George F. Indest III, Board Certified by The Florida Bar in Health Law
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Florida may be “going green” in a big way come November 2016; and I’m not talking about recycling. The Florida Right to Medical Marijuana Initiative, or Ballot Initiative Amendment 2, has undergone revisions, and will likely be making its second run with voters since its marginal loss in 2014. Promoters of the Constitutional Amendment predict success; hopefully this isn’t just a pipe dream.
However, the Florida Compassionate Medical Cannabis Act of 2014, currently allows low-THC cannabis to be utilized only by qualifying patients for certain medical ailments. A licensed physician, as outlined in Chapter 458 or 459 of Florida Statutes, is required to qualify patients for the use of medical marijuana.
For FAQ’s on low-THC cannabis issued by the Florida Department of Health (DOH), click here.
Physician Requirements for Qualifying Patients and Ordering.
For a patient to qualify to obtain and use THC, a previously approved physician must examine and currently be treating a patient for a debilitating illness. Such illnesses include cancer or any physical medical condition or ailment that produces chronic seizures or severe and persistent muscle spasms (such as epilepsy or multiple sclerosis). Furthermore, the physician must have tried all other options of treatment without satisfactory results. Medical marijuana must be a last resort alternative. Section 381.986(2), Florida Statutes (2015).
One of the physician ordering requirements is that the doctor must “register as the orderer of low-THC cannabis for the named patient on the compassionate use registry maintained by the department [of health] and update the registry to reflect the contents of the order.” Section 381.986(2)(c), Florida Statutes (2015).
In order to become registered in Florida, licensed physicians must successfully complete an 8-hour course, offered by either the Florida Medical Association (FMA) or the Florida Osteopathic Medical Association (FOMA). It is necessary for the physician to satisfactorily pass an examination upon completion of the course. Section 381.986(4), Florida Statutes (2015).
Currently, only 42 doctors varied throughout Florida in areas to include Orlando, Pensacola, Tallahassee and Jacksonville, have signed up for authorization.
Why the Lack of Physicians?
Several theories may account for the lack of physician involvement in the program in Florida.
One of the theories that may explain why physicians are hesitant to jump on board with this new-age line of treatment, is the lack of scientific research conducted in the United States to back the medical efficacy of medical marijuana. Scientists are reluctant to answer even the most basic questions about the use of medical marijuana including the long-term risks, actual benefits and the overall effect of legalization.
Many physicians may be concerned that the use of medical marijuana is supported more by popular opinion than on actual medical research.
However, a primary reason for insignificant research may be due to the unavailability of the drug for scientific study due to its illegal status. The federal government entirely restricts the authorization to use marijuana for medical research. The media is replete with stories on this. As the debate over marijuana and its legalization for medical use becomes more widespread and pertinent, the drug has concurrently become more available for research.
For more information on current medical marijuana research efforts as reported by U.S.A. Today, click here.
Who Will Dispense the Marijuana?
Another hold-up in support from physicians may be due to the fact that the Department of Health (DOH) is still in the process of selecting the five dispensing organizations throughout Florida that will be developing and dispensing the drug.
As originally proposed, this requires an arduous application process presently consisting of proposals from 24 competing companies. A dispensing organization must have the ability to meet several requirements as set forth in the statues, including the financial ability to post a $5 million performance bond upon approval. Section 381.986(5)(b), Florida Statutes (2015).
Many physicians are still waiting to know where the drugs will be dispensed, what the dosages will be, what forms they will be available in and how much they will cost. These are all important factors to consider in determining whether or not medical marijuana may be beneficial to certain patients.
Penalties for Misuse.
A final reason for physician avoidance of marijuana is fear of criminal prosecution and discipline by their boards, given the lingering gray areas of the law.
To read one of our previous blogs regarding a federal judge’s challenge of the DOJ’s incorrect interpretation of federal law on medical marijuana prosecutions and a win for medical marijuana advocates across the nation, click here.
It is undisputed that the use of medical marijuana is on the rise. Therefore, any licensed physician who is contemplating or has already signed up for the program, needs to be sure they are in strict compliance with Florida law.
A physician is committing a misdemeanor, which may result in criminal penalties, if he or she orders low-THC cannabis for a patient without possessing a reasonable belief that the patient is suffering from one of the debilitating medical conditions as described in Section 381.986(3)(a)(1) and (2), Florida Statutes.
It is one of the ongoing duties of the dispensing organizations established by the Department to “monitor physician registration and ordering of low-THC cannabis for ordering practices that could facilitate unlawful diversion or misuse of low-THC cannabis and take disciplinary action as indicated.” Section 381.986(5)(b)(7)(c), Florida Statutes (2015).
Therefore, a physician interested in obtaining authorization to order medical marijuana for his or her patients, should contact an experienced health attorney as a safeguard to ensure he or she complies fully with the law.
Comments?
Why do you believe there is a lack of physician involvement in Florida in the medical marijuana program? What are your thoughts on the availability of medical marijuana in Florida?
Contact Experienced Health Law Attorneys for Medical Marijuana Concerns.
The Health Law Firm attorneys can assist health care providers and facilities, such as doctors, pharmacists and pharmacies, wanting to participate in the medical marijuana industry. We can properly draft and complete the applications for registration, permitting and/or licensing, while complying with Florida law. We can also represent doctors, pharmacies and pharmacists facing proceedings brought by state regulators or agencies.
To contact The Health Law Firm please call (407) 331-6620 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
Sources:
Powers, Scott. “Medical-pot backers unfazed only 42 doctors in program.” Orlando Sentinel 20 August 2015: Final. Print.
Caputo, Mark. “Medical marijuana supporters unveil new proposal for 2016.” Miami Herald. 8 January 2015. Web. 27 August 2015.
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