Post Authored by Alexandra Verven
According to the Illinois Department of Public Health (“IDPH”), more than 2,500 Illinois citizens applied for medical marijuana cards in the first two weeks of January 2020. This number reflects a 34% spike in applications since December 2019. One suspected reason for this spike is the sky-high taxes imposed on recreational cannabis products. As a result, consumers are now applying for medical marijuana licenses to avoid these taxes. Qualified health care providers should keep the following in mind when certifying a patient for medical marijuana use.
In 2014, Illinois enacted the Compassionate Use of Medical Cannabis Pilot Program Act (“Act”) in response to the opioid epidemic. 410 ILCS 130/5. The Act recognizes the legitimacy of marijuana’s uses to treat an array of medical conditions, and protects patients with debilitating medical conditions, as well as their physicians and providers, from arrest and prosecution. Id. To be eligible for a medical marijuana card, a patient must: 1) be at least 18 years old; 2) be a resident of the State of Illinois; 3) have a qualifying debilitating medical condition; 4) have a signed physician certification; 5) not hold a school bus permit or CDL; and 6) not be an active duty law enforcement officer, correctional officer, probation officer, or firefighter. 410 ILCS 130/ et seq. The list of debilitating medical conditions identifies 37 qualifying medical conditions. 410 ILCS 130/10(h)(1). Notably, generalized symptoms such as pain, nausea, anxiety are absent. However, a patient who only has symptoms and not a full-on “condition” may still be able to obtain medical marijuana. The Act allows patients to petition the IDPH to add debilitating conditions or treatments to the list, which will be approved or denied within 180 days after submitting the petition to the State. 410 ILCS 130/45. Additionally, the Act enables caregivers of patients with debilitating medical conditions to becomes cardholders, as long as the caregiver is at least 18 years old, has agreed to assist a single patient with medical use, and has not been convicted of a felony or violent offense. 410 ILCS 130/10(i). Of course, none of this is possible without the approval of a “certifying health care professional,” which includes physicians, advanced practice registered nurses, or physician assistants who are licensed under the Illinois Controlled Substances Act. 410 ILCS 130/10(s).
While the Act plainly states that a physician is not subject to arrest, prosecution, or penalty for providing written certifications for patients seeking medical marijuana, medical providers should still be aware of a few caveats. For instance, the Act does not protect providers who issue a written certification to a patient, not under that physician’s care for a debilitating medical condition. 410 ILCS 130/25. This means physicians must be actively treating patients for one of the varying debilitating medical conditions defined by the Act, maintaining those patients’ records for access and review by the IDPH upon request, and performing a live and in-person examination of the patient; in other words, telemedicine is not allowed. Id. See also 410 ILCS 130/35. Failure to comply may result in sanctions from a professional licensing or disciplinary board. Id. The Act also does not protect physicians from discipline for failing to properly evaluate a patient’s medical condition or otherwise violating the standard of care when evaluating medical conditions. 410 ILCS 130/25. Physicians are also prohibited from accepting, soliciting, or offering money from or to a qualifying patient, primary caregiver, marijuana cultivation center to certify a patient under the Act; the only fees permitted are those generally associated with office visits. 410 ILCS 130/35. Similarly, physicians cannot advertise or examine patients in marijuana cultivation centers.
Therefore, medical providers should only certify patients they actively see and treat for a debilitating medical condition, maintain proper documentation of that treatment in case the IDPH requests to see it, and of course, not advertise or solicit business in front of a marijuana cultivation center.
About the Author:
Alexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.