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Once again, change is afoot in the healthcare industry.

Between increasing regulation, the introduction of innovative technology, the shift to value-based payment systems and much more, insurers, hospitals and healthcare providers have a lot to keep track of. This is why Buchanan Ingersoll & Rooney hosts its Healthcare Insider Symposium in Philadelphia each year. Featuring some of the firm’s most experienced attorneys, government relations professionals and other healthcare experts, the eighth annual Healthcare Insider Symposium touched on a number of the most pressing challenges and opportunities in this multi-trillion-dollar industry.

This year’s keynote address featured Alison Beam, Deputy Chief of Staff for the Office of Pennsylvania Gov. Tom Wolf. In front of a crowd of the healthcare industry’s top attorneys and executives, Beam outlined a number of Gov. Wolf’s top priorities for the industry in 2020.

There is no shortage of new initiatives being adopted by the Wolf administration in the year ahead that would be noteworthy to healthcare providers, insurers and patients in Pennsylvania. Wolf and his team will be tackling everything from increasing access to mental health services, keeping healthcare costs down, increasing the reach of healthcare services to vulnerable populations, and more.

According to Beam, one of the priorities for Gov. Wolf will be addressing the growing popularity of medical marijuana in the commonwealth.

Supporting Medical Marijuana in Pennsylvania

The adoption of medical marijuana has grown significantly in the state following the 2016 Pennsylvania Medical Marijuana Act. There are now hundreds of thousands of Pennsylvanians certified to purchase medical marijuana, 1,300 physicians certified to prescribe it and 72 state-approved dispensaries. By one estimate, the medical marijuana program has led to more than $500 million in sales since inception.

Compared to neighboring states New Jersey and Delaware, Pennsylvania’s list of debilitating conditions that qualify an individual for medical marijuana is significantly longer. It includes everything from chronic pain to anxiety disorders and even opioid-use disorders. Many of Gov. Wolf’s plans for 2020 are aimed at supporting this budding industry and making medical marijuana more accessible to Pennsylvanians, Beam said.

For example, the state department has met with banking officials to address the issue of financing this industry and increasing access to other financial services. It has taken steps to set up an infrastructure for growers, processors and dispensaries to enter the market and thrive. Additionally, the department is looking at enhance evidence-based clinical research to help doctors and patients make better decisions around using the drug safely and effectively.   

Enforcement will also be a priority, Beam said. The administration will continue to vacate permits for bad actors when necessary. But Beam also said the team will be looking at how to re-permit growers and dispensaries that demonstrate compliance in a fair way. A push for recreational use of marijuana in Pennsylvania also emerged in 2019. According to Beam, Gov. Wolf is committed to allowing the state General Assembly to debate this topic now that there are case studies in Colorado and Washington to review and learn from.

Implications for Hospitals and Health Systems

Pennsylvania is far from the only state dealing with these issues, as 33 states and Washington, D.C. now have some form of a medical marijuana law. For employers, especially those in the healthcare space that deal with patient safety issues, addressing the notion of employees using medical marijuana raises difficult questions and legal gray areas.

For instance, how does a hospital ensure patient safety when employees are using medical marijuana? Should a hospital allow a surgeon to use medical marijuana off duty? How do healthcare leaders determine whether or not an employee is impaired while on the job?

Under federal regulations, marijuana is still considered a Schedule 1 controlled substance. But now that individual states have their own rules, employers cannot simply lean on the federal laws to justify action against employees solely based on their usage of medical marijuana. In fact, recent cases have tended to favor employees and their rights to use it.

Instead of terminating an employee or blocking them entirely from using medical marijuana, more companies are being asked to accommodate their employees’ medical marijuana usage by working with them to adjust their schedule, responsibilities or even providing them with a brief leave of absence while they’re using the drug.

However, unlike other industries, hospitals and other healthcare providers deal with individual safety concerns and have a duty to vet employees and enforce policies that protect patients. Put simply, the stakes are higher when it comes to allowing surgeons, doctors and other direct patient caregivers to use medical marijuana, and hospitals and other health systems are faced with the difficult task of balancing their risks. On one hand, they carry the risk of a wrongful termination or other employee-related suit. On the other hand, they potentially face wrongful death lawsuits if it is determined that the use of medical marijuana by a doctor or surgeon impacted their ability to treat a patient.

Clearly, the healthcare space is standing on shifting sands when it comes to allowing employees to use medical marijuana. At Buchanan, our attorneys are monitoring this situation along with countless others affecting our clients. Learn more about this topic, and view the slides from this presentation and others from the 2020 Buchanan Healthcare Insider Symposium.