I have been touting the benefits of medical marijuana for nursing home/senior care residents for many years now. As a cannabis attorney, as well, I have been immersed in the research and studies, showing how marijuana can benefit nursing home residents, just like any other drug our residents may take for their well-being.
But the risks of utilizing marijuana in the nursing home, I’ve been stating, have been too great. Marijuana remains a Schedule I federally illegal controlled substance, and, as such, the Controlled Substances Act defines cannabis and its distinct cannabinoids as possessing “a high potential for abuse … no currently accepted medical use … [and] a lack of accepted safety for the use of the drug under medical supervision.”
However, now that may be set to change, as recent developments last month indicate that the feds may be seriously contemplating moving marijuana from a Schedule I controlled substance to a Schedule III controlled substance, allowing it to perhaps one day be prescribed by physicians as with most other drugs.
In a groundbreaking measure, on Aug. 29, 2023, the US Department of Health and Human Services recommended to the Drug Enforcement Administration that marijuana be reclassified from a Schedule I controlled substance to a Schedule III controlled substance. Reclassification in this manner, should the DEA choose to follow it, could have profound implications on the use of marijuana in nursing homes, not to mention profound effects on marijuana medical research, tax and banking, and criminal enforcement.
Today, 38 states have passed legislation allowing some form of medical use of marijuana, and 23 states have legalized recreational use of marijuana. These state laws all conflict with the current federal law, which makes it unusual that all of these states have found therapeutic medical benefits from medical marijuana, but the feds have still not changed their classification that marijuana has “no currently accepted medical use.”
As you may know, the benefits of marijuana for seniors have been documented over the years, with one peer-reviewed journal posting an actual study in a New York nursing home with nursing home residents showing very favorable results. (I’m referring to this by Zachary Palace, MD and Dan Reingold: “Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life,” The Journal of Post-Acute and Long-Term Care Medicine [January 2019].)
Today, given marijuana’s continued Schedule I classification, the risk of federal enforcement remains in the use and possession of marijuana, even in nursing homes. Many would take issue with that statement, especially given the pronouncements by various US Attorneys General that the feds would not seek to enforce the federal illegality in states that have state marijuana laws in effect. Recognizing state legalization initiatives, since 2009, the federal government has limited its enforcement in states that have legalized or decriminalized marijuana possession and use. Even current US Attorney General Merrick Garland has intimated that the Justice Department generally will not prosecute marijuana offenses in states that have decriminalized marijuana and have appropriate regulatory schemes in place, though no formal policy has been promulgated.
However, while the federal government may choose to take “prosecutorial discretion” when enforcing federal marijuana laws in states that have a structure for medical or recreational use, the fact remains that the law remains on the books, and use of marijuana in nursing homes could subject individuals to prosecution as it remains, today, a federally illegal substance.
But now, HHS has now finally realized, perhaps, what most state legislatures have realized: that perhaps there is a therapeutic/medical benefit to medical marijuana after all. We will now have to see what develops in light of this key pronouncement by HHS, and whether the DEA will take action to reclassify marijuana as a Schedule III drug.
A Schedule III drug reclassification would mean that the drug is characterized as having some potential for abuse, but also has some accepted medical uses. This development could signal a sea change in marijuana acceptance by the federal government going forward. Reclassification of marijuana in this area could lead to more robust medical marijuana research and less taxation for cannabis growers and dispensaries, not to mention profound banking and criminal ramifications allowing cannabis use to further proliferate . . . yes, even into our nursing homes for the benefit of seniors.
We’ll have to wait and see whether the legal risks of marijuana use in nursing homes will continue, or if they will be lifted as HHS’ recommendation is further considered. What’s happened so far indicates there’s been unprecedented movement, at least in some circles.
Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP, as well as the Cannabis Law Practice at Duane Morris LLP; [email protected].
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