Petition Contents

The Commission shall consider a petition that may include:

  1. The severity of a condition or the treatments thereof;
  2. The degree to which other medical treatments have been ineffective to alleviate pain, suffering, disability or the symptoms of the condition or the treatment thereof;
  3. Evidence that supports a finding that the use of medical cannabis alleviates pain, suffering, disability or symptoms of the condition or the treatment thereof;
  4. Any information or studies regarding any beneficial or adverse effects from the use of medical cannabis in patients with the medical condition, medical treatment, or disease that is the subject of the petition; and
  5. Letters of support from physicians or other licensed health care professionals knowledgeable about the condition, treatment, or disease.

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