Carolyn Buppert, MSN, JD
A patient asks an advanced practice registered nurse (APRN) to approve them for "medical marijuana." What are the clinician's responsibilities?
The first hurdle is legal. In 18 states, an APRN has the legal authority to certify a patient to use marijuana as a medical treatment. But it's not as simple as signing a form. There are requirements about the nature of the patient-provider relationship — that it be "bona fide," which state law defines — as well as requirements regarding the clinician's credentials, such as the precertification evaluation, the diagnoses that qualify, the written certification, renewal, and more.
Tracy A. Klein, PhD, ARNP
In this article, we identify the legal responsibilities of APRNs related to medical marijuana, provide the questions for clinicians to answer before getting involved, and direct the reader to the laws of each state that govern the certification process.
First, some notes about terminology. Although the term "cannabis" is the proper botanical term, half of the state statutes use the term "marijuana," so these terms will be used interchangeably as appropriate. Many states' laws refer to APRNs, some refer to advanced registered nurse practitioners (NPs), some to simply NPs, and one (Colorado's) to advanced practice practitioners. We will use the term "APRN." In addition, most states use the term "certify" to refer to authorizing the use of medical marijuana, but some states use "recommend," "verify," or "authorize." We will use "certify."
Preparing to Certify a Patient for Medical Use of Cannabis
We recommend that APRNs answer the following questions before certifying a patient for medical use of cannabis:
Does my state authorize me to certify a patient for medical use of cannabis?
Does the patient have a condition on my state's list of qualifying conditions?
Does my state require that the certifying provider be the provider who is following the condition for which the patient is certified? Am I that provider?
Do I have a bona fide relationship with the patient, under my state's definition?
Have I conducted a visit, performed an evaluation, made a diagnosis that qualifies the patient under my state's law, and decided that the benefits of medical cannabis outweigh the risks for this patient, and have I documented all of this?
Am I prepared to and willing to provide follow-up to this patient?
Have I explained the risks?
Does my patient have other conditions, such as pregnancy, that may affect a legitimate medical recommendation for use?
Do I know what my state requires regarding the written certification?
Does my state require me to check the prescription drug monitoring database before I certify the patient?
Have I confirmed whether any of the patient's other medications interact with or contraindicate the use of cannabis?
Does my state require me to complete specified continuing education regarding medical cannabis, and have I completed it?
Under my state's laws, can I conduct the visit via telehealth?
Is the patient a family member, and if so, does the state prohibit me from certifying a family member?
What is my relationship, if any, to a dispensary? Does my state have regulations on clinician relationships with dispensaries?
In my state, is my authority to certify complete, or is it restricted to certain settings, certain forms of cannabis, or certain types of patients?
Is the patient a child? If so, does my state have special requirements that apply to children?
How long does the certification last? What are my obligations regarding renewal?
If there comes a time when I no longer believe the patient has a qualifying condition or that cannabis will help the patient, must I rescind the certification?
Does my state relieve me from being prosecuted or disciplined if I certify a patient, given that cannabis is still illegal under federal law?An APRN may certify a patient for medical use of marijuana in 17 states and the District of Columbia (Table 1).
| Table 1. States Where APRNs May Certify for Medical Marijuana |
|---|
| Colorado (only for "disabled" patients) District of Columbia Hawaii Illinois Iowa Massachusetts Maryland Maine Minnesota North Dakota New Hampshire New Mexico New York Rhode Island Utah Virginia (for cannabis oil) Vermont Washington |
Qualifying conditions vary from state to state. APRNs will need to check their state's law for a current list applicable to their state. A long list of medical conditions may qualify patients in at least one state (Table 2).
| Table 2. Conditions That Qualify for Medical Marijuana in At Least One State | |
|---|---|
| Alzheimer's disease Amyotrophic lateral sclerosis Anorexia nervosa Anxiety disorder Arnold-Chiari malformation Arthritis, inflammatory autoimmune-mediated Autism spectrum disorder Back pain, chronic Brain injury Bulimia nervosa Cachexia, chemotherapy-induced anorexia, wasting syndrome Cancer Cirrhosis, decompensated, caused by hepatitis C Crohn's disease Dystonia Ehlers-Danlos syndrome Endometriosis Epilepsy Fibromyalgia Fibrous dysplasia Glaucoma Hepatitis C HIV Huntington disease Hydrocephalus Inclusion body myositis Interstitial cystitis Irritable bowel syndrome Limb pain, residual Lupus |
Migraine Muscle spasms, severe or persistent Muscular dystrophy Multiple sclerosis Myasthenia gravis Myoclonus Nail-patella syndrome Nausea, intractable Neuro-Behçet autoimmune disease Neurofibromatosis Neuropathy Osteoarthritis Pain, moderate to severe Pancreatitis, chronic Parkinson's disease Peripheral neuropathy, painful Polycystic kidney Polyneuropathy, chronic inflammatory demyelinating Posttraumatic stress disorder, moderate or severe Reflex sympathetic dystrophy Rheumatoid arthritis Sleep apnea, obstructive Sjögren syndrome Spasmodic torticollis Spinal cord injury, stenosis, or disease Spinocerebellar ataxia Superior canal dehiscence syndrome Syringomyelia Traumatic brain injury Tourette syndrome Ulcerative colitis |
Bona Fide Professional Relationship With the Patient
All state laws require a clinician to have a "bona fide professional relationship" when certifying a patient for medical use of cannabis. Massachusetts' language is typical:
"Bona fide healthcare professional-patient relationship" [is defined as] a relationship between a registered healthcare professional, acting in the usual course of his or her professional practice, and a patient in which the healthcare professional has conducted a clinical visit, completed and documented a full assessment of the patient's medical history and current medical condition, has explained the potential benefits and risks of medical use of marijuana, and has a role in the ongoing care and treatment of the patient.
This requirement is important in that it tells clinicians not to open storefronts offering automatic certification to the public for a price. Ideally, certification for medical cannabis arises out of an existing patient-provider relationship. The clinician who knows the patient should be the one to certify the patient. However, some clinicians don't want to involve themselves in the certification process. A clinician isn't obliged to certify a patient, even though the patient has a qualifying condition. An example is the patient who has glaucoma — a condition on most states' list of qualifying conditions — and whose ophthalmologist, for personal reasons, doesn't want to provide the required certification. That patient may present to the office of another clinician and ask to be certified. The second clinician may certify under most, but not all, states' laws. It is important that APRNs look up the law of the state where practicing, because these laws vary considerably. For example, Vermont requires a patient relationship of at least 3 months' duration, with some exceptions, before a clinician certifies for medical marijuana.
The majority of states require that the certification evaluation include a visit, history and physical exam, diagnosis or verification of a diagnosis made elsewhere, and documentation of the assessment and the clinician's opinion that cannabis is likely to help treat the patient's condition. Some states allow the certification visit to be via telehealth. Some states require the initial visit to be in person, but the visit at which certification takes place may be conducted via telehealth. Some states allow renewal via telehealth, and some states do not allow telehealth visits at all for the purposes of cannabis certification. At least one state (Colorado) has temporarily suspended the requirement for in-person evaluation for certification, owing to the pandemic.
Some states require that the clinician explain the risks and benefits of medical marijuana. Some states say the clinician "may" discuss the risks and benefits. Some states require the clinician to review a patient's records. Most states require that the clinician be involved in the ongoing care of the patient.
Some states do not allow the clinician to charge for the certification, though charging for the evaluation is permissible. Most states do not allow a certifying clinician to have a relationship with a dispensary. However, Pennsylvania law requires dispensaries to have a physician, NP or physician assistant (PA) on staff.
Written Certification
States vary in their requirements about what the clinician must write in order to certify a patient.
A typical example is Illinois law, which requires the clinician to state, in writing:
(1) The qualifying patient has a debilitating medical condition, specifying the condition;
(2) The certifying healthcare professional is treating or managing treatment of the patient's debilitating medical condition;
(3) The healthcare professional has a bona fide healthcare professional-patient relationship; and
(4) The healthcare professional has conducted an in-person physical examination and a review of the patient's medical history, including reviewing medical records from other treating healthcare professionals, if any, from the previous 12 months.
North Dakota requires the clinician to continue to provide the patient with follow-up care in order to monitor the medical use of marijuana as a treatment, and the clinician must attest that the relationship is not for the sole purpose of providing written certification for the medical use of marijuana.
Some states provide a form for the certification.
Additional Clinician Responsibilities in Law
Some states require the following:
That the clinician has completed specified continuing education;
That the clinician checks the state's prescription drug monitoring program before certifying a patient;
That the clinician determines, on an annual basis, whether the patient continues to have the debilitating medical condition, and if so, to issue the patient a new certification of that diagnosis;
That the clinician notifies the state if the patient no longer has a qualifying condition, or that cannabis isn't helping the condition, or that the patient has died;
That the clinician writes the certification on tamper-resistant paper; and
That the clinician refrains from certifying self or family members.
Most states relieve a qualified certifying provider who is following the certification rules from criminal prosecution or licensing board discipline. This is important because cannabis is still illegal under federal law.
Guidance for APRN practice is found first in state law and the Nurse Practice Act, as discussed above. In addition, boards of nursing and professional organizations that represent nurses may have their own policies or policy statements. Although these do not have the force of law, they do establish a standard of practice against which practice is evaluated. As with state law, these policies will vary, and when held side by side with state law may expose areas which are gray or unclear to the APRN.
In the following section, we will discuss issues in state law or policy which may be particularly confusing for APRNs. We will then advise principles to follow that will assist APRNs in staying out of trouble with cannabis authorization or recommendations.
It is always the decision of the APRN to refer or decline a request for cannabis authorization on the basis of their clinical judgment and assessment of the patient, even if a prior authorization has been issued.
Issues Arising in States that Allow APRNs to Certify
Although state law may permit an APRN to authorize cannabis, the requirements to do so may differ from those for physicians or other practitioners. This can be confusing for APRNs who practice in a multidisciplinary setting. As an example, in Colorado, NPs can certify only if the patient has a "disabling" condition, whereas MDs can certify for a wider array of "debilitating" conditions. A disabling condition is defined as posttraumatic stress disorder as diagnosed by a licensed mental health provider or physician; an autism spectrum disorder diagnosed by a primary care physician, physician with experience in autism spectrum disorder, or licensed mental health provider acting within his or her scope of practice; or a condition for which a physician could prescribe an opioid.
Certification for medical cannabis may also be very limited in scope for all health professionals. As an example, in Virginia, physicians, PAs and NPs can certify use of cannabis oil, but not a wide array of cannabis products. NPs and PAs were added as authorizers in 2019. Incremental steps are being legislated in that state to permit broader authority and decriminalize possession of cannabis. Close monitoring for changes in state law is advised.
Changes in state supervision or collaboration laws can leave gaps regarding when and how an APRN may authorize medical cannabis. As an example, Massachusetts requires the supervising physician to attest that the NP is certifying patients for medical use of cannabis pursuant to the mutually agreed upon guidelines between the NP and the physician supervising the NP's prescriptive practice. Massachusetts just gave NPs full practice authority, so there is a conflict of laws between these requirements.
Illinois recently amended its laws to include authorization by healthcare professionals other than physicians. In doing so, state legislators acknowledged explicitly that there can be conflicts between medical and recreational cannabis law in states where both are legal. This is a particularly thorny area of practice because both patients and practitioners often misunderstand the differences between recreational and medical use. Illinois law specifies that "[t]o the extent that any provision of this Act conflicts with any Act that allows the recreational use of cannabis, the provisions of that Act shall control."
Issues Arising in States That Do Not Allow APRNs to Certify
What if the APRN just wants to discuss the potential use of cannabis with a patient? There may be legal implications to doing so. In states that allow only physicians to authorize medical use of cannabis, such as Oregon, the Board of Nursing has issued a policy that interprets discussion of cannabis for medical conditions as a recommendation which is akin to authorization and therefore the purview of a physician. The inclusion of cannabidiol in this policy increases the confusion, because cannabidiol with less than 0.3% tetrahydrocannabinol by dry weight is legal nationally under the 2018 Farm Bill and is available over the counter in a majority of states.
State law may also be confusing regarding which functions an NP may perform in states where they cannot authorize. For example, in Pennsylvania, NPs cannot certify; however, all dispensaries are required to have a physician on staff and if there are multiple dispensaries in the company, a NP or PA may be substituted in for the physician. It's not clear from statute what the NP or physician is supposed to do at the dispensary.
Many states (15, as of the 2020 legislative session) have legalized recreational or "adult use" cannabis, and patients may therefore access it without medical authorization. Use of cannabis without a healthcare authorization for a medical condition is recreational use under the law, even if the use is assistive to the patient. As noted before, one of the key benefits of being clearly specified in law as an authorizing practitioner is the exemption from liability for discussion or recommendation for a legitimate medical condition.
Clinical Guidelines and Best Practices
The National Council of State Boards of Nursing (NCSBN) issued comprehensive guidance in 2018 that addresses education and practice regarding medical cannabis. Regardless of the nuances of individual state law, it is clear that nurses at all levels have a responsibility to become educated about medications or substances a patient may be using. The NCSBN also notes that there are many conditions for which cannabis is approved in law that don't have clinical evidence to support this use; examples include autoimmune conditions, such as lupus and Sjögren syndrome. This points to the need for the prudent clinician to establish and reestablish a clinical diagnosis that is both specific to the authorization of cannabis and clinically supported. Whereas an autoimmune condition, for example, may not be a condition for which cannabis could or should be authorized, pain related to that condition might be.
Wilson and colleagues have published a model for conversations between patient and clinician that allows incorporation of well-established shared decision-making models for clinical interactions to be applied to cannabis. The authors suggest an initial scan of state law. They identify that either the patient or the clinician may be the person to bring up cannabis use in the context of a clinical encounter, and both have the responsibility to establish shared goals, compile evidence, evaluate evidence, formulate a plan, and monitor and evaluate any outcomes related to cannabis use.
This open process of dialogue is not the same as recommending or advocating for cannabis one way or the other. Patients have open access to many resources that are not clinically reviewed or evidence based, as well as broad access to cannabis, whether legally or illicitly. A knowledgeable clinician can help a patient understand not only why cannabis may be beneficial but also why it may not, or when it may be contraindicated. The clinician can verify whether other options have identified or tried. This is very similar to what most states now require for prescribing opioids, even though the two are not the same in law. General prescribing principles, including shared decision-making and consent, apply to certification and authorization of controlled substances such as cannabis, even though it is not a prescription medication in the United States.
In 2017, the National Academy of Sciences, Engineering, and Medicine published a comprehensive analysis of research on the use of cannabis for specific medical conditions or symptoms. As suggested in the shared decision-making model, one component of the clinician role is to jointly appraise evidence with patients who inquire about cannabis use. This can be a helpful resource for a discussion on what is known to date about medical use of cannabis for a specific medical condition.
Avoiding Pitfalls
Finally, we offer a few general principles for APRNs regarding cannabis and clinical practice, based on our overview of law and policy.
Document all medications and substances (including cannabis) used by the patient as part of a routine health assessment. Although patients may be reluctant to reveal cannabis use, confidential and objective assessment is beneficial to understanding relevance to a patient's medical or mental health condition.
Do not offer to authorize cannabis for a patient without appropriate physical assessment, documentation of diagnosis, and indication.
Do not be persuaded by friends, family, acquaintances, employers, or colleagues who may ask you to qualify someone for use of medical cannabis outside the course of usual medical practice. Your authority to certify is conditioned on following the requirements of state law, and state laws require that you apply the usual medical evaluation process when certifying for medical use of cannabis.
Recheck state law, at least yearly, to be sure that no new requirements have been added since your last check.
Follow Medscape on Facebook, Twitter, Instagram, and YouTube
Medscape Nurses © 2021 WebMD, LLC
Any views expressed above are the author's own and do not necessarily reflect the views of WebMD or Medscape.
Cite this: Certifying Medical Cannabis: What APRNs Need to Know - Medscape - Jan 05, 2021.
Comments