As previously reported on our Physician Law Blog (see our post here), the Pennsylvania Department of Health issued draft “temporary” regulations regarding physician registration and certification of medical marijuana on April 11, 2017. Following a brief comment period, the Department finalized its “temporary” regulations in the June 3, 2017 issue of the PA Bulletin. A copy of the final regulations can be viewed here.
The regulations are labeled “temporary” because they were adopted to implement PA’s new Medical Marijuana Program. As a result, they will expire in two years, unless made permanent by the Department. However, for the first year of the Program, these regulations will govern the registration of any physician who wishes to certify the use of medical marijuana for his or her patients. The Department has confirmed in a related press release that the Medical Marijuana Program continues to be on schedule for full implementation in early 2018.
The final physician regulations make a few notable changes to the draft regulations, but also leave physicians with some lingering questions regarding the registration process, advertising their certification services, and charging fees for re-certifying the use of medical marijuana for existing patients.
1. The publicly available Practitioner Registry maintained by the Department will include only the practitioner’s name, business address and medical credentials (as opposed to the practitioner’s phone number and/or email address). [See 28 Pa. Code 1181.25]. As a result, a prospective patient seeking a physician on the Practitioner Registry will need to take the extra step to conduct a web search on the physician in order to locate the physician’s contact information. While this may encourage physicians registered to certify the use of medical marijuana to ensure that their practice websites clearly advertise their services, physicians should note that the Medical Marijuana Act and these regulations prohibit a physician registered to certify the use of medical marijuana from advertising the physician’s marijuana certification services. It is unclear to what extent this prohibition will permit practice websites to note that one or more of the practice’s physicians are registered to certify the use of medical marijuana.
2. A physician’s certification for the patient’s use of medical marijuana will now be required to include a statement as to the length of time (which cannot exceed 1 year) for which the practitioner believes the use of medical marijuana by the patient would be therapeutic and palliative. [See 28 Pa. Code 1181.27(a)(6)]. The certification will also be required to include the recommendations, requirements or limitations as to the form or dosage of medical marijuana appropriate for the patient or a recommendation that the patient speak only with a medical professional employed by, and working at, the dispensary regarding the appropriate form and dosage of medical marijuana. [See 28 Pa. Code 1181.27(a)(7)].
3. Under the final regulations, physicians may not receive or provide medical marijuana product samples, and may not serve as a designated caregiver for a patient for whom the physician has issued a certification for medical marijuana. [See 28 Pa. Code 1181.31].
4. Under the Act, physicians will be required to complete a 4-hour training course on various aspects of the use of medical marijuana in the treatment of serious medical conditions, in order to qualify for registration. The Department confirmed in these final regulations that it will maintain on its website a list of approved training providers offering the 4-hour course for reference by physicians seeking registration. [See 28 Pa. Code 1181.32].
As first raised in our prior blog post on the Department’s draft temporary physician regulations, the Act and the draft regulations appeared to leave two key questions unanswered. First, will the physician registration process be electronic or require paper application? And second, can a physician accept payment from existing patients for re-certifying the use of medical marijuana for those patients?
The Department failed to answer those questions in the final physician regulations. Regarding the former, we will eventually find out how the Department will operate the registration process when it announces the opening of physician registration. However, regarding the latter, which arises out of the unclear drafting of the Act and these regulations, an answer may require further inquiry with the Department.
I also note that, as raised above, it is unclear whether registered physicians will be able to list on their websites that they are registered to certify the use of medical marijuana.
Stay tuned to the Fox Rothschild Physician Law Blog for updates on physician registration for certification of the use of medical marijuana in Pennsylvania.
Should you have any questions regarding the registration process or what obligations a registered physician will have under the Act, please contact an experienced healthcare lawyer.