Authorization of Medical Marijuana
NOTE: During the 2015 legislative session, the Washington state legislature adopted Senate Bill 5052 which reformed the state’s medical marijuana system. This is a brief primer on the issue, though it should be noted that elements of the reform effort remain in flux. The WSMA is vigilantly monitoring the issue and working with legislators, government agencies and other organizations to ensure new medical marijuana laws appropriately address the interests of physicians and their patients. Check back for more information as this issue develops.
Download a Washington State Medical Marijuana Authorization Form.
Download the Medical Quality Assurance Commission's Medical Marijuana Authorization Guidelines.
Since the passage of Initiative 692 in 1998, Washington state law allows some patients and their primary care givers who have certain qualifying conditions to possess and use a limited amount of marijuana for medical use. It is still against federal law to obtain, possess or cultivate marijuana for any purpose. Marijuana is currently classified as a Schedule I drug, which means that it has no generally recognized medical use.
SB 5798, passed by the legislature in March 2010, adds additional health care professionals to those who may authorize the use of medical marijuana. Besides physicians, the following licensed health care professionals may authorize use of medical marijuana:
- Physician assistants
- Osteopathic physician assistants
- Advance registered nurse practitioners.
Note: SB 5798 also amends the statute so a copy of the authorization from a health care provider is no longer considered to be a valid authorization, a copy of the patient's medical records is no longer a valid substitute for a signed authorization from a physician or other authorized licensed health care professional, and requires a date on the authorization form.
Who is a qualifying patient?
A patient must be under the care of a health care professional (MD, DO, PA, ARNP or ND) licensed in Washington state who has a documented relationship with the patient relating to the diagnosis and ongoing treatment or monitoring of the patient’s terminal or debilitating medical condition. A patient must have been a resident of Washington state at the time of diagnosis, must have been advised by that health care professional of the risks and benefits of the medical use of marijuana and was advised by that health care professional that he/she might benefit from the medical use of marijuana. Finally, a patient must be issued a signed authorization by the health care professional. Authorizations expire up to one year after issuance for patients 18 years of age or older and up to six months for patients less than 18 years of age.
What terminal or debilitating conditions qualify?
The law is very specific about the conditions for which the medical use of marijuana might be appropriate. They are:
- Human immunodeficiency virus (HIV);
- Multiple sclerosis;
- Epilepsy or other seizure disorder;
- Spasticity disorders;
- Intractable pain which is unrelieved by standard medical treatments and medications;
- Glaucoma, either acute or chronic, limited for the purposes of this law to mean increased intraocular pressure unrelieved by standard treatments or medications;
- Crohn's disease with debilitating symptoms unrelieved by standard treatments and medications;
- Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or
- Chronic renal failure;
- Post-traumatic stress disorder;
- Traumatic brain injury; or
- Any disease, including anorexia, which results in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, and/or spasticity, when these symptoms are unrelieved by standard treatments or medications.
What implications are there for physicians in the establishment of a state medical marijuana database?
To date, Washington has been the only state in the nation to authorize medical marijuana without a “registry” or database of valid users. SB 5052 establishes a voluntary patient database, that is scheduled to be operational on July 1, 2016. Certain incentives (i.e. enhanced possession amounts, reduced tax rates) are offered to patients in return for their participation in the database.
After a health care professional provides a patient a signed authorization for medical marijuana, the patient has the option to have a marijuana retailer with a medical marijuana endorsement enter his/her information onto the database. In addition to a patient’s name and authorization number, the name of the authorizing health care professional will also be entered onto the database. The patient will then be issued a medical marijuana recognition card featuring the patient’s name, a unique identifying number and the name of the authorizing health care professional.
Information from the medical marijuana database may only be released in aggregate form, with all personally-identifying information redacted. The Department of Health and health care professional’s disciplining authorities may also utilize the database to ensure compliance with state law by their licensees.
How much marijuana may a patient be authorized to possess or cultivate?
Until the medical marijuana registry comes online on July 1, 2016, patients may possess 24 ounces of usable marijuana and 15 marijuana plants. The 15 plant limit applies even if there are multiple patients or providers in a single domicile.
Once the registry is operational on July 1 2016, the law establishes a two-track system: patients may be authorized a standard/default amount or, if the health care professional determines that the medical needs of a patient exceed the standard amounts, he or she may specify an enhanced authorization level. Specific amounts depend on whether a patient has opted to join the registry and are delineated below.
It’s important to note that the enhanced authorizations are optional for the health care professional. Some feel that specifying a certain amount of marijuana a patient may possess or cultivate too closely resembles a prescription, which may run afoul of federal law. Those physicians who have concerns with authorizing enhanced amounts of medical marijuana may wish to authorize the default amount or refrain from authorizing medical marijuana entirely.
Default authorization levels:
- For those patients entered onto the state registry: Patient may purchase or obtain a combination of: 48 ounces of marijuana-infused product in solid form; three ounces of useable marijuana; 216 ounces of marijuana-infused product in liquid form; or 21 grams of marijuana concentrates. Patient may also grow up to six marijuana plants and possess up to eight ounces of usable marijuana produced from his or her plants.
- For those patients not entered onto the state registry: Patient may purchase or obtain the standard amount of marijuana available to individuals through retail outlets (one ounce of usable marijuana; 16 ounces of marijuana-infused product in liquid form; or seven grams or marijuana concentrate). Patient may also grow up to four marijuana plants and possess up to six ounces of usable marijuana produced from his or her plants.
Enhanced authorization levels (patient must be entered onto state registry to qualify for enhanced authorization levels):
- Health care professionals may authorize patients to grow up to 15 marijuana plants and possess up to 16 ounces of usable marijuana produced from his or her plants. Additionally, the patient may purchase or obtain a combination of: 48 ounces of marijuana-infused product in solid form; three ounces of useable marijuana; 216 ounces of marijuana-infused product in liquid form; or 21 grams of marijuana concentrates.
Is there a limit on how many authorizations a health care professional may write?
There is no finite limit set in statute, though state law does contain several restrictions in this regard. First, a medical practice cannot consist “primarily” of authorizing the medical use of marijuana (prior to SB 5052, state law prohibited a practice from consisting “solely” of authorizing medical marijuana). Until July 1, 2016, a health care professional who, within a single calendar month, authorizes the medical use of marijuana to more than 30 patients must also report to the Department of Health the number of authorizations issued. Information about reporting authorizations can be found here.
What legal protections are established for physicians and other health care professionals who authorize medical marijuana under state law?
For those health care professionals acting in compliance with requirements set in law, the statute protects authorizing health care professionals from being penalized under state law for advising a qualifying patient about the risks and benefits of the medical use of marijuana and providing a qualifying patient with an authorization indicating that the medical use of marijuana might be beneficial.
Requirements for a valid authorization include: conducting an in-person physical examination of the patient; having a documented relationship with the patient relating to the diagnosis and ongoing treatment or monitoring of the patient’s terminal or debilitating medical condition; and documenting in the patient’s medical record other measures attempted to treat the terminal or debilitating medical condition that do not involve the medical use of marijuana. Health care professionals also may not examine a patient for the purposes of diagnosing a terminal or debilitating medical condition at a location where marijuana is produced, processed or sold; may not have a practice which consists primarily of the authorization of medical marijuana; and may not hold an economic interest in an enterprise that produces, processes or sells marijuana.
Does this mean that physicians or the other licensed health care professionals may prescribe marijuana?
No. Physicians or the other authorized licensed health care professionals must not prescribe marijuana. It is prohibited under federal law to knowingly or intentionally distribute, dispense or possess marijuana. The terms "distribute" and "dispense" have been broadly interpreted, and physicians and the other authorized licensed health care professionals may be found in violation of federal law for writing a prescription for a substance, such as marijuana, for which federal law has no recognized medical use. Violation of federal laws can bring significant penalties, including imprisonment and fines. In addition, violating federal law (or aid and abet in its violation) may result in other federal sanctions, such as a revocation of a health care provider's DEA registration.
What documentation and advice should physicians or the other licensed health care professionals give to qualifying patients?
The law defines valid documentation as a statement signed and dated by the qualifying patient's health care professional, printed on tamper-resistant paper, which states that the patient may benefit from the medical use of marijuana in the opinion of the health care professional.
For an authorization to be valid, patients must attest that they have discussed the risks and benefits of the medical use of marijuana with their health care professional, including risks such as possible long-term effects to the brain; impairment of the ability to drive; physical or psychological dependence; and respiratory damage if smoked. The law also stipulates that health care professionals authorizing medical marijuana “may” discuss with the qualifying patient how to use marijuana and the types of products the patient should seek.
Must a physician authorize the use of medical marijuana?
No, there is nothing in the law that requires any physician, or any of the other listed licensed health care professionals, to authorize the use of medical marijuana for a patient.