Brian Rath, counsel in the firm's Healthcare section, authored an article for McKnight’s Senior Living entitled, “Medical marijuana use in assisted living is possible, with careful planning.”
Fifteen years ago, assisted living communities didn’t have to think about resident medical marijuana use policies. Under the federal Controlled Substance Act, marijuana was an unlawful Schedule I drug and the rules prohibiting marijuana use in such communities were cut and dried — it was prohibited.
Today, the landscape is more complex, as 36 states have legalized medical marijuana. Although marijuana remains a Schedule I controlled substance at the federal level, in 2013, the Department of Justice issued a memo stating that it would refrain from marijuana prosecutions in states that have legalized cannabis. Although that memo was revoked by then-Trump administration Attorney General Jeff Sessions, the administration change has put that revocation in doubt. Moreover, each year since 2014, Congress has attached an amendment to its annual federal budget prohibiting the DOJ from using federal funds to “prevent” states from “implementing” their medical marijuana laws. As Supreme Court Justice Clarence Thomas recently stated, the federal government’s enforcement of its marijuana laws has been “a contradictory and unstable state of affairs” creating “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.”
At the same time, between 2006 and 2013, marijuana use among those aged more than 50 years increased by more than 70% — and this baby boomer generation (albeit the oldest of the generation) is the exact generation that is moving into assisted living communities and expecting to have access to all medical treatments and options. The shifts in state law, public perception and use of marijuana have many assisted living communities exploring ways to accommodate residents’ use. In making a decision, a community first should weigh some key considerations.
Decide whether to allow recreational or medical marijuana
Some states legalizing medical marijuana are addressing the use in long-term care facilities directly. Arizona, for example, prohibits facilities from “unreasonably limiting” a registered patient’s access to or use of medical marijuana. Pennsylvania has announced that it will not cite assisted living communities for licensure violations related to medical marijuana use by residents as long as state rules are followed.
Marijuana, however, remains illegal under federal law, although with contradictory and unstable enforcement. Because of this illegality, assisted living communities that receive federal funds, such as from the Medicaid program, are at risk of losing their federal dollars. Federal prohibitions also apply to facilities that receive funding from the U.S. Department of Housing and Urban Development. It’s important to note that to date, the federal government has not taken action against any facility for allowing medical marijuana among its residents. Facilities must weigh their decisions against this state and federal dichotomy.
Create an effective marijuana policy
If an assisted living community chooses not to allow medical marijuana use, then that policy is straightforward. If, however, a community chooses to allow marijuana use, then it must develop clear rules for use. Clarity in policies is essential to avoid unwanted federal scrutiny, maintaining compliance with state marijuana laws and ensuring resident safety.
Communities should work to incorporate medical marijuana use into broader treatment approaches while also taking care to limit their direct role in procuring, storing and administering cannabis to residents. Many facilities have adopted a “lockbox approach,” whereby the qualified resident or authorized “caregiver” procures the marijuana from a legal dispensary with a physician order and brings it to the community, where it is stored with other medications, with limited access to staff members. The resident or the caregiver are the only ones able to access the medical marijuana and administer it as necessary.
Communicate policies to all interested parties
Media reports have shown assisted living residents in conflict with the communities in which they live over the use of marijuana. Almost all of these conflicts result either from miscommunication of the community policy, the resident’s expectations or a combination of both. Whatever policies a community decides to adopt, those policies should be communicated clearly to current and potential residents, as well as to family members, and incorporated into new resident materials and agreements. Communities should be aware of regulatory shifts that would necessitate changes to existing policies.
Until there is substantial change on the federal level facilitated by an act of Congress, medical marijuana use in assisted living communities will be caught in the conflict between state and federal laws. Despite this conflict, communities can meet their residents’ desire for marijuana use with careful consideration and planning.