By: David S. Barmak, JD, CEO
More states in the United States have legalized medical marijuana than continue to criminalize it. The challenge for skilled nursing facilities is that under federal law, the use of marijuana remains illegal, even in the states that have legalized it. Marijuana is classified as a Schedule I drug under the federal Controlled Substances Act. This means that there is no currently accepted medical use of marijuana under federal law.
The federal government has, however, provided states with the autonomy to regulate and enforce state-specific marijuana laws. President Obama issued guidelines to federal prosecutors to defer to state authorities in this area. Congressional budget guidelines also prohibit the Department of Justice from using federal funds to conduct prosecutions if individuals and businesses are operating in compliance with state medical marijuana laws.
Skilled nursing facilities and other senior living facilities (“SNF”) located in states that have legalized medical marijuana are faced with whether or not to deal with medical marijuana use by their residents, and if so, how to do it.
•Can a SNF under these circumstances prohibit all medical marijuana use?
•Typically, the answer is yes. State laws must be consulted; however, at most, as of now, there may be a requirement to adopt reasonable restrictions.
•A SNF can also prohibit medical marijuana and approve the use of FDA-approved drugs that contain synthetically derived cannabinoids.
•Can a SNF discharge a resident for violating the provider’s policies against medical marijuana use? •Probably yes; however, the discharge would be based upon the state law determining an appropriate reason for eviction – e.g., failure to follow SNF policies.
•Can a SNF allow medical marijuana use but limit the manner in which it is used?•Yes. No-smoking policies can be strictly enforced, and therefore require a resident to consume the marijuana in an edible or topical form.
•Are there other considerations? Yes – Care Planning the use of medical marijuana. Marijuana creates physiological effects which must be considered when determining the best approaches to possible side effects.
•Yes – Admissions. Potential residents may begin to factor into their choice of a SNF its medical marijuana policies.
•Laws permitting the use of recreational marijuana – are there additional considerations?•Yes. As with medical marijuana, recreational use must be addressed for possible impact on residents’ well-being, but with an additional area of focus: employee recreational use. SNFs will continue to evaluate employee behavior with respect to judgment, reaction time, and ability to provide professional care; however, there may be a need to update employee handbook policies, addressing the hiring process as well as the possibility of intoxication in the workplace through the use of marijuana.
Skilled Nursing Facilities and other senior living facilities need to review and update policies and procedures to reflect the use of marijuana, both medical and recreational, for their residents and employees, and to consider the SNF’s values, how federal and state laws interplay with each other, and the changing values and preferences of today’s and tomorrow’s residents.
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