Ohio’s Medical Marijuana Law and Employment Implications Brice Smallwood & Brian Higgins | Greater Hamilton Safety Council | December 4, 2019 frostbrowntodd.com
Frost Brown Todd LLC frostbrowntodd.com
• Health Care Attorney 1. Advised health systems, senior living facilities, and physicians on medical marijuana law. 2. Counsels clients on Stark law/Anti-kickback Brian Higgins statute, and HIPAA/privacy concerns. 3. Assists healthcare clients on corporate transactions. 4. Advises on general healthcare regulatory issues. 5. Experience at Medpace, Inc. and The Christ Hospital. frostbrowntodd.com
• Labor and Employment Attorney 1. Helps employers navigate the myriad of issues that arise from having employees. 2. Aid employers in understand the intersection of the ADA, the FMLA, workers’ compensation, and state leave laws and why we’re not going to fire that employee yet. Brice Smallwood 3. Works with employers to develop and draft comprehensive polices related to medical marijuana and drug testing based on the needs of the employer, the industry, and the need to find employees who can pass a drug screen. 4. Regularly assists employers in the healthcare industry regarding human resources issues and balancing employee rights with patient needs. frostbrowntodd.com
Let’s have some pun 1 It was high time Ohio passed a medical marijuana law. By 2 no means a trailblazer, Ohio is still one of the earlier midwestern states to pass this type of legislation. Today, 3 we will get into the weeds on what the law says. Put 4 5 bluntly, it creates a tightly rolled regulatory scheme where 6 the joint efforts of the program’s licensees and the State 7 will define its success. Industry stakeholders have high 9 hopes the law will lead to a pot of gold and plant the 8 seed for recreational use in the future, while opponents 10 11 hope the budding marijuana industry goes up in smoke. I 12 will try and clear the legal haze for you this morning. frostbrowntodd.com
1. Cannabis, generally 2. Overview of Ohio’s medical marijuana program Today’s Agenda 3. How federal law impacts Ohio’s medical marijuana program 4. Implications the program has for employment frostbrowntodd.com
Cannabis, generally frostbrowntodd.com
Cannabis, generally 1. Cannabis is the name of a plant family. 2. Hemp and marijuana fall under the cannabis plant family umbrella. a. Hemp contains trace amounts of tetrahydrocannabinol (THC) and increased amounts of cannabidiol (CBD). b. Marijuana contains increased amounts of THC and decreased amounts of CBD. 3. No FDA-approved natural cannabis-derived products except for Epidiolex, which contains CBD derived from the marijuana plant. 4. Epidiolex treats Dravet syndrome and Lennox-Gastaut syndrome, two conditions associated with seizures. frostbrowntodd.com
Cannabis, generally (continued) 1. Hemp legalization a. Federal Farm Bill 2018 legalized hemp and hemp-derived products (hemp- derived CBD oil) and permanently removed hemp from federal drug control. b. “Hemp” means cannabis with less than 0.3% THC. c. Ohio Senate Bill 57 legalized hemp and hemp-derived products at the state level. d. “… [a] ny person may, without a hemp cultivation license or hemp processing license, possess , buy , or sell hemp or a hemp product .” e. Before Senate Bill 57 passed, hemp and hemp-derived products could only be legally sold under state law at an Ohio licensed medical marijuana dispensary. frostbrowntodd.com
Cannabis, generally (continued) 1. Hemp and hemp-derived products are legally sold in Ohio retail stores. 2. Marijuana and marijuana derived products are sold in Ohio licensed medical marijuana dispensaries. 3. Note that Ohio will be accepting applications to obtain a license to grow and process hemp soon. frostbrowntodd.com
An overview of Ohio’s medical marijuana program frostbrowntodd.com
An overview of Ohio’s medical marijuana program 1. Authorizes the recommendation, cultivation, processing, sale, and use of marijuana for medical purposes. 29 th State plus D.C. to legalize medical 2. marijuana 3. Patient estimates of 200,000+ ( source: Ohio Medical Marijuana Control Program ) This Photo by Unknown Author is licensed under CC BY-SA-NC frostbrowntodd.com
An overview of Ohio’s medical marijuana program (continued) Photo Source: https://www.medicalmarijuana.ohio.gov/ frostbrowntodd.com
An overview of Ohio’s medical marijuana program (continued) 1. Cultivators a. 9/19 level I operational b. 9/13 level II operational 2. Processors – 12/41 processors operational 3. Dispensaries – 45/57 operational 4. Laboratories – 3/5 operational *Data as of October 31, 2019 frostbrowntodd.com
An overview of Ohio’s medical marijuana program (continued)* 1. ~ 46,000 total physicians in Ohio, only 584 certified to recommend 2. ~ 69,000 patients registered with recommendations 3. ~ 46,000 unique patients made purchases 4. 200,000 patients / 527 physicians = ~ 342 patients per physician *Data as of October 31, 2019 frostbrowntodd.com
An overview of Ohio’s medical marijuana program (continued)* • Patient Demographics 1. 4,739 Patients with Veteran Status 2. 3,238 Patients with Indigent Status 3. 401 Patients with a Terminal Diagnosis *Data as of October 31, 2019 frostbrowntodd.com
Ohio Physician- CTR Map as of August 12, 2019 https://med.ohio.gov/Publicati ons/CTR-Search frostbrowntodd.com
Top 8 Ohio Medical Marijuana Qualifying Medical Conditions by Patient* 12,000 10,910 10,000 8,000 6,000 4,000 2,622 1,973 2,000 1,082 998 555 445 387 0 *Data as of February 2019 frostbrowntodd.com
An overview of Ohio’s medical marijuana program (continued) 1. Day 1 sales (Jan. 16) = > $75,000 (only 4 dispensaries) 2. Total sales (Jan. 16 – Nov. 17) = $43,100,000 3. Total volume of product = 5,175 pounds of plant material frostbrowntodd.com
Critical points about Ohio’s medical marijuana program 1. Patients/caregivers responsible for storage to prevent theft, loss, or access by persons not authorized by law. 2. Prohibits the disqualification of a patient from medical care or transplant list. 3. Medical marijuana made a Schedule II drug (with Adderall and morphine). This Photo by Unknown Author is O.R.C. § 3796 et. seq. licensed under CC BY-SA-NC frostbrowntodd.com
Critical points about Ohio’s medical marijuana program (continued) 4. Professional immunization from disciplinary action for engaging in professional or occupational activities related to medical marijuana. 5. Patient/caregiver not subject to arrest/criminal prosecution for medical marijuana related conduct. This Photo by Unknown Author is 6. Ohio residency required. licensed under CC BY-SA-NC O.R.C. § 3796 et. seq. frostbrowntodd.com
Critical points about Ohio’s medical marijuana program (continued) 7. Physicians are not required to provide instructions for use (dosages and forms) – look to the “ budtenders .” 8. Public places are not required or prohibited from accommodating a patient’s use of medical marijuana. 9. 21 qualifying medical conditions to get a recommendation. O.R.C. § 3796 et. seq. frostbrowntodd.com
Qualifying medical conditions AIDs, Alzheimer's disease, Amyotrophic lateral sclerosis; Cancer; Chronic traumatic encephalopathy; Crohn's disease; Epilepsy or another seizure disorder; Fibromyalgia; Glaucoma; Hepatitis C; Inflammatory bowel disease; Multiple sclerosis; Pain that is either of the following: (i) Chronic and severe; or (ii) Intractable; Parkinson's disease; positive status for HIV; Post-traumatic stress disorder; Sickle cell anemia; Spinal cord disease or injury; Tourette's syndrome; Traumatic brain injury; and Ulcerative colitis. frostbrowntodd.com
Qualifying medical conditions (continued) 1. State medical board rejected depression, insomnia, opioid addiction, anxiety and autism 2. NY, CA, and PA on opioid addiction frostbrowntodd.com
How will a patient get medical marijuana? 1. Schedule appointment; 2. Be evaluated by physician with certificate to recommend; 3. Be diagnosed with qualifying medical condition; 4. Receive a recommendation and have physician register patient (pay for card -- $50 pt., 25$ c.g.); and 5. Purchase product at dispensary. frostbrowntodd.com
The recommendation 1. Recommendation good for 90 days and may be refilled 3 times for a period of 90 days. 2. At least one in-person visit annually. frostbrowntodd.com
The in-person evaluation • Physician must: 1. assess medical history, Rx history, SUD history; 2. review current medications for interactions; 3. perform physical examination relevant to patient’s current medical condition; and 4. determine whether patient suffers from qualifying medical condition. frostbrowntodd.com
The in-person evaluation (continued) • If qualifying medical condition diagnosed (or confirmed), then physician must: 1. develop treatment plan; 2. review OARRS report (review for indicators of possible abuse or diversion); 3. explain risks and benefits of treatment; 4. obtain the patient's consent prior to completing a recommendation; and 5. determine whether patient needs a “caregiver.” frostbrowntodd.com
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