On May 25, 2016, the Ohio General Assembly passed House Bill 523 (HB 523) that legalizes the use of particular forms of marijuana to treat certain medical conditions. Governor John Kasich signed the bill into law on June 8, 2016, and it went into effect on September 8, 2016.
A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio (SMBO). Per HB 523, the rules outlining the standards and process needed to obtain such a certificate to recommend will be developed by Friday, September 8, 2017.
As a way to protect patients and parents or guardians of minor patients who seek to use marijuana prior to the creation and implementation of all the administrative rules necessary to run the Ohio Medical Marijuana Control Program, HB 523 created an affirmative defense for certain marijuana-related crimes. According to the law, a patient, parent, or guardian can only raise an affirmative defense if they have, among other requirements, received a written recommendation from his or her doctor that certifies a certain number of criteria are met. The SMBO recommends that physicians consult with their private legal counsel and/or employer for interpretation of the legislation.
The SMBO recognizes that as a result of the requirements of the affirmative defense, physicians will face potentially challenging inquiries from patients during the time period between the effective date of the statute and the date when the certificate to recommend process is fully operational with the SMBO. The SMBO will conduct a thorough process in the promulgation of rules related to the certificate to recommend.
The system will be overseen by the Ohio Department of Commerce, the State of Ohio Board of Pharmacy (SOBP), the SMBO, and an appointed advisory committee.
HB 523 set up a highly regulated “seed-to-sale” system for growing, processing, testing, and dispensing marijuana for people with any of 20 specified medical diseases and conditions. Patients will be able to get a recommendation from a physician for a 90-day supply of marijuana edibles, patches, oils, tinctures, and plant material. Vaporizing marijuana will be permitted, but smoking will not. Home growing is banned.
Medical marijuana is not expected to be available to patients until September 2018.
Bill Provisions Pertaining to Physicians
According to Ohio Academy of Family Physicians Lobbyist David Paragas, JD, and his legal team at Barnes & Thornburg LLP:
- Physicians must apply to the SMBO for a certificate to recommend medical marijuana to patients
- Physicians licensed to recommend medical marijuana can do so if:
- The patient has been diagnosed with a qualifying medical condition (acquired immune deficiency syndrome; Alzheimer’s disease; amyotrophic lateral sclerosis; cancer; chronic traumatic encephalopathy; Crohn’s disease; epilepsy or another seizure disorder; fibromyalgia; glaucoma; hepatitis C; inflammatory bowel disease; multiple sclerosis; pain that is either chronic or severe; Parkinson’s disease; positive status for HIV; post-traumatic stress disorder; sickle cell anemia; spinal cord disease or injury; Tourette’s syndrome; traumatic brain injury; or ulcerative colitis)
- There is a genuine patient-physician relationship
- There has been an in-person physical exam
- There has been a review of the patient’s medical history
- Physicians may recommend to minors if the aforementioned conditions are met and there is consent given by the appropriate parent or guardian
- Physicians will submit, on behalf of their patient, an application for use of medical marijuana, which requires:
- A genuine patient-physician relationship
- The patient has been diagnosed with a qualifying medical condition
- The physician has informed the patient of the risks of marijuana
- The physician has concluded the benefits outweigh the risks of medical marijuana
- Recommending physicians are immune from civil liability, not subject to professional disciplinary action by the SMBO or the SOBP, and are not subject to criminal prosecution for any of the following:
- Advising a patient about the benefits and risks of medical marijuana to treat a qualifying medical condition
- Recommending medical marijuana to treat a qualifying condition
- Monitoring a patient’s treatment with medical marijuana.
Patients must have one of the aforementioned medical conditions to apply to the SOBP for registration. Patients, once properly registered, may use and possess marijuana and paraphernalia.
- Medical Marijuana—How Will This Work (The Ohio Family Physician, Spring 2017)
- Ohio Proposed Marijuana Regulations Among Strictest in U.S. (Weekly Family Medicine Update, February 28, 2017)
- State Medical Board Releases Draft Medical Marijuana Rules (Weekly Family Medicine Update, December 20, 2016)
- Medical Marijuana Advisory Committee Holds First Meeting (Weekly Family Medicine Update, November 8, 2016)
- Medical Marijuana Advisory Committee Schedules First Meeting (Weekly Family Medicine Update, November 1, 2016)
- Medical Marijuana Legal in Ohio, but Patients Still Can’t Get It (The Columbus Dispatch, October 26, 2016)
- What Is Required of a Physician to Recommend Medical Marijuana Now That House Bill 523 Is Effective? (Weekly Family Medicine Update, September 27, 2016)
- Governor Makes Appointments to Medical Marijuana Advisory Committee (Weekly Family Medicine Update, September 27, 2016)
- New Surveillance Report Provides Insight on Long-Term Trends in Marijuana Use and Perceptions (Weekly Family Medicine Update, September 27, 2016)
- Medical Marijuana in Ohio May Take Two Years (Weekly Family Medicine Update, September 13, 2016)
- State Agencies Request Funding to Oversee Ohio’s Medical Marijuana Program (Weekly Family Medicine Update, August 23, 2016)
- Ohio Medical Marijuana Control Program Resources Now Available (Weekly Family Medicine Update, August 16, 2016)
- Provision in Ohio’s Medical Marijuana Law May be Unconstitutional (Weekly Family Medicine Update, August 2, 2016)
- Medical Marijuana Update (Weekly Family Medicine Update, July 19, 2016)