State COVID-19 Response: Medical Marijuana and Telemedicine

State regulators across the healthcare professions continue to issue a number of guidances and waivers as part of the larger COVID-19 response.  We have previously blogged on a number of waivers issued by state pharmacy regulators in connection with COVID-19 response related to pharmacy staffing and facility licensure and inventory and distribution of controlled substances.  Today, we are blogging on an entirely different set of state COVID-19 guidance and waivers related to telemedicine and medical marijuana.  The regulatory landscape in light of the ongoing COVID-19 pandemic is constantly evolving and this is merely an overview of a few recent actions.

Minnesota

On March 31, Minnesota Governor Tim Walz signed an Executive Order Ensuring Continuing Operations of the Medical Cannabis Program during the COVID-19 Peacetime Emergency.  The Executive Order allows the Commissioner of Health to permit a healthcare practitioner to certify a patient’s qualifying medical condition after a visit through videoconference, telephone, or other remote means, and temporarily waives the requirement that the certification be made only after an in-person visit.  The certifying healthcare practitioner must still meet the applicable professional standards of care when certifying a patient’s qualifying medical condition.  This Executive Order remains in place for the duration of the state of emergency.

District of Columbia

On March 25, DC Health issued a letter stating that medical marijuana recommenders will temporarily be permitted to utilize telehealth to make medical marijuana recommendations, subject to certain requirements.  In order to provide telehealth recommendations for medical marijuana, the provider must be licensed and in good standing as a medical doctor, osteopath, advanced practice registered nurse, dentist, naturopath, or physician assistant in DC, and have a bona fide relationship with the “qualifying patient.”  A qualifying patient is a resident of the District who has a qualifying medical condition or is undergoing a qualifying medical treatment.

The provider must have completed a full assessment of the qualifying patient’s medical/dental history and current condition no more than 90 days before making the recommendation.  The medical marijuana recommendation must be based on the practitioner’s assessment of the patient’s medical/dental history, current medical/dental condition, and a review of other approved medications and treatments that might provide relief to the patient.  Providers who are owners, employees, or otherwise hold an interest in a dispensary, cultivation center, or testing lab cannot perform a telemedicine recommendation for medical marijuana under this policy.

The policy announced in this letter is intended to allow patients and providers to responsibly practice social distancing and ensure adequate availability of healthcare providers for COVID-19 response.  Providers must still comply with all other DC medical marijuana regulations.

Massachusetts

On March 20, the Massachusetts Cannabis Control Commission issued a bulletin on Telehealth Consultations for New Patients During COVID-19.  Under this Bulletin, the Commission will consider waivers from providers who wish to certify new patients via telehealth for the Medical Use of Marijuana Program in Massachusetts.  The certification is a document stating that in the healthcare professional’s professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.  Typically, Massachusetts law requires that the potential patient be physically present for the clinical visit, prior to issuing a certification.  If a waiver to conduct a clinical visit via telehealth is granted, providers must first ensure that the same standard of care can be met.  The policy set forth in the bulletin remains in effect for the duration of the state of emergency.

Ohio

The State Medical Board of Ohio voted on March 18 to allow providers to use telemedicine in place of in-person visits, without risk of enforcement from the Medical Board.  Providers are permitted to use telemedicine in lieu of the in-person visits that are typically required by Ohio law for certain services, including medical marijuana recommendations and renewals, prescribing controlled substances, and prescribing to patients not previously seen by the provider.  Providers must document the use of telemedicine and meet the applicable standard of care.  The Medical Board policy is set to expire once the Executive Order declaring a state of emergency expires and the Medical Board will provide advance notice before resuming enforcement of the in-person visit requirements.

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In addition to the measures outlined above, many state regulators have specifically identified medical marijuana businesses as “essential businesses” that will remain open during the state of emergency.  For example, the Maryland Medical Cannabis Commission stated that medical cannabis licensees (growers, processors, dispensaries and independent testing labs) are state-licensed healthcare providers and are designated as essential businesses that may remain open.   However, medical cannabis licensees are still required to follow social distancing practices and clean and disinfect frequently touched surfaces.  New Hampshire’s Therapeutic Cannabis Program has similarly categorized Alternative Treatment Centers as essential businesses.