OH: Medical Board Isn't Blocking Doctors From Recommending Marijuana, Officials Say


Columbus, Ohio – The Ohio State Medical Board on Wednesday further complicated its position about whether or not doctors can issue preliminary medical marijuana recommendations to patients.

Board member Robert Giacalone said during a committee meeting Ohio’s medical marijuana law is not "crystal clear" and the board is not prohibiting doctors from recommending medical marijuana.

But a board-issued statement released last month led many patients and doctors to think otherwise. The statement added to the confusion around Ohio’s new medical marijuana law, angering advocates and patients eager to legally use marijuana as a treatment.

Wednesday’s comments don’t change the board’s previous statement, a board spokeswoman said Thursday.

Do they mean anything? Depends on how you read the board’s original statement and how you interpret the law.

What’s the confusion?

Ohio’s medical marijuana law allows patients with about 20 medical conditions to buy and use marijuana if recommended to them by an Ohio-licensed physician. But it will take up to two years to set up the program and open medical marijuana dispensaries.

By next September, the medical board must develop an official certification process for doctors to issue a written recommendation for medical marijuana. Until the program is operational, the law provides patients an affirmative defense against prosecution for some marijuana charges if they obtain a written recommendation from their doctor and use marijuana as allowed by the law.

Some doctors and the medical board say doctors can’t write recommendations for affirmative defense because they’re not yet certified. And there’s no way for them to become certified at the moment.

The board’s guidance issued last month began, "A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio," which is not expected to happen until sometime next year.

The statement went on to recognize the affirmative defense and advise doctors talk to their attorneys and employers before writing preliminary recommendations.

So, like the law itself, the board’s guidance could be read two ways:

  1. Doctors can’t write recommendations, including affirmative defense letters, because they’re not certified and there’s no process in place to certify them.
  2. If doctors want to write recommendations before then, for the purpose of affirmative defense, then they should talk with a lawyer.

Is there a Catch-22 in the law?

Lawmakers say no.

Sen. Dave Burke, a Marysville Republican who worked on the law, told cleveland.com in September that the law allows doctors to issue affirmative defense letters immediately and guidance from the medical board is unnecessary.

Sen. Kenny Yuko, a Richmond Heights Democrat, said there shouldn’t be any confusion.

"The affirmative defense section spells out everything a physician would need to do to provide patients with this limited, short-term protection without having to wait for the agencies," Yuko said in a statement last month. "It simply wouldn’t make sense to read it any other way."

Rep. Kirk Schuring, a Canton Republican who led the effort in the House, said it will take someone to test the affirmative defense to know how it works in the real world.

"The intent was to give some folks piece of mind that if they really were in dire need of medical marijuana, there was a safe harbor to do it through the affirmative defense," Schuring said.

Is the board changing its position?

Board spokeswoman Tessie Pollock said the board is not changing its position or the statement it released last month. She said Giacalone was addressing public concerns by clarifying that the statement does not prohibit doctors from issuing recommendations for the purpose of the affirmative defense.

About a dozen medical marijuana advocates protested outside the medical board’s Wednesday meeting.

Rob Ryan, executive director of Ohio Patient Network, said Giacalone’s comments show that advocates are not being ignored and they’ll continue to pressure the medical board to revise its stance. Ryan said doctors still need clarity about this issue to feel comfortable recommending marijuana.

What should doctors do?

The Ohio State Medical Association, which represents thousands of physicians and medical professionals, requested the medical board’s guidance. Spokesman Reginald Fields said the association has advised its members to err on the side of caution and wait to recommend until rules are established next year or further guidance is issued.

"The most important thing we’ve told our physicians is that sure, you can go ahead and do [an affirmative defense recommendation]. But if you’re going to do that, be sure you’re consulting with a private attorney," Fields said.

Fields noted that the program is and will be optional for doctors.

Neither the statement nor Wednesday’s comments address whether doctors could face disciplinary action for issuing affirmative defense letters.

The law gives doctors immunity from civil and criminal charges and disciplinary action for recommending medical marijuana to a patient. But another provision says doctors can face disciplinary action if they recommend marijuana without being certified to do so by the state medical board.

An analysis by Benesch Attorneys at Law concluded the immunity provision protects doctors from disciplinary action for issuing affirmative defense letters following the law.

"Not only does it allow doctors to recommend cannabis without fear of losing their medical license or facing criminal penalties in Ohio, including during the affirmative-defense period, but it could also protect them from potential civil malpractice liability to their patients or others," attorneys Jeff McCourt and Dan O’Brien wrote.

Pollock said the board would apply state law, including the immunity provision, when reviewing disciplinary complaints about medical marijuana.

News Moderator: Katelyn Baker
Full Article: Ohio Medical Board Isn’t Blocking Doctors From Recommending Medical Marijuana, Officials Say
Author: Jackie Borchardt
Contact: news@cleveland.com
Photo Credit: Jackie Borchardt
Website: cleveland.com