EXCLUSIVE: Healthcare Attorney Brian Rath Discusses Medical Marijuana In Nursing Homes & Assisted Living, Legal? It's Complicated

If you live in one of the 37 states with legal medical marijuana programs or in one of 18 that allow recreational use and assume you're free to consume, think again. This cannabis story illustrates the importance of state and federal laws being in sync. 

It is also a glaring example of the contradictions created by the U.S.'s patchwork of cannabis legalization and how that affects those who reside in assisted living facilities or nursing homes. 

In addition to state-by-state rules governing cannabis usage, a further conflict lies in the way nursing homes are regulated, which is usually by the federal government in that many fall under the purview of Medicare. And cannabis is illegal at the federal level, classified as a Schedule I controlled substance, with “no currently accepted medical use" and a high potential for abuse.

Does this mean that people in nursing homes or assisted living facilities cannot legally be treated with medical marijuana? Is there a way around this situation? 

To answers these questions, Benzinga reached out to Brian Rath, a healthcare attorney with Buchanan Ingersoll & Rooney. Rath has worked for over two decades with healthcare providers in the long-term care industry where he guides his clients “through the labyrinth of federal and state regulations.”

In Nursing Homes, The Situation Is Clear – No Cannabis Or Risk Losing Federal Funding 

“The conflict is clearer with respect to nursing homes in that they are regulated directly by both the federal and state governments due to nursing homes being participating providers in both Medicare and Medicaid programs - Medicare being fully funded by the federal government and Medicaid being a joint federal and state-funded program,” Rath explained.

Like all institutions, organizations or establishments that benefit from federal funding, nursing homes must prove they’re in compliance will all federal laws in order not to lose their funding.

Things are not so simple when it comes to assisted living facilities. Enter Medicaid.

State law and state-run Medicaid programs regulate most assisted living facilities rather than Medicare. However, Medicaid is a joint federal-state program, therefore these facilities also are affected by federal law. As such, facilities that accept funding from the U.S. Dept. of Housing and Urban Development must also comply with federal regulations.

“Enforcement Of The Law In Assisted Living Facilities Is Law”

“Enforcement adds an additional layer of confusion to this federal-state conflict,” Rath said. “Each year since 2014, Congress has attached an amendment to its annual federal budget prohibiting Department of Justice from using federal funds to prevent states from implementing their medical marijuana laws.”

According to Rath, there have been no cases of federal interference in assisted living facilities due to marijuana consumption, meaning that even though an assisted living facility in a state with legal medical or adult-use cannabis should follow the federal law, “in reality, the likelihood that there will be any enforcement of that law is low.”

“Lockbox Approach” Might Be The Safest Way

Some assisted living facilities have decided to allow marijuana despite the risks. Those that chose to allow it must come up with “clear policies addressing their decision.”

How are they doing it?

“One method is a ‘lockbox approach’ whereby the qualified resident or authorized caregiver procures the marijuana from a legal dispensary and brings it to the facility where it is stored in a place that staff and other residents have limited or no access. The resident or his/her caregiver is responsible for accessing the marijuana and administering it,” Rath explained.

The lockbox approach is preferred as the safest way for a facility and its staff to deal with the situation because technically they do not own or distribute the cannabis.

Even though it seems logical that facilities should be allowed to administer medical marijuana “in a coordinated manner with other medications a resident may be taking,” the lockbox approach prevents the facility’s nurses and medical staff from knowing or being involved in a patient’s consumption.

In that most all facilities in the U.S. have strict no-smoking policies, including medicinal marijuana, patients need to consume cannabis in other forms.

Some states recognize the importance of medical cannabis and are addressing it.

“Arizona, for example, prohibits facilities from ‘unreasonably limiting’ a registered patient's access to or use of medical marijuana. Pennsylvania has announced that it will not cite assisted living facilities for licensure violations related to medical marijuana use by residents, so long as state rules are followed,” said Rath, who added similar recognition has not been forthcoming for recreational cannabis use.

Cannabis Legalization Unlikely To Happen Soon 

According to Rath, legalizing cannabis on the federal level is the only way to resolve this federal-state conflict, although he admits he’s not optimistic about that happening anytime soon. Despite the recent introduction of two Congressional bills, the Marijuana Opportunity Reinvestment and Expungement Act of 2021 and the Cannabis Administration and Opportunity Act, Rath says it’s “unlikely that this Congress, or any Congress in the near future, will complete the journey. Any legalization bill faces an uphill battle against opposition from Republicans and some moderate Democrats. Moreover, President Biden has not indicated that he would support legalization.”

“Allowing Marijuana Use Is Now A Business Decision”

Rath pointed out that cannabis use among seniors and baby boomers is on the rise in the United States.

Benzinga previously learned this when we talked to Jordan Tishler, MD, ER doctor, professor at Harvard Medical School, CEO of his private practice InahleMD and president of the Association of Cannabis Specialists.

At the time, we were surprised to find out that most of Tishler's medical cannabis patients are aged 70 and above. His eldest patient was 104! It makes sense that senior citizens are attracted to the benefits of medical marijuana, which can treat the symptoms of common conditions such as arthritis, anxiety, appetite loss or insomnia.

Now as Baby Boomers are moving into assisted living facilities or nursing homes, they rightly expect to have access to all available medical treatments, Rath pointed out, and that includes cannabis. If one facility does not allow that, they may have a choice to find one that does.

“Whether to permit [cannabis] use in an assisted living facility is becoming less a legal issue and more a business decision – if a facility’s competition down the street is allowing marijuana use, is the facility at a competitive disadvantage?”

Rath pointed out that the question is being asked more and more often.

Photo: Courtesy of Brian Rath