In November of 2012, voters in Massachusetts overwhelmingly passed Question 3: An Act for the Humanitarian Medical Use of Marijuana. The law passed with 63% of the vote making a strong statement that the people of the Commonwealth of Massachusetts truly support the rights of their friends, neighbors, and family to use cannabis as a medicine. Over the past months the State Department of Public Health has developed a complex framework to regulate the emerging industry and guide the implementation of the Act.
While the medical cannabis industry in Massachusetts is just beginning, there are a lot of lessons we can learn from our friends across the nation who have traveled down this road before us. There is no mistaking that Massachusetts has put forth some of the most detailed regulations in the country, making it of the utmost importance to really understand what they mean for you, your business, and for the community at large.
The reality is that cannabis is evolving daily, and we must embrace and encourage this evolution. There is an exciting industry being developed, but there is still a lot of opposition to overcome based on decades of misinformation about this wonderful plant, and its many uses. This is an industry where just by being a part of it you have automatically signed up to be an activist for this cause.
WHAT DO THE REGULATIONS MEAN FOR ME AS A PATIENT?
First and foremost they mean you have access to your medicine without fear of arrest or prosecution. That is awesome. Be aware the program is set up to be more stringent than in some other states, which means there are extra hurdles for patients and physicians to clear in order to meet the definition of a “bona-fide physician-patient relationship.” This definition is one of many measures in the program intended to prevent abuse of the system, and is the likely product of the perception that rules concerning the physician-patient relationship in other states have been lax. . Despite such controls, regulations also allow room for patients and physicians to make the right choice for their health. The bottom line is more paperwork for everyone involved. In other states we have seen a loosening of these restrictions to allow for more patients to be involved with the program through an expansion of rights.
The Registration Process
To become a patient in Massachusetts you must have a “debilitating medical condition.” The Department of Public health defines this as meaning:
Cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, and multiple sclerosis (MS), when such diseases are debilitating, and other debilitating conditions as determined in writing by a qualifying patient’s certifying physician.
The last sentence is important because it allows practitioners to make educated decisions on their patients’ health. The Department defines “debilitating” as follows:
Debilitating means causing weakness, cachexia, wasting syndrome, intractable pain, or nausea, or impairing strength or ability, and progressing to such an extent that one or more of a patient’s major life activities is substantially limited.
While those definitions are clearly aimed at limiting who can, and cannot, be a part of the program the reality is that almost any condition can impair a person’s strength and ability, and limit activities. That is what medical conditions do to people. They debilitate them. So the law clearly allows for a physician to make the call if your condition is debilitating to you, and if cannabis will help. That is good news. Attempting to limit people who find relief from cannabis by arbitrarily defining who is, and is not, sick enough to use a safe and non-toxic whole plant medicine is absurd. It is hopeful that medical practitioners will defend their right to do what is best for their patients in regards to using cannabis.
In the definition of “bona-fide physician patient relationship” the regulations state that the physician must be “acting in the usual course of his professional practice.” What this means is that a doctor who is a psychologist cannot begin pumping out recommendations for patients with chronic pain, or movement disorders. Does this mean there are not doctors specializing in cannabis? No. But they will have to only see patients that fall under their area of expertise or specialization.
As a patient, you must define your condition and be prepared to explain how it is debilitating for you in the context outlined in the definition of “debilitating” listed above.
So now you have made the choice to use medical cannabis and to become a “Registered Qualified Patient” under the state program to be afforded the protections of the Act, and to participate in the dispensing or hardship cultivation aspects of the program. What does that look like?
- First you must locate a physician that, “in his usual course of professional practice” is willing to certify that “the potential benefits of the medical use of marijuana would likely outweigh the health risks” for you personally. Many local advocacy organizations keep a list of practitioners who are open to the use of medical cannabis and are willing to certify patients. Also, physicians who have been cleared to certify cannabis patients advertise their services.
- Physicians are required to complete and document “a full assessment of the patient’s medical history,” and so you should be prepared to show the physician any medical records you have that verify your condition. In order to meet the definition of “bona-fide relationship” the physician must conduct a clinical visit, complete and document a full assessment of the patient’s current medical condition, explain the potential benefits and risks of marijuana use, and must have a role in the ongoing care and treatment of the patient. This means the physician has to have the ability to offer follow up care to the patient, including examinations to determine the efficacy of medical cannabis on your condition. This is the same type of relationship required under Colorado law and it seems to be working fine for patients there.
- The doctor is required to check the Massachusetts Prescription Monitoring System to ensure you are not using other medications that may conflict with cannabis use, or if there is an abuse issue to worry about.
- The physician must designate a time period for how long the certification is valid. That means a doctor can choose to only allow you to use cannabis for a short time, or that they can authorize you for up to a year. You are allowed 10 ounces of cannabis every 60 days unless your physician decides you need more or less. Some patients may need more for high-dose treatments, or because they consume it through a method that takes a lot of material to produce, such as foods.
- If the patient is under 18 they must have two physicians certify them, and one must be a pediatrician.
- After receiving written certification from your doctor you are required to register with the state. The Department has determined an application and/or system for registering. You are required to submit your personal information (address, phone, etc.), your written certification, your doctor’s contact information, whether you are applying for a hardship cultivation registration, copy of an official ID, and acknowledgment statement on program limits, a statement that you will not divert your medicine and that it is only legal in Mass, as well as pay a $50 annual fee.
- Your registration is valid for one year, as long as your written certification is also for one year. Once your certification is expired so is your registration card, unless your physician renews you.
- If you applied while the program was being developed, and used your written certification as your initial registration card you have to apply for an official card when the online registration system becomes operational.
- If any of the information you submitted to the Department changes, you have 5 days to notify them. So if you move, you have to let them know. You also have to let them know if your card was lost or stolen within 5 days.
- DPH has the right to deny, or revoke, your registration card for a number of reasons, including failure to provide info, misleading or false info, failure to meet requirements, you were already denied/revoked in the last 6 months, failure to pay fees, violation of the Act or regulations, fraudulent use of your card, selling or distributing your medicine to others, tampering or falsifying your card, failure to notify within 5 days of a change or lost/stolen card, or you put others at risk by using cannabis.
- You will receive written notice of your denial/revocation and have 21 days from the date on the notice to request a hearing. The Division of Administrative Law Appeals will conduct the hearing. You have the right to have the hearing reviewed by the Superior Court if necessary.
HOW CAN I BE APPROVED FOR A HARDSHIP CULTIVATION REGISTRATION?
In order to apply for a hardship cultivation registration the patient must demonstrate that they cannot get to, or afford to go to, a registered dispensary. Here are the limitations one must have to qualify for hardship cultivation:
- If you are financially limited, meaning you are receiving MassHealth benefits, Supplemental Security Income, and/or your income doesn’t exceed 3x the poverty level, or $34,470 for a single person/$70,650 for a family of 4.
- You are physically incapable of accessing reasonable transportation. This means you have to have no ability to drive, no access to public transit, no caregiver who can drive, and no dispensary that will deliver to you. You don’t live near a dispensary and no dispensary will deliver to you. What is a “reasonable distance” is anyone’s guess but 25 miles has been used in other programs. Because of this it is likely the state will work to spread the dispensaries out to cover the most real estate.
In order to obtain a Hardship Cultivation Registration, you have to apply in a form or system similar to that for a patient registration; but you also have to include information on where and how the cannabis is being cultivated. You have to submit evidence that you meet the requirements above and have limited ability or access to a dispensary. You have to inform them of how you plan on securing the grow site and prevent diversion of the plants. Cultivation must happen in an enclosed locked area, and may not be visible from the street or public areas. You have to submit the address where the cannabis is being grown, and that site may be inspected at any time. By accepting a hardship registration you automatically consent to search of your property.
WHAT DO THE REGULATIONS MEAN FOR ME AS A CAREGIVER?
A personal caregiver is defined by the Department as follows:
Personal Caregiver means a person, registered by the Department, who is at least 21 years old, who has agreed to assist with a registered qualifying patient’s medical use of marijuana, and is not the registered qualifying patient’s certifying physician. An employee of a hospice provider, nursing, or medical facility or a visiting nurse, personal care attendant, or home health aide providing care to a qualifying patient may serve as a personal caregiver, including to patients under 18 years of age as a second caregiver.
In order to register as a caregiver with the Department a person must submit an application similar to that of the qualifying patient they are caring for which includes personal information (address, phone, etc.) and a statement that you are at least 21 years old. You need to also provide the same information for the qualifying patient that you care for. You have to give them a copy of your identification documents. The caregiver must state if they are going to cultivate, and where if the patient is applying for a hardship registration. A written statement acknowledging your limitations, as well as an attestation that you will not divert the medicine is also required.
A caregiver must be granted a card before they can begin caregiving legally. If you registered before the program was in place, you have to register for an official card. You are not allowed to get paid for your work beyond your costs incurred, and your time and effort is not considered a valid cost. You can only be a caregiver for one qualifying patient, but one patient can have two caregivers to assist them. If there are two caregivers, they can only cultivate at one location. Your registration is valid for one year, or until the qualifying patient’s certification expires, unless it is being renewed. You also must submit any changes in information submitted, or if your card is lost or stolen within 5 days.
If you are a registered caregiver your responsibilities ARE:
- Transporting your patient to and from the dispensary
- Obtaining and transporting medical cannabis from a dispensary for your patient
- Cultivation Cannabis for your patient if they have a hardship cultivation registration
- Preparing Cannabis fro the patient, includes cooking or extraction
- Helping you patient use cannabis
A registered caregiver MAY NOT:
- Use cannabis that was dispensed to, or grown for, the qualified patient
- Sell, give away, or in any way provide the patient’s medical cannabis to anyone but
- Grow cannabis for themselves, unless they too are a qualified patient with a
- Grow cannabis to sell or give to anyone but the registered qualifying patient
- Allow a patient under 18 to possess cannabis not in their presence
If your role as a caregiver is as an employee of a hospice provider, nursing, or medical facility or a visiting nurse, personal care attendant, or home health aide providing care you cannot cultivate cannabis on behalf of the patient.