By Randall R. Fearnow and Jaya F. White, Quarles & Brady LLP
We recently noted in a previous article that Indiana is now surrounded by three states that have legalized recreational and/or medical cannabis, and one state (Kentucky) is a major legal hemp producer. While medical and recreational cannabis is currently illegal in Indiana, it is not difficult to foresee that some Indiana health facility residents, particularly assisted-living residents, will acquire cannabis legally in other states as recreational consumers or as medical recipients authorized in a neighboring state.
Hemp-derived cannabidiol (CBD) products are now permissible under both Indiana and federal laws since passage of the 2018 Farm Bill. As recently as September 13, 2019, the Southern District of Indiana concluded in C.Y. Wholesale, Inc., et al. v. Eric Holcomb, Governor in his official capacity that the 2018 Farm Bill preempts more restrictive state laws, thus preventing Indiana from enforcing the provisions of its law imposing criminal penalties related to “smokable” hemp.
Despite medical cannabis legalization by 33 states and the District of Columbia and the national legalization of hemp-derived CBD, marijuana still remains a Schedule I controlled substance under federal law. Simple possession of marijuana is punishable in Indiana by up to 6 months in jail and a $1,000 fine. These laws though have failed for years to deter the use of cannabis which has become increasingly more accepted, particularly by people 65 and older. Clashes between consumer choice and restrictive state and federal laws seem inevitable.
The Centers for Medicare and Medicaid Service (CMS) provided some guidance recently to state health facility regulators on medical marijuana. The agency advised that:
- the conditions of participation for skilled nursing facilities do not explicitly address the use of medical marijuana;
- although CMS regulations require a facility to comply with all applicable federal, state and local laws, the agency indicated it would not cite to this regulation unless the authority having jurisdiction has made an adverse finding; and
- CMS is not aware of a facility that has lost funding or been penalized for allowing residents to use medical marijuana, but there have been citations for related issues, such as the improper storage of medications and fire safety.
Given that some elderly Indiana residents are likely to be in possession illegally of cannabis or are legally self-administering CBD products, how should Indiana health facilities address the issue in their policies? As a legal product, CBD now presents the same issues encountered with the self-administration of any other over-the-counter medication. Cannabis is more complicated though.
A person domiciled in Indiana could well reside part of the year in Florida and become eligible to purchase medical marijuana in that state. Reporting by the Sarasota Herald-Tribune suggests that "70 to 80 percent of the people who buy [Medical marijuana in Florida dispensaries] are seniors." When these seniors return to Indiana in the summer by car, they will probably bring their marijuana with them. The long term care facilities those seniors enter when it is time for them to be back home again in Indiana with their families will be faced with a dilemma. Possible policy solutions for facilities include:
- banning all cannabis products and enforcing the ban;
- banning all smoking (including tobacco) and looking the other way on pot edibles; or
- banning all cannabis products and looking the other way until someone complains.
In weighing these and other alternatives, Indiana long-term care providers dependent on Medicare and Medicaid would be wise to remain a bit paranoid despite the mild reassurance by CMS and impose an official ban, so long as the current Indiana and federal laws remain in place.
It will be interesting to see where advocacy groups promoting compassionate care for the elderly and long-term care industry groups seeking to avoid regulatory problems come down on the practical implications of (with a nod to the Coen Brothers) the "new freedoms" enjoyed by seniors in surrounding states.
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