Doctors Don't Prescribe Medical Marijuana in Hawaii: The Difference Between Certification vs. Prescription

By Hawaiian Ethos Legal Intern, Christopher Takemoto-Gentile

Primary care physicians serve as the gateway to the medical world. Whether you need a checkup for school or have a chronic condition, these doctors are the frontline for all medically related services. Primary care physicians are the go-to doctor for education, consultations, and prescriptions, making them an epicenter for all medical issues. They have the tough task of diagnosing and dealing with a myriad of conditions appropriately.

However, for many primary care physicians the real difficulties stem from the administrative side of things. The truth is that insurance companies set the rate of pay received by primary care physicians, and this rate is often less than the cost of providing services. The public has a high demand for their services, and there is a current shortage of primary care physicians on the islands. As a result, many primary care physicians rely on cash services or grants to be a profitable and thriving practice.

I empathize with these issues because my father and sister are both family physicians. Many nights have been spent at the dinner table talking about foundational and institutional issues of the business. Understanding these basic truths about primary care physicians is essential to clarify because adding the additional service of certifying patients to use cannabis medically may be overwhelming on an administrative level.

What complicates things is a perceived risk that physicians face when certifying patients for use of medical cannabis. Many fear losing their license, federal accreditation, and/or funding as a repercussion of certifying patients. For example, many clinics rely on federal funding programs such as the FQHC (Federal Qualified Health Clinic) to bridge the financial gap created by insurance reimbursements. In all federal funding and grant programs, one of the requirements is to stay “in compliance with applicable Local, State and Federal laws and regulations.” Which provokes the question, is certifying patients to use cannabis medically compliant with Federal laws and regulations?

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Cannabis is federally classified as a Schedule 1 drug, which means the Federal government believes the drug has a high potential for abuse, no current accepted medical use, and a lack of safety for use under medical supervision. In short, physicians cannot prescribe Schedule 1 drugs. If they did, they would no longer be in compliance with the law and would risk both their accreditation and license to practice. Thus, does certifying patients to use cannabis qualify as prescribing marijuana?

In Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), a case brought before the Ninth Circuit court analyzing California’s Compassionate Use Act, the court issued a permanent injunction, supporting physicians’ right to free speech. The injunction prevents the federal government from revoking any physician’s DEA registration merely because the doctor discusses and recommends the use of medical marijuana based on a sincere medical judgment. Furthermore, this applies whether or not the doctor anticipates that the patient will, in turn, use his or her recommendation to obtain marijuana in violation of federal law. They may not initiate any investigation solely based on those grounds. The Ninth Circuit made clear that a doctor’s recommendation or certification is not the same as a prescription for a controlled substance. Therefore, certifying or recommending patient use of medical cannabis is protected by free speech and falls outside of the scope of aiding and abetting or conspiracy to commit a violation of the Controlled Substances Act.

In Hawaii, certifying physicians are protected from federal prosecution as long as they are abiding by all state laws and regulations. The current legal precedence makes it very difficult, if not impossible, for a physician to be prosecuted for certifying or recommending a patient for medical cannabis. Depending on the political climate, however, it is rare, though not unheard of, for physicians or medical cannabis dispensaries to be harassed by law enforcement even if they are following state law.

The slightest perceived chance of government interference is enough to deter many doctors, especially if federally funded, from certifying patients. Many primary care practices do not have the financial means to retain a lawyer and go through legal procedures, even if they do not lead to prosecution. Accordingly, the FQHC accredited clinics’ logical decision not to certify patients is valid.

At the end of the day, the law is written so that sick people can get safe and effective medicine. We as a community are responsible for facilitating the legitimate use of cannabis and, as a result of the media attention and the coconut wireless, patients are going to be asking their healthcare providers about cannabis. Non-certifying doctors should be equipped to handle the questions patients may have about medical cannabis, and have a referral list of doctors willing to certify patients. Beyond the legal implications, all physicians strive to provide a certain standard of care, and by getting a complete picture of a patient’s medications, a physician will be able to provide safer and more effective care.