Will Pennsylvania’s Medical Marijuana Act get Doc Blocked?

Under Pennsylvania’s newly enacted Medical Marijuana Act, there are 17 Serious Medical Conditions for which a patient may be prescribed medical marijuana. For a patient to be allowed to use medical marijuana, that patient must be issued an identification card under Section 501 of the Act. The Department of Health (“DOH”) may issue an identification card to a patient who has a certification approved by the DOH and to a caregiver designated by the patient. As part of the application process, patient must be issued certification from a practitioner, provide the name address and telephone number of the practitioner, and provide documentation from the practitioner that all of the requirements of section 403(a) of the Act have been met.

Section 403(a) states, a certification to use medical marijuana may be issued by a practitioner to a patient if all of the following requirements are met:
(1) The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.
(2) The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.
(3) The patient is under the practitioner’s continuing care for the serious medical condition.
(4) In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

Under the Act, a practitioner is defined as a physician registered with the DOH under section 401 of the Act. Section 401(a) states, a physician may be eligible to be included on the practitioner registry and authorized to issue certifications to patients if the following three requirements are met.

To be eligible for inclusion in the registry:

(1) A physician must apply for registration in the form and manner required by the department.
(2) The department must determine that the physician is, by training or experience, qualified to treat a serious medical condition. The physician shall provide documentation of credentials, training or experience as required by the department.
(3) The physician must have successfully completed the course under section 301(a)(6).

Under 301(6), practitioners must complete a four-hour training course for physicians, pharmacists, certified registered nurse practitioners and physician assistants regarding the latest scientific research on medical marijuana, including the risks and benefits of medical marijuana, and other information deemed necessary by the department.

As lawyer, I have to complete twelve continuing legal education hourly credits annually so a four-hour initial training course is not a big deal. I don’t believe the above requirements create prohibitive firewall for physicians. The real obstacle is will enough physicians be willing to prescribed medical marijuana.

For variety of reasons, physicians initially may be hesitant to participate in Pennsylvania’s Medical Marijuana program. Physicians may worry about the psychoactive side effects of marijuana and not want to prescribe it to patients. Not every physician believes and accepts that marijuana has medical benefits to patients.

Additionally, physicians have no control over what is dispensed to patients. Under the Medical Marijuana Act, physicians simply certify that a patient has one of the seventeen serious medical conditions. A physicians is tied to the patient he certifies but has no control over the medication he is certifying the patient may receive.

Many of the physicians are also connected with larger health networks who will be fearful of the potential liability issues caused by one of its physicians certifying patients to take medical marijuana. Finally, marijuana is still illegal on a Federal level. The DEA classifies marijuana as a schedule 1 controlled substance, like heroin, with “no currently accepted medical use”. Initially, there may not be enough physicians willing to certify patients.

Pennsylvania’s Medical Marijuana Act is very similar to Minnesota’s medical marijuana law in the requirements that it places on physicians and patients. Both laws also regulate marijuana as a medicine and do not allows patients to smoke marijuana. After Minnesota approved its law in 2014, Minnesota projected 5,000 patients would initially be certified. Over a month after Minnesota’s law was enacted, less than two hundred patients had been certified. One of the reasons for the low number of certified patients was that there were too few physicians willing to certify patients. Critics of Minnesota’s medical marijuana law called it the “Doc Block”. Time will tell if patients in Pennsylvania will also be Doc Blocked.