Authored By: William F. McDevitt, Esq.

Patients and caregivers seeking a prescription for medical marijuana in Pennsylvania must register online, obtain a certification from a physician and obtain an identification card from the Pennsylvania Department of Health. Governor Tom Wolfe announced that more than 6,000 potential patients registered between the opening of the registry on November 1 and November 16, 2017. While the Department of Health has not yet issued identification cards, it is anticipated that thousands of Pennsylvania residents are making appointments with the approximately 169 certifying physicians who have been approved by the Pennsylvania Department of Health.

Physicians may only provide certifications to patients who suffer from one of 17 statutorily defined medical conditions, ranging from autism to spinal cord damage. The patient must be under the continuing care of the certifying physician. “Continuing care” is defined as conducting a “full assessment” of the patient’s medical history and current medical condition. Medical marijuana can be prescribed only if it will provide a “therapeutic or palliative benefit.”

Neither the Medical Marijuana Act (MMA) nor the temporary regulations for physicians or practitioners define how long a medical “assessment” must take. The contents of a certification must include 12 statements by the physician, but does not require physicians to obtain or maintain any specific records to substantiate those statements.

The MMA and the temporary regulations do not specifically define what practices physicians must employ when certifying patients. Penalties for improper certification are, however, expressly set forth. Issuing a medical marijuana certification “intentionally, knowingly or recklessly” to a person who does not qualify under the law is a misdemeanor of the first degree under Chapter 11 of the MMA. Chapter 4 of the MMA provides that a physician may face discipline before the State Board of Medicine or State Board of Osteopathic Medicine, as applicable. By regulation, physicians must acknowledge on every certification that any false statements are punishable under Pennsylvania law relating to “falsification and intimidation.”

In other states, physicians have faced prosecution under multiple state statutes for improperly issuing medical marijuana prescriptions and certifications. In the Colorado Court of Appeals case People v. Montante, 351 P.3d 530 (2015), it was determined that a physician could be prosecuted under (1) a medical marijuana registry statute, (2) a general criminal statute and (3) a statute prohibiting the “improper influence” of public servants. Although the conduct was the same, the court found that the legislature did not limit a physician’s criminal liability to the marijuana registry statute.

Following the reasoning in Montante, a physician who improperly certifies a patient in Pennsylvania could face multiple criminal charges for each improper certification. Both the MMA and the regulations reference the general criminal code (relating to intimidation and falsification) and create a new misdemeanor offense. Pennsylvania physicians who violate the certification requirements of the MMA will likely be required to defend themselves against additional state charges.

 

About the Author

William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at william.mcdevitt@wilsonelser.com.