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Ohio Medical Marijuana – Can Health Care Providers Partake?

By Laura A. Perkovic

The law legalizing medical marijuana in Ohio became effective on September 6, 2016, but it involves a drawn-out process of incremental measures before limited possession becomes legal in September, 2018. This article will simplify Ohio’s medical marijuana law, and discuss its impact on health care professionals.

First, a quick run-down of key provisions:

Qualifying Conditions
AIDS;
Alzheimer’s disease;
Amyotrophic lateral sclerosis;
Cancer;
Chronic traumatic encephalopathy;
Crohn’s disease;
Epilepsy or another seizure disorder;
Fibromyalgia;
Glaucoma;
Hepatitis C;
Inflammatory bowel disease;
Multiple sclerosis;
Pain that is either chronic and severe or intractable;
Parkinson’s disease;
Positive status for HIV;
Post-traumatic stress disorder;
Sickle cell anemia;
Spinal cord disease or injury;
Tourette’s syndrome;
Traumatic brain injury;
Ulcerative colitis;
And any other disease or condition added by the State Medical Board.

Allowed Forms and Quantity
90-day supply of:
Oils;
Tinctures;
Plant material;
Edibles;
Patches;
And any other form approved by the Board of Pharmacy.

Allowed & Prohibited Methods of Use
Smoking or combustion is prohibited.
Vaporization is permitted.
Any form or method that is considered “attractive to children” is prohibited.

The Board of Pharmacy may approve additional methods, other than smoking or combustion.

THC Content

Plant material: not more than thirty-five per cent.
Extracts: not more than seventy per cent.

How the System Will Work

Cultivators, processors and testers of medical marijuana will be licensed through the department of commerce. Dispensaries will not be allowed to have financial interest in any testing labs, and will be licensed through the Board of Pharmacy.

Doctors wishing to be involved in prescribing medical marijuana will hold certificates issued by the State Medical Board of Ohio. The doctor will submit applications to the Board of Pharmacy on the patient or caregiver’s behalf. The application will include a statement from the doctor certifying all of the following:

  1. A bona fide physician-patient relationship exists;
  2. The patient has been diagnosed with a qualifying medical condition;
  3. The physician requested a report from the Board of Pharmacy covering at least the last 12 months;
  4. The physician has informed the patient of the risks and benefits of medical marijuana;
  5. It is the physician’s opinion that the benefits of medical marijuana outweigh its risks.

Once the application is processed by the Board of Pharmacy, the patient or caregiver will be issued an ID card. The Board of Pharmacy will be required to negotiate and enter into reciprocity agreements with other states with similar registration processes and eligibilities, which will allow out-of-state patients and caregivers the same rights to obtain, possess, use, or administer medical marijuana inside the sister states’ borders.

The State of Ohio will maintain a database to monitor medical marijuana from seed, through cultivation, to processing, testing, and dispensing. A closed-loop payment processing system could be developed, where sales will be monitored from the cultivator on down the line to the patients. Registered patients and caregivers will hold spending accounts, and funds may be used in transactions only with Ohio licensed retail dispensaries. The information recorded by this system will be fully accessible to the Board of Pharmacy, as well as all state and federal law enforcement agencies.

Employment Law and Drug Screening for Medical Marijuana
The Ohio medical marijuana law will have no effect on employment decisions. The medical marijuana law will NOT:

  • Require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana;
  • Prohibit an employer from refusing to hire; or from discharging, disciplining, or otherwise taking an adverse employment action against a person because of that person’s use, possession, or distribution of medical marijuana;
  • Prohibit an employer from establishing and enforcing a drug testing policy, drug-free workplace policy, or zero-tolerance drug policy;
  • Interfere with any federal restrictions on employment;
  • Permit a person to sue an employer for refusing to hire, discharging, disciplining, discriminating, retaliating, or otherwise taking an adverse employment action against a person related to medical marijuana.

Doctors and Nurses Using Medical Marijuana

As discussed above, zero-tolerance drug policies will not be affected or changed by the medical marijuana law. A drug screen showing a positive result for THC, resulting in refusal to hire or termination will be reported to the Board of Medicine or the Board of Nursing.

Notwithstanding Ohio medical marijuana laws, the DEA has not loosened its restrictions, and marijuana remains a Schedule I Controlled substance. Additionally, possession of marijuana remains a criminal offense under federal law. And, possession of non-medical marijuana remains illegal in Ohio. Therefore, issues surrounding possession of marijuana could have criminal consequences as well as negative impacts on a professional license.

Conclusion

Any matters relating to prescription and non-prescription drug abuse can involve criminal charges as well as professional discipline by nursing or medical boards. It is wise to find counsel who understands both the criminal and disciplinary processes. Attorney Laura Perkovic has many years of experience in Ohio criminal defense including state and federal drug possession and trafficking. Additionally, as a former health care fraud prosecutor, she has extensive experience in health care-related crimes and now focuses her practice on defending doctors, nurses and other health care professionals in criminal cases as well as nursing board and medical board matters.