Medical Marijuana Passes in the State of Massachusetts

03/05/2013

By referendum, the voters of Massachusetts legalized medical marijuana. Massachusetts will be the 18th state to do so. Though the law took effect on January 1, 2013, regulations are still to follow. Under the parameters of the law:

  • A person diagnosed by a licensed physician as having certain debilitating medical conditions may obtain and use medical marijuana. This includes illnesses such as cancer, glaucoma, HIV, AIDs, ALS, multiple sclerosis, Crohn’s disease, Parkinson’s disease and any other conditions as determined in writing by a qualifying patients physician.
  • Qualifying patients, personal caregivers, physicians and dispensary agents are not subject to civil or criminal penalty under state law. Personal caregivers can assist with a qualifying patient’s medical use of marijuana. They must be 21 years of age, and they are prohibited from consuming the marijuana.
  • Written certification is required from a licensed physician with whom the patient has a bona-fide physician-patient relationship. A registration card from the Department of Public Health is available to those that qualify.

As a result of this development, up to 35 non-profit medical marijuana dispensaries may be set up across Massachusetts to cultivate and sell medical marijuana. If there is determined to be a cultivation hardship, when a patient lives too far from a dispensary, the crop can be grown.

The Department of Public Health has much regulatory work to do given this new industry to the state. First, it must define the quantity of marijuana presumed to be a 60 day supply, it must issue registration cards to qualifying patients, caregivers and dispensary agents, it must register marijuana dispensaries, and it must maintain a confidential list of person to whom registration cards have been issued (note employers will not have access to this list, only law enforcement).

Complexities of Medical Marijuana in the Workplace

This new law raises a whole host of issues for local employers. There will be workplace implications such as safety concerns, such as industrial accidents, product defects and on the job injury. The law does not permit the operation of a motor vehicle, boat or aircraft while under the influence of medical marijuana. For employers that fall under the Department of Transportation (DOT) “any safety-sensitive employee subject to drug testing under the U.S. Department of Transportation regulations cannot use medical marijuana under a state law as a valid medical explanation for a positive drug test”.

Though there is no drug testing statute in the state of Massachusetts, there is a privacy law which states, “a person shall have a right to reasonable, substantial or serious interference with her/her privacy”. However, courts have held that when there is a reasonable suspicion of drug use, an employee’s right to privacy has not been infringed upon. A reasonable suspicion exists based on an objective observation of employees’ behavior, appearance, body odor and speech.

There will also be drug-testing concerns and disability discrimination issues. Under federal law, marijuana is still an illegal drug. The Americans with Disabilities Act (ADA) specifically provides that a current user of illegal drugs is not a “qualified individual with a disability” though the underlying medical condition would likely be. Further the new law states that there is no requirement of accommodation of any on-site medical use of marijuana in any place of employment.

MA Department of Public Health: Medical Marijuana Frequently Asked Questions

In November 2012, Massachusetts voters approved a ballot question which allows qualifying patients with certain medical conditions to obtain and use medical marijuana. The Massachusetts Department of Public Health (DPH) has published a list of frequently asked questions about the current status and planned timeline for the implementation of regulations required by the new law:

What happens on January 1, 2013?
The medical marijuana law takes effect on January 1, 2013. At that point, the Department will have 120 days (until May 1, 2013) to issue regulations. Until regulations are in place, medical marijuana dispensaries cannot open, and DPH cannot issue any registration cards. DPH’s regulations will reflect input from various stakeholders, and the Department will hold a hearing and comment period to allow for further public input before the regulations are finalized.

Are qualifying patients eligible for medical marijuana under the new law starting January 1 while DPH is drafting its regulations?
During the time DPH is crafting its regulations, the ballot measure allows the written recommendation of a qualifying patient’s physician to act as a medical marijuana registration card. Similarly, the law allows a qualifying patient to cultivate their own limited supply of marijuana during this period. Under the law, until DPH issues its regulations, it is not involved in regulating any medical marijuana recommendations between physicians and patients, or in defining the limited cultivation registration.

How do I qualify as a patient?
The patient must obtain a written certification from a physician for a debilitating medical condition. The law specifies: cancer, glaucoma, AIDS, hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician. The law allows qualified patients to possess up to a 60-day supply of marijuana for their personal medical use. The law directs DPH to define a 60-day supply through regulation.

What must DPH decide before dispensaries can be registered and registration cards can be issued?
Beginning on January 1, DPH will have 120 days to issue regulations governing numerous sections of the law. Some of the provisions include: setting application fees for non-profit medical marijuana treatment centers to fully cover the cost to the state; defining the quantity of marijuana that constitutes a 60-day supply; setting rules for cultivation and storage of marijuana, which will be allowed only in enclosed, locked facilities; creating registration cards for qualified patients; and defining rules around registration cards, personal caregivers, employees of medical marijuana treatment centers and individuals who qualify for a hardship cultivation registration.

I want to operate a medical marijuana dispensary. Can I apply for registration while regulations are being written?
No, because the regulations will specify what information and fee must be submitted for an application to be considered. In the first year, the law allows DPH to register up to 35 non-profit treatment centers across the state, with at least one but no more than five centers per county. The non-profit treatment centers would be registered under the law to grow process and provide marijuana to qualified patients.

Will Massachusetts give guidance to health care providers on the medical marijuana law?
The Board of Registration in Medicine is collaborating with DPH to determine how to ensure that physicians understand the law and its provisions. The Board welcomes the recommendations of the Massachusetts Medical Society and other interested stakeholders, and will collaborate with DPH to successfully implement the law and promote patient safety.

Will health insurers or governments be required to cover medical marijuana?
No. Nothing in the law requires any health insurance provider, or any government agency or authority, to reimburse any person for the expenses of the medical use of marijuana.