Requirements for Physicians to Order Cannabis for Patients in Florida

September 3, 2019 |

The ever-changing regulatory landscape in the world of medical marijuana treatment makes it difficult to navigate.  Most patients, providers, and lawyers don’t quite get it.  Misunderstanding the law can result in patient and provider arrest, revocation of professional license, and civil litigation.  This author prosecuted the first case of its kind in Florida, resulting in permanent revocation of a Florida physician’s license for violating Florida cannabis laws.  Understanding the state of the law is critical.  A brief history follows.

Since the enactment of The Controlled Substance Act of 1970, cannabis has been illegal in the United States.  Under Federal law, cannabis is classified as a schedule I controlled substance, which means it has no accepted medical use and has a high potential for abuse. Many states have made cannabis readily available, but that doesn’t change the status of the Federal laws. Today, cannabis remains illegal under Federal law, which means though cannabis is available in Florida, it is still illegal to cultivate, possess, distribute, or consume in any of the United States.

In a landmark decision in 1991 in Florida First District Court of Appeal, a Florida court first recognized “medical necessity” as an affirmative defense to marijuana cultivation charges.  SeeJenks v. State, 582 So. 2d 676 (Fla.1stDCA 1991). Contrary to the understanding of many lawyers and doctors, this decision did not authorize a patient to cultivate, possess, distribute, or consume cannabis out of medical necessity.  Rather, a person would be arrested for these offenses but could later raise medical necessity as an affirmative defense to the crime.

In 2014, the Florida legislature acknowledged medical value in low-THC cannabis by passing the Compassionate Medical Cannabis Act.  This Act authorized qualified physicians to order low-tetrahyrdocannabinol (“THC”) cannabis for qualified patients.  THC is the psychoactive chemical component in cannabis. The legislature instructed the Florida Department of Health to create the Office of Compassionate Use to regulate the cultivation, distribution, and consumption of low-THC cannabis.

Just two years later, in a 2016 constitutional amendment, Florida voters made clear their desire for full-potency cannabis in the medical industry. The constitutional amendment passed with a popular vote of 71%.  In response, the legislature enacted § 381.986, Florida Statutes, directing the Department of Health to promulgate rules governing cultivation, possession, distribution, and consumption of cannabis.

In addition to registering as an ordering physician with the Department of Health, § 381.986, Florida Statutes, requires a physician to conduct an in-person physical examination of the patient.  This means a physician cannot order cannabis for a patient after merely examining a patient via telemedicine.  Additionally, the statute requires physicians to:

  • diagnose the patient with a qualifying condition;
  • determine the benefits of cannabis outweigh the potential health risks for the patient;
  • determine whether the patient is pregnant;
  • review the patient’s prescription drug history in the Florida prescription drug monitoring database;
  • ensure the patient does not have an active certification from another physician;
  • register the issuing physician for the patient in the medical marijuana use registry;
  • obtain voluntary written consent from the patient; and
  • document certain information in the patient’s medical record.

Initially, regulators prohibited cannabis in traditional smokable forms, but in recent litigation, this prohibition was deemed unconstitutional. Consequently, now a physician may order smokable cannabis for a patient, but only if the physician notifies the board of a list of other routes of administration tried by the patient, the length of time tried, and an assessment of the effectiveness of those routes of administration.  The physician must then submit research to the applicable board; document the effectiveness of smoking as a route of administration to treat similarly situated patients with the same condition, and provide a statement that in the physician’s opinions, the benefits of smokable cannabis outweigh the risks.  A patient must also be over the age of 18 for a physician to order smokable cannabis, unless the patient is terminally ill. In that case, additional legal requirements apply to physicians.

This is not intended to be legal advice, or an exhaustive list of regulations placed on ordering physicians in Florida, but rather, a summary of the change in the laws and some of the current requirements placed on ordering physicians.  The attorneys at Andrews, Crabtree, Knox & Longfellow are prepared to advise physicians on compliance and enforcement matters related to ordering cannabis for their patients in Florida.

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