April 2014 • Volume 102 • Number 4 • Page 172
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Health Care Law/Employment Law
Medical Marijuana Comes to Illinois
What will the Medical Cannabis Act mean for patients? For employers? Others? Prepare to advise clients about what some are calling the most restrictive medical marijuana law in the country.
Reflecting what has and hasn't changed about our collective attitude toward marijuana, those wishing to light up or otherwise consume cannabis in Illinois will soon be able to legally do so - but only with a physician's sign-off, and then only if they have one of a list of allowable medical conditions.
The Compassionate Use of Medical Cannabis Pilot Program Act officially took effect Jan. 1 and made Illinois the 20th state (covering more than one-third of the U.S. population) with such a statute. Those familiar describe it as possibly the most restrictive in the nation. Precise regulations are still being hashed out, and the first purchases are not expected to take place until late this year, but those close to the process have early words of advice for attorneys who will be advising potential patients and their employers.
"I'm pleased to say it is a very stringent act; it puts us in the forefront of states that have gone before us in terms of how to properly implement this program, so that it assists the patients it is designed to assist: those with debilitating conditions," says Conny Moody, assistant deputy director of health promotion at the Illinois Department of Public Health ("DPH"). "Our act does not allow the recreational use of medical cannabis."
Jay Stewart, director of the division of professional regulation in the Illinois Department of Financial and Professional Regulation, echoed those comments. "There are a lot of reasons why the law is regulated the way it is - [reflecting] a desire on the part of the legislature to make sure this will not be a free-for-all," he says.
"This is going to be a highly regulated program," agrees Eric Berlin, a partner at Jones Day in Chicago who advocated for the law and advised legislators. "It's not like Michigan or California, where entrepreneurs can do what they want. It will be a smoothly run program, which is good news." Stewart, Moody, and Berlin spoke at a recent ISBA CLE roundtable on the new law and its implications (see sidebar).
A four-year pilot program with an automatic sunset if it isn't renewed by the end of 2017, the Medical Cannabis Act permits up to 22 cultivation centers regulated by the Illinois Department of Agriculture. They will be the only legally recognized growers of cannabis. It also provides for up to 60 dispensaries regulated by the Department of Professional Regulations, who will be the only legal retailers.
Patients may not directly purchase cannabis from the cultivation centers. Unlike in other states with looser regulations, patients and their caregivers may not grow marijuana, nor, certainly, purchase it on the street.
Berlin says attorneys for patients should start by obtaining the draft regulations - they're supposed to be finalized by May 1 - from the Department of Public Health, which will administer the patient population. Among other information, the regulations stipulate which conditions are considered to benefit medically from the use of cannabis; to date, these include cancer, Crohn's disease, Alzheimer's, multiple sclerosis, and severe fibromyalgia, among others, he says.
No symptoms are on the list. "Illinois does not have generalized conditions like pain, or nausea, or anxiety or, yes, PTSD," he adds. "It's not a situation where you can say, 'I have generalized pain.'"
Some patients are outright excluded: pediatric patients, active duty law enforcement officers, those convicted of certain "excluded" offenses, or those who have a school bus or commercial driver's license. The draft regulations lay out how patients need to apply and what they need to submit, which will include fingerprints, background checks, and their medical records.
Attorneys must advise their clients about the enumerated debilitating medical conditions before moving forward, Berlin says. "I hear all the time from folks, 'This is wonderful. I have horrible insomnia,'" he says. "Well, you're not going to get into the program on that."
And the physician must have reasonable expertise in the condition for which they are recommending the patient, Berlin says. "If you have MS, you can't get your dentist to certify that you need medical cannabis," he says. "It has to be a bona fide physician-patient relationship. It's not clear how that's defined, but you must have seen the physician for the condition that's getting registered."
Physicians as gatekeepers. Patients should tread very carefully if they encounter any physicians holding themselves out as a "medical cannabis physician," Stewart notes. "Probably no physician is qualified to treat all of the qualifying conditions," he says.
The fact that physicians are required to be the "gatekeepers" in determining whether patients qualify presents a special challenge for those served in Department of Veterans Affairs health facilities, where physicians are prohibited under federal law from writing such certifications, Moody says. "That is among things we are currently thinking about, querying other states and talking to medical societies and hospital associations, all those advocacy groups interested in helping us make sure the act is properly implemented," she says.
Those who have one of the identified conditions and are over the age of 21 will be able to purchase 2.5 ounces every two weeks, and those purchases must take place at an identified "home" dispensary, Berlin says. "If anyone thinks they can purchase from one and then quickly from another, and divert the product [to someone else], that's not going to happen," he says. Patients or their caregivers will need to apply to the Department of Public Health for an ID card.
Attorneys representing patients should advise them to ask their physician whether they have a debilitating condition that might benefit from the therapeutic properties of cannabis and then carefully review the draft rules, Moody says.
"Pay particular attention to the type of documentation that we'll be looking for, both from the physician and the patient," she says. "Our intent is to make this registration process something that is easily understood by any patient regardless of their education level or their background. The application will be written in simple language. We will be requiring…a number of pieces of documentation that also should be readily accessible." Just make sure applications are complete so they can be processed properly, Moody adds.
No firearms for med-marijuana users. Among the other stipulations that apply to patients:
• The Smoke Free Illinois Act, aimed at cigarettes, applies to marijuana smoking as well, which means that it cannot be smoked in public places, although Berlin notes that the definition of "public place" under the law "gets tricky." And the distinction between smoking marijuana and using a vaporizer - which produces little to no smoke - hasn't been "fully vetted," he adds. "Does that mean you can't use a vaporizer? I don't think the law is clear on that." Marijuana that's contained in food - the proverbial pot brownies - is another option for patients that would not create a smoking-related concern, Moody says.
• Patients may not transport cannabis in a vehicle unless it's in a sealed container and in the glove compartment or trunk, and cannabis cannot be used in a vehicle under any circumstances. "It doesn't matter if you're in the third row being driven around," Berlin says. "It needs to be within a tamper-proof package." (For more on the interplay between the Medical Cannabis Act and DUI law, see Larry Davis' article in last month's IBJ.)
• Patients cannot use medical marijuana in close proximity to a minor, but "I don't think we know what is close proximity," Berlin says. "I don't think that is going to be readily enforced. A lot is left to the good judgment of the parent."
• And registered patients may not also own a firearm. "Right now they are mutually exclusive. That has caused a lot of uproar," he says. "That's something attorneys will need to be educated about."
'Everyone is being judged.' But Berlin urges attorneys to warn their clients to exercise caution, not the least because the law is a pilot program. "It came after a good six years of trying to press this through our General Assembly," he says. "It was a hard-fought fight to get this law on the books. Attorneys should let their client-patients know that everyone is being judged. It's in the best interest of patients, even if they think the rules are stupid, to follow them as best they can and do this responsibly."
Patients might need to weigh whether, for example, obtaining regular marijuana is more important to them than owning a firearm, Berlin says. "Attorneys need to advise clients about the pros and cons of entering this," he says. "There are issues that I know concern patients a lot, like whether the confidentiality provisions are tight enough; the fact that they need their doctors to send their medical records to the Department of Public Health." He adds: "I'm not suggesting that patients who want to should stay on the black market."
Moody says that DPH is bound by the Health Insurance Portability and Accountability Act (HIPAA) and has been discussing how to deal with such records and what the process will look like to ensure privacy.
In response to a question at the ISBA CLE roundtable, Stewart said he's not concerned that the relative strictness of the act will drive people to the black market. "Strict shouldn't be confused with impossible or unattainable."
"There's not much use for a regulatory system where nothing occurs," he says. "We want it to be a highly regulated system. The patients want to have a bona fide regulated system: They know who it is they're getting it from, they know what it is, a physician has been involved at some point-as opposed to doing it on your own, the risks, criminal law, it's unknown who you're getting it from and what it is."
Advising employers - do medical marijuana and zero tolerance mix?
The Medical Cannabis Act is going to be a major issue for employers as well, and it presents quite a conundrum, Berlin says. "Employers, No. 1, can't discriminate against medical cannabis patients," he says. "Yet the law says, No. 2, that if you have a 'no tolerance' drug testing policy, [medical marijuana] is not an excuse. It doesn't grant [patients] any freedom to violate the employer's no-drug policy. Which presents an interesting point: how do we deal with this? How do we deal with employees legally able to medicate…during work? It's a legally unclear area."
But it's certainly an area that employers will want to address, Berlin says, and that will probably happen on a case by case basis, depending on why a particular employer's zero-tolerance policy exists in the first place. "My personal opinion is it seems to me there are employment places where it makes sense to have a no-tolerance policy," he says. "In other areas…it may not be viable for employers to have no-tolerance policies, to fire employees who have a random sample of THC in their bloodstream."
Lawyers representing employers will need to carefully consider the rules about how to treat a patient, agrees Bob Morgan, general counsel for the Department of Public Health and the medical cannabis statewide program coordinator on behalf of the office of Gov. Pat Quinn. "We're looking at the question of balancing the rights of a patient participating in the pilot program with an employer that wants to have a drug-free workplace," he says. "[Employers] will have to be cautious about applying drug-free workplace testing to employees who are participating members of the program."
Patients who use medical marijuana do so to function better, not worse, and they develop tolerance over time so that small amounts don't get them high - and that's not their purpose, anyway, Berlin says. "That's a hard concept for most folks to understand," he says. "Most folks' exposure [to marijuana] is using it to get high and perhaps not be able to function well. Lawyers advising [employers] need education on this."
The conundrum led one ISBA roundtable audience member to ask, "Who is allowed to be a patient: only the unemployed?" And Berlin allowed, "The law as in most laws, particularly here in Illinois, is a matter of political expediency." He noted that it might make sense to have a zero-tolerance policy for a mechanic working with heavy machinery and very precise movements. But if 20 percent of the population ends up registered in the program, "Businesses will need to consider, is [zero tolerance] good for our business?"
Berlin knows of one case in Michigan where a patient who was a model employee, had been awarded prizes and never had complaints from his bosses, tested positive for THC and was fired. Even though Michigan's law, passed by voter referendum, is less restrictive than Illinois', "The courts said that yes, whether or not that's the right or wrong thing, that's the policy," Berlin says. "Indeed employers can fire employees if they have a no-tolerance policy and the patient tests positive. I'm sure there will be litigation on that down the road."
"It's hard to see what may happen," Stewart adds. "I suspect there will be, like our other new professions, litigation around disciplinary actions. That's nothing unique."
Advising other clients
The Medical Cannabis Act will open up client possibilities for other types of attorneys as well, Berlin says, although generalists should tread carefully in these areas.
Sellers and growers. Certainly the dispensaries and cultivation centers will need representation, not only for contracts but also general commercial litigation, he says, but that requires precise knowledge of the regulations and what led to them. "Generalists may not want to overreach in that area, and refer it to someone more knowledgeable," Berlin says.
Cultivation centers, for example, must be at least 2,500 feet from a school or day care and be in line with any local zoning board ordinances. Dispensaries cannot be within 1,000 feet of a school or day care and cannot be owned by a registered patient or caregiver, or someone convicted of certain offenses, "a lot of them drug-related crimes, for obvious reasons," Stewart says.
Unions, landlords, and more. Berlin can imagine mergers and acquisitions work down the road, as well as banking and finance, real estate, government regulations, and intellectual property as people develop different strains of cannabis for different conditions. "What about the labor side?" he asks. "What is going to be negotiated by unions? The NFL said this is something we ought to be able to investigate - it might help some of our injured and debilitated players. It's not in the collective bargaining agreement now, but there is some emerging evidence regarding [positive effects on] concussions."
"I think it touches on a ton of legal areas; one of the tricks for the generalists is to recognize that and recognize what the approach is, and where to get better knowledge," Berlin says. "It is a very complicated area of the law because you have the intersection of federal and state law, in our program over 200 pages of regulations, and it touches on so many aspects of the law."
Other types of businesses will be impacted - for example, landlords can prohibit smoking in their buildings, colleges can restrict or even ban cannabis on their campuses, and neither insurance companies nor government insurance programs are required to cover medical cannabis use, Berlin says. Hospitals will not be regulated or registered to dispense cannabis, he says, although patients can certainly use it in a hospital - as long as they don't smoke it there.
'Lawyers are going to be involved'
Lawyers have been crucial in drafting the legislation and regulations, and they will continue to be involved in all aspects, Morgan figures. "We'll have lawyers involved in representing patients, caregivers, applicants for dispensaries," he says. "Lawyers are going to be involved in and critical to every aspect of the program - employee-employer relationships, the criminal and law enforcement aspect, the general counsel for the Chicago Police Department, or for the large employers in the city."
Businesses should not be looking for the cheapest representation, Berlin says. "It's not an area where businesses should be looking for shortcuts, and it's not the area where someone should go to the lowest billable hour, or to non-lawyers," he says. "We have had various so-called 'consultants' setting up shop; it's an area where folks should be looking for the best, not the cheapest."
Ed Finkel is an Evanston-based freelance writer.
More about medical marijuana in Illinois
• Illinois' official portal to the Medical Cannabis Pilot Program is at http://www2.illinois.gov/gov/mcpp/Pages/default.aspx. Links for regulatory rulemaking under the program will be posted here.
• Conny Moody, assistant deputy director of health promotion at the Illinois Department of Public Health and a resource for this article, encouraged those with questions or recommendations to contact her at (217) 782-3300 or firstname.lastname@example.org or to send comments to DPH.MedicalCannabis@illinois.gov.
• For an analysis the impact of the medical marijuana program on DUI law and vice versa, see Larry A. Davis' article, The Medical Cannabis Act and Illinois DUI Law, in last month's IBJ.
Medical Cannabis in Illinois, held in December and presented by the ISBA Health Care Section, is online now and free to ISBA members.
Topics include -
View the program at http://isba.fastcle.com (search by title or under "Health Care Law") and earn 1.75 hours of free CLE credit.