From our legal staff at Shumaker, Loop & Kendrick this morning:
As predicted, the Office of Compassionate Use has updated the FAQ section of its webpage. Questions 1 through 9 now specifically address the issues with Amendment 2 that have been the subject of recent speculation and confusion. Unfortunately (though not surprisingly), the “answers” to the questions, such as “Can I order medical marijuana for my patients” are rather indirect. The full list is available here. Here are a few examples:
8) QUESTION: Can I order medical marijuana for my patients?
ANSWER: In order to qualify to order medical marijuana for patients, a physician must have an active, unrestricted license as a physician under Chapter 458, F.S., or osteopathic physician under Chapter 459, F.S. Physicians who meet the above requirements may gain access to the Compassionate Use Registry after completing the required 8-hour course and examination provided by the Florida Medical Association and the Florida Osteopathic Medical Association. Successful completion of the course is required each time a physician renews his or her license. Physicians may only order medical marijuana for a patient if he or she has treated that patient during the immediate preceding 3 months.
9) QUESTION: Can I order for the conditions listed in Amendment 2?
ANSWER: It is the responsibility of the qualified ordering physician to follow Florida constitution and statute, diagnose patients and determine if medical marijuana is an appropriate treatment. The Department is committed to quickly moving through the rulemaking process to create a regulatory structure for Amendment 2. For information about the rulemaking process, please click here. In partnership with law enforcement, enforcement actions initiated by the department against patients, doctors and businesses will be focused on those operating outside the regulatory structure in Florida law. It is important to remember marijuana is illegal under federal law.
Reading between the lines, it appears that the Department is striving to have the regulations in place just as patients begin to meet the “3 month” treatment mark. The Department appears to assume that the 3 month period began ticking on the day Amendment 2 was enacted. This ignores the fact that some physician patient relationships [for treating patients with the additional debilitating conditions made eligible by Amendment 2] have already passed, or will soon pass, the 3 month treatment benchmark. Interestingly, after reiterating the Department’s commitment to “quickly moving through the rulemaking process to create a regulatory structure for Amendment 2,” the Department mentions the possibility of enforcement actions for anyone “operating outside of the Regulatory structure in Florida law,” including doctors. As we’ve discussed, during this time of continued uncertainty, it remains important to proceed with caution.
The FAQ answers also include the following notable language:
1) QUESTION: Can I access medical marijuana for the expanded conditions under Amendment 2?
Answer: It is the responsibility of the qualified ordering physician to follow Florida constitution and statute, diagnose patients and determine if medical marijuana is an appropriate treatment. Florida law has several requirements for patients to be eligible:
- A patient must have been diagnosed with a qualifying condition.
- A patient must be a Florida resident.
- If under the age of 18, a patient must have a second physician agree to the use in order to obtain an order from a qualified physician.
- A patient must have tried other treatments without success.
- An ordering physician must determine the risks of use are reasonable in light of the benefit to the patient.
- A patient must be registered with the Compassionate Use Registry by their ordering physician.
- A patient must be receiving treatment from a qualified ordering physician during the immediate preceding 3 months prior to an order being placed.
- The Department is in the process of developing a patient identification card program. Please check this website for updates.
The Department is committed to quickly moving through the rulemaking process to create a regulatory structure for Amendment 2. For information about the rulemaking process, please visit click here. In partnership with law enforcement, enforcement actions initiated by the department against patients, doctors and businesses will be focused on those operating outside the regulatory structure in Florida law. It is important to remember marijuana is illegal under federal law.
5) QUESTION: Do I need a patient identification card?
ANSWER: The Department is in the process of developing a card program. Please check this website for updates.
The Department’s statement that it is “in the process of developing a patient identification card program” leaves out the important fact that the identification card (or passage of 90 days from the Amendment’s effective date) are actually requirements to be a “qualified patient” permitted to obtain medical marijuana for the expanded conditions under Amendment 2. We also point out use of the term “qualifying condition” as such term is not defined in Amendment 2, which instead uses the term “debilitating condition.” The Notice of Proposed Rule Making includes a definition for “Qualifying debilitating medical condition” which is defined to mean “conditions eligible for physician ordering contained in s. 381.986(2)F.S., or cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrphic lateral sclerosis (ALS), Crohn’s disease, Parkingson’s disease, multiple sclerosis. Also any debilitating medical condition of the same kind or class as or comparable to those enumerated, as determined by the Florida Board of Medicine.” *Thus, like the Department’s response to Question 5 regarding patient identification cards, its answer to question 1 is equally nebulous.
The bottom line, as many lawyers within the state have advised, if you intend to use medical marijuana you should schedule an appointment with a Compassionate Use physician as soon as possible.