Marijuana Perception and Legalization

 Once upon a time, Americans viewed marijuana as a dangerous drug leading to serious addiction and crime. According to the 1936 cult classic movie Reefer Madness, “women cry for it and men die for it.” Over time, the perception that marijuana is a dangerous gateway drug has changed dramatically, notwithstanding Attorney General Jeff Session’s views to the contrary.

According to a Pew Research Center survey conducted in October 2017, 61 percent (about six-in-ten) of Americans believe marijuana should be legalized. According to that same survey, 56 percent of Baby Boomers (those 54 to 72 years of age) support marijuana legalization. This same group will soon be populating senior housing and care communities. In fact, in Oregon, the majority of the medical marijuana users are between 60 to 64 years of age.

The legalization trend is also on the rise. As of January 2018, recreational and medical marijuana is legal in eight states — Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington — plus the District of Columbia, and 22 states have legalized medical marijuana.[1]

Marijuana and Senior Care and Housing

Marijuana use in senior housing, such as assisted living communities and nursing homes, poses unique challenges. First, allowing marijuana use in facilities and communities could subject owners and operators to serious enforcement remedies under the Controlled Substances Act (CSA), which classifies marijuana as a Schedule 1 Drug (the same classification as substances like heroin and LSD). Second, nursing homes and assisted living communities also face complex risk-management issues when they allow marijuana use. Some of which we discuss below.

Nursing homes are particularly at risk as they are regulated by both federal and state law.  Because marijuana remains illegal under federal law, nursing homes that permit marijuana use and storage on its premises could be exposed to significant enforcement actions. Under CSA, anyone who knowingly possesses marijuana, leases, rents or controls a place where marijuana is used can be subject to criminal prosecution, forfeiture of assets, such as vehicles, real property and leasehold interests. Furthermore, if the nursing home accepts Medicare, it must comply with certain federal requirements necessary to continue its participation under Medicare. One of those requirements is compliance with federal law. By permitting marijuana use, a nursing facility risks losing its Medicare certification — often its primary source of reimbursement. Consequently, most nursing home operators do not permit any marijuana use on its premises.

While assisted living communities are also subject to CSA, many in Oregon, Washington, Colorado, California and other states where marijuana is legal, do permit the use of medical or recreational marijuana. Often these communities view the use of marijuana as a resident-right issue, and some states, such as California and Colorado actually provide state regulatory guidance on use of marijuana in communities.

Risk Management Issues

If an assisted living community is planning to or already does allow marijuana use, it should be wary of the following issues.

Storage and AdministrationUnder state regulations, assisted living communities are required to store and administer medications to residents, or if self-administered, must confirm that residents can safely store and consume medications. Medical marijuana comes in various forms and there is no standardized dosing. Communities should at minimum, evaluate a resident’s ability to consume/ingest marijuana and ensure others cannot access the marijuana by providing locked storage units.

Primary Caregivers. Some medical marijuana laws (such as those in Oregon and Washington) permit a medical marijuana patient to designate a primary caregiver who can possess and store marijuana on behalf of the patient. A primary caregiver can be owners and staff members of an assisted living community.  Due to the risk of theft, loss and possible enforcement action, we recommend communities have clear written policies for both staff and residents that no assisted living community employee shall serve as a primary caregiver.

Care Planning. Developing and regularly updating an individualized resident care plan is at the heart of assisted living. Because marijuana may affect judgment, interfere with medications, lead to loss of balance/coordination, increase appetite or have other side effects, a community must have robust protocols to assess marijuana use in residents. Failure to do so could lead to significant regulatory citations and even malpractice liability.

 Usage Areas. Most laws legalizing marijuana ban use in public places, including hallways, community areas or visible locations. Clean-air laws also ban smoking or vaping inside public buildings or places of employment. A community should either develop policies limiting where a resident can use marijuana or, to help avoid potential liability, simply ban smoking or vaping of marijuana.

Mobility Devices. Mobility devices can pose difficult challenges on their own, adding marijuana impairment exacerbates that challenge. At a minimum, communities should require residents who use mobility devices to inform the communities if the residents plan to consume marijuana.  The community should assess interventions to reduce the risk of harm to the residents and others. These may include removing electric scooters or wheelchairs until such residents are no longer impaired.  

Best Practices

 Some best practices include:

  • Inform residents at or before admission about your marijuana policies. Surprises are not good in this industry;
  • Assess a resident before use of marijuana to establish a baseline. Care planning is key to minimizing your risk. Consider whether you need a negotiated risk agreement;
  • If a medical marijuana patient, obtain proof of registry card;
  • Inform your staff and residents that you do not permit staff to act as designated caregivers;
  • Do not permit your staff to administer or store useable marijuana, unless required by state law;
  • Do not permit residents to store marijuana plants at your community; and
  • If you allow marijuana, provide state informational brochures about safe and legal marijuana use.

Regardless of whether your community or facility permits marijuana use, it should have robust written policies and procedures addressing the use and storage of marijuana and take into account the risk management issues discussed above. For more information, including additional best practices, please do not hesitate to contact us.

[1]Marijuana Legalization by the Numbers,” CNN (January 4, 2018)

 

Gabriela Sanchez

As Co-Chair of Lane Powell’s Senior Living & Long Term Care team, Gabi Sanchez has devoted her career to understanding the challenges faced by long term care, senior housing, and home health and hospice providers. Gabi takes great pride in offering an integrated suite of services to her clients, providing compliance, regulatory, and risk management advice.

Jeff C.D. Brecht

Jeff Duncan Brecht has more than 20 years of trial experience representing businesses and individuals in state and federal court and administrative venues.

Jeff advises and represents businesses, employers, fiduciaries and other individuals on business disputes, workplace issues, regulatory compliance and adverse agency actions, and trust and estate, will contests and fiduciary-related disputes. In addition to his litigation practice, he trains and advises employers, senior living and long term care providers, and other businesses, on regulatory compliance, privacy and data security issues, and lawful employment practices and assists in conducting regulatory and workplace investigations.