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Regulation of Pain Clinics versus Medical Marijuana (Marihuana) Dispensaries

posted on Tue, Feb 28 2017 1:49 pm by The Network for Public Health Law

A requester recently contacted the Network for information about the differences and similarities in the regulation of pain clinics and medical marihuana dispensaries in Michigan.

Pain Clinics

There do not appear to be any pain clinic-specific laws in Michigan; however, the Michigan Boards of Medicine and Osteopathic Medicine & Surgery have issued Guidelines for the Use of Controlled Substances for the Treatment of Pain (“Guidelines for Treatment of Pain”) (applicable to prescribing physicians rather than to pain clinics). The guidelines, which “communicate what the Boards consider to be within the boundaries of professional practice,” include and describe the following elements:

    1. Evaluation of the Patient
    2. Treatment Plan
    3. Informed Consent and Agreement for Treatment
    4. Periodic Review
    5. Consultation
    6. Medical Records
    7. Compliance with Controlled Substances Laws and Regulations

Failure to comply with these guidelines could subject a physician to disciplinary action by the applicable Board; however, disciplinary action is discretionary.

In addition, veterinarians, pharmacists, and dispensing prescribers must report prescription information regarding Schedules 2-5 controlled substances to the Michigan Automated Prescription System (MAPS) (see MCL 333.7333a). Prescribers may query the system to review a patient’s prescription records to determine if the patient is receiving prescriptions from other providers. Finally, opioids are generally classified as Schedule 2 controlled substances and are therefore subject to all laws governing Schedule 2 controlled substances. See MCL 333.7214. See also, e.g., Article 7 of the Public Health Code, MCL 333.7101 et seq. (“Controlled Substances”) and Mich. Admin. Code R. 338.3101 et seq. (“Pharmacy – Controlled Substances”).

Medical Marijuana Dispensaries

Use of medical marijuana is governed by the Michigan Medical Marihuana Act (MMMA), passed in 2008 (with amendments effective in 2013 and 2016), and accompanying regulations. In addition, various aspects of medical marihuana provision are governed by the Medical Marihuana Facilities Licensing Act and Marihuana Tracking Act, (both passed in September 2016). The MMMA (MCL 333.26421 et seq.) allows for medical use of marihuana and provides for a system of registry identification cards for qualifying patients and primary caregivers. To obtain a registry identification card, which protects qualifying patients and primary caregivers from prosecution, arrest, or penalty associated with medical use and possession of marijuana, a patient must submit a “written certification” signed by a physician (defined at MCL 333.26423(q)).  With regard to physicians providing such a certification, MCL 333.26424(g) states the following:

(g) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

A bona fide physician-patient relationship is defined at MCL 333.26423(a). It requires that a physician review the patient’s relevant medical records; assess the patient’s medical history and current medical condition; complete a relevant in-person medical evaluation of the patient; create and maintain records for the patient; have a “reasonable expectation” of providing follow-up care to the patient; and, if permitted by the patient, notify the patient's primary care physician of the patient's qualifying medical condition and certification for medical use of marihuana.

The Medical Marihuana Facilities Licensing Act provides for licensing and regulation of medical marihuana facilities, including “growers, processors, provisioning centers, secure transporters, and safety compliance facilities.” The law requires licensees to adopt and use a tracking system that is capable of interfacing with a statewide monitoring system created under the Marihuana Tracking Act, also passed in September 2016. As noted above, both the Medical Marihuana Facilities Licensing Act and the Marihuana Tracking Act were passed very recently in September 2016; thus, regulations have not yet been issued and the Michigan Department of Licensing and Regulatory Affairs (LARA) is not yet accepting applications or issuing facility licenses.

The requirements applicable to a physician providing a written certification for medical marihuana are somewhat similar to the Guidelines for Treatment of Pain described above, but there are important differences. First, it is important to note that doctors do not actually "prescribe" medical marihuana since it is still a Schedule I controlled substance under federal law and therefore may not be lawfully distributed or dispensed under a prescription. For a discussion of the interplay of federal and state laws regarding marijuana and the implications of this interplay for physicians, a 2014 journal article by George J. Annas, “Medical Marijuana, Physicians, and State Law,” is helpful. Another important difference is that a written certification for medical marijuana may be issued only for a “debilitating medical condition,” as defined in the MMMA at MCL 333.26423(b) or subsequently approved by the LARA, while the Guidelines for Treatment of Pain do not specify conditions for which prescribing a pain medication is appropriate.

Network attorneys are available to answer questions on this and other public health topics at no cost to you, and can assist you in using law to advance your public health initiatives.  Contact a Network Attorney in your area for more information.