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Making Hospital Compliance Policies Green Under

Florida’s New Medical Marijuana Law

In my last article, Medical Marijuana in the Hospital Setting: Are You The Florida Department of Health has yet to promulgate regulations
Ready, I discussed topics that should be considered when drafting a for Florida’s new medical marijuana program. These regulations will
medical marijuana compliance policy for the institutional setting. hopefully provide additional guidance to hospital decision-makers as
Subsequent to the publication of my last article, the legislature, with they start to develop medical marijuana compliance policies. However,
the approval of Governor Rick Scott, passed Florida Senate Bill 8A hospitals should not wait until the regulations are promulgated.
(the “Bill”). These changes, some of which I discuss below, should be Instead, they should start to establish a diversified workgroup to discuss
addressed in the hospital’s medical marijuana compliance policy. current and prospective issues that relate to the increased use of medical
The following topics addressed in my prior article have been effect- marijuana in the hospital setting and develop policies that are opera-
ed by the recent legislation: tional and acceptable to the hospital’s patients and its stakeholders.

1. Will the hospital permit the use of medical marijuana For questions or more information, contact Becky Greenfield at
within the hospital and if so, what type of delivery mecha- becky@wolfepincavage.com, attorney at Wolfe Pincavage, LLP.
nisms will be permitted? BY BECKY GREENFIELD 1 Fla. Stat. § 381.986(1)(j)(2).
Perhaps one of the most criticized provisions of the new medical 2 The litigation alleged that “inhalation is a medically effective and efficient
marijuana legislation is its prohibition against smokeable way to deliver Tetrahydrocannabinol [“THC”] and other cannabinoids to the
1
marijuana. In fact, just days after the Bill was signed into law, litigation was brought bloodstream” and that “[b]y redefining the constitutionally defined term ‘medical use’ to
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against the State attacking the constitutionality of the anti-smoking provision. For exclude smoking, the Legislature substitutes it medical judgment for that of a ‘licensed Florida
the time being, and unless the plaintiffs’ constitutional arguments are successful in physician’ and is in direct conflict with the specifically articulated Constitutional process.”
court, hospitals that permit inpatient medical marijuana use may only allow such use People United for Medical Marijuana, Inc. v. State of Florida, et. al., 2017 CA 001394 (July 6,
in vapor or edible form. This restriction should be incorporated into the hospital’s 2017).
medical marijuana compliance policy.
3 Fla. Stat. § 381.986(1)(a).
4 Id. at (6).
2. Will the hospital permit practitioners to register as caregivers to assist 5 The monitoring program database was established pursuant to Fla. Stat. § 893.055.
patients with the administration of medical marijuana or will only self-
administration of medical marijuana be permitted?
Under the new law, transfer of medical marijuana may only be made to a qualified
patient or his or her registered caregiver. A caregiver is defined as “a resident of this
state who has agreed to assist with a qualified patient’s medical use of marijuana, has
a caregiver identification card, and meets the requirements of subsection (6).” 3
Amongst other requirements, a registered caregiver may only assist one designated
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qualified patient with the use of medical marijuana. As a result, the hospital should
not likely allow its practitioners to assist qualified patients with medical marijuana
use. Rather, the hospital should adopt a policy that requires self-administration. If
the patient is physically unable to independently administer medical marijuana, they
must have a registered caregiver, who can prove his or her status as a registered care-
giver with a marijuana use registry identification card. A copy of this identification
card should likely be placed in the patient’s medical records.
Notwithstanding the foregoing, the new legislation provides an exception to the
above limitation for hospice programs. A registered caregiver may assist all qualified
patients in a hospice program so long as such caregiver provides direct personal care
or other services to the qualified patients within the scope of his or her employment.
A caregiver may not, however, receive compensation other than actual expenses
incurred, related to providing medical marijuana use assistance. Therefore, hospice
institutions or facilities with a hospice program may adopt a policy that permits hos-
pice practitioners to become registered caregivers to assist with medical marijuana
administration for each qualified hospice patient under their direct care. However,
such practitioner may not receive compensation above his or her salary for becoming
a registered caregiver for any qualified patient.

3. Will the hospital permit its physicians to certify medical marijuana or
refill a medical marijuana order for the patient while he or she is under the
hospital physician’s care?
Prior to the new law, a certifying physician could not order medical marijuana for
a patient until a 90-day waiting period was complete. This barrier to care was
addressed by the new legislation, which eliminates the waiting period all together.
Additionally, the new law permits the certifying physician to prescribe a 70-day sup-
ply and requires the patient be recertified every 30 weeks. This is a significant change
from the prior law, which permitted only a 45-day supply and required recertification
once every 90 days. Hospitals that permit its physicians to certify medical marijuana,
should include these guidelines in its compliance policy.
Moreover, if the hospital allows its employees to become certifying physicians, the
policy should specify that the physician may only certify the use of medical marijua-
na after conducting an in-person examination of the patient: telemedicine is not an
appropriate alternative to a face-to-face consultation. Additionally, prior to ordering
medical marijuana for a patient, the certifying physician must ensure the patient is
not listed in Florida’s prescription drug monitoring program database. 5

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