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    April 15, 2020

    Cannabis in Long-Term Care: A Risk Management Assessment

    By Pamela S. Kaufmann, Esq., Hanson Bridgett LLP, San Francisco, CA

    The trend in the United States is unmistakable:  each year, a few more states legalize the use and possession of cannabis.1  As of January 1, 2020, 33 states plus Washington, D.C. permitted medical cannabis and 11 states plus Washington, D.C. permitted recreational cannabis for adults aged 21 or older.2  The only rub in D.C. is that cannabis is off limits on federal lands!3

    This trend is not limited to so-called blue states; several states that may be deemed more politically conservative allow cannabis use to one degree or the other.4  According to Business Insider, a financial and business news website that follows cannabis laws, more states are likely to consider or reconsider legalization in the near future.5  There may also be pressure on our northern border to legalize cannabis:  on October 17, 2018, recreational cannabis use became legal throughout Canada.6

    At the same time, the United States government deems cannabis a "Schedule I" drug with no accepted use.7  The manufacture, distribution, and dispensing of cannabis are criminal offenses, as is knowingly allowing others to engage in this conduct on one's property.8  This creates a conundrum not only for people who use cannabis products, whether medically or recreationally, but for healthcare providers that allow the use of cannabis in their facilities and communities.

    To confuse matters more, state regulatory agencies may protect certain people's right to use cannabis for medical purposes notwithstanding the federal prohibition.9

    The recent passage of the Farm Bill10 may create a viable legal alternative in hemp, an industrial plant that is also a source of cannabidiol (CBD), a compound that is claimed to confer several medical benefits.  To be legal, however, the hemp plant's tetrahydrocannabinol (THC) content must be very minimal.11

    How can healthcare providers navigate these conflicting laws?  What risk management issues does cannabis use present in healthcare settings, particularly long-term care, and how are providers balancing their risks?  What can legal counsel do to help clients make sensible choices?   

    To counsel their clients on these issues, attorneys will naturally need to be aware of the cannabis law in their state, including any agency pronouncements, as well as federal law, including the Controlled Substances Act12 and the Farm Bill.13  They should also understand, at least on a rudimentary level, the key ingredients in cannabis, its delivery modes, medical claims and risks, and practical risk management issues in a given care setting.  Finally, they will need to inquire into their clients' attitudes toward cannabis.  Not all providers will be comfortable with the same degree of risk or adopt the same attitude regarding the moral implications of cannabis use.

    The conflicting state and federal cannabis laws raise a host of legal issues, among them the use of cannabis products by employees; regulation of cannabis cultivation, distribution, and sales; banking; taxation; and the extension of driving under the influence (DUI) laws to cannabis.  These are all important topics, but they are not the focus of this article.

    This article is devoted exclusively to resident or patient use of cannabis, medical or recreational, in healthcare and residential care settings.  The primary focus of this article is long-term care environments, such as skilled nursing facilities, continuing care retirement communities, assisted living communities, and other residential models of care.  These care settings raise unique issues because generally speaking, the facility or community is the person's home.  A resident or patient will typically assert a stronger claim to self-determination in these settings than in a physician's office, a pharmacy, or even a hospital.

    The Law

    State Laws Generally:  Medical Cannabis versus Recreational Cannabis

    While state laws legalizing cannabis possession and use are not identical to one another, there are some discernable trends.  For example, the medical cannabis laws generally afford eligible patients a right of access, while the recreational laws decriminalize possession.  Furthermore, medical users are often entitled to possess larger amounts of cannabis than recreational users.  Whereas medical use tends to be exempt from taxation, recreational use is generally taxed, sometimes at arguably prohibitive rates.  There is no legal age limit for medical use; however, recreational users must be at least 21 years old.14  Although there is variation among states, California's law, described below, is somewhat typical.

    California's Medical Cannabis Law

    In 1996, California became the first state to allow medical cannabis.  Voters approved Proposition 215 (Prop. 215), which legalized medical use of cannabis by patients of all ages.15  Prop. 215 permits patients and their designated primary caregivers to possess and cultivate cannabis for their personal medical needs based on the "recommendation" of a California-licensed physician.16  There is no specified limit on the amount of cannabis that patients may possess or cultivate; thus, medical cannabis advocates have argued that patients may legally possess more than the amounts allowed under the recreational cannabis law, described below, if required by their medical needs.17  They are, however, still subject to any local limits and land use laws.18

    Patients who have a state medical cannabis identification card are exempt from state sales tax on medical cannabis and cannabis products.19  (As of 2018, however, all cannabis sales are subject to a 15 percent state excise tax.)20  In California, the state Department of Social Services (DSS) protects the rights of residents living in licensed residential care facilities for the elderly (RCFEs) to use and store medical cannabis on campus.21  There is no similar protection for the use or storage of recreational cannabis.

    California's Recreational Cannabis Law

    Recreational cannabis use in California was legalized by the Adult Use of Marijuana Act (AUMA), approved by the voters in 2016.22   AUMA allows adults aged 21 and older to possess, process, transport, purchase, obtain, or give away to persons 21 years old or older up to one ounce of cannabis or eight grams of concentrated cannabis.23  It also allows adults to cultivate, possess, plant, harvest, dry, or process no more than six live plants – and possess the produce of the plants -- for personal use at their personal residence.24  City and county governments can ban or restrict cannabis businesses in their jurisdiction.25

    Recreational cannabis in California is subject to a state sales tax and a state excise tax.26  The standard sales tax in California currently ranges from 7.25 percent to 10.25 percent, depending on the jurisdiction.27  The excise tax adds another 15 percent, for a total tax that can exceed 25 percent of the retail price.28  These taxes are in addition to any local taxes on cannabis businesses29 and a cultivation tax levied against licensed commercial growers.30  Critics have charged that the heavy taxation of retail sales of cannabis has actually discouraged licensed sales and driven the sale of recreational cannabis underground.31

    The Medicinal and Adult Use Cannabis Regulation and Safety Act

    California’s cannabis laws were comprehensively revised in January 2018 to establish a uniform licensing regime for both medical and recreational (aka "adult") use.  The Medicinal and Adult Use Cannabis Regulation and Safety Act (MAUCRSA)32 replaced prior legislation which applied solely to medical cannabis.  It did not substantively change AUMA.

    The Federal Controlled Substances Act

    Despite the state trend to permit medical cannabis use and decriminalize recreational use, cannabis is currently illegal under federal law.  Under the Controlled Substances Act, cannabis is regarded as a "Schedule I" drug.33  This status is reserved for drugs that have a high potential for abuse, no currently accepted medical use, or a lack of accepted safety for use under medical supervision.34  Schedule I drugs also include heroin and LSD.35

    Synthetic forms of THC, the psychoactive ingredient in cannabis, are legal.  They include Marinol, Syndros, and Cesamet.36  In addition, Epidiolex is a Food and Drug Administration (FDA)-approved cannabis-based drug that can be prescribed for seizures.37

    The Controlled Substances Act criminalizes manufacturing, distributing, or dispensing, or possessing with the intent to manufacture, distribute, or dispense, a controlled substance.38  Furthermore, it criminalizes the knowing lease, rental, use, management or control of a place for the purposes  of manufacturing, distributing, or using cannabis.39 This second prohibition is critical for care providers, as it penalizes them for permitting cannabis use on their premises.  Penalties for these offenses include criminal prosecution, forfeiture of cars and other vehicles used to violate the law, and forfeiture of property used or intended to violate the law.40

    The Controlled Substances Act expressly states that it preempts "positively" conflicting state law if the two laws cannot consistently stand together.41  It would appear to show some deference to state laws that are not in direct, unavoidable conflict with the Controlled Substances Act. Although the case law on this subject is not definitive, at least one author makes a carefully reasoned argument that the Controlled Substances Act does not preempt state laws that legalize cannabis possession, manufacturing, distribution, or dispensing.42

    The federal government's enforcement posture regarding the Controlled Substances Act was largely "hands-off" during the Obama administration, as evidenced by the Cole Memorandum.  This 2013 Department of Justice (DOJ) memorandum, prepared by Deputy Attorney General James Cole and circulated to all United States Attorneys, stated that given the DOJ's limited resources, it would not enforce the federal cannabis prohibition in states that "legalized marijuana in some form and ... implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana," except where a lack of federal enforcement would undermine federal priorities (e.g., preventing violence in marijuana cultivation and distribution or the flow of revenues to gangs and cartels).43  The Memorandum was rescinded in 2018.44  Another DOJ reversal could once again liberalize the federal enforcement climate.  For now, however, the DOJ has adopted a strict enforcement posture.  Having said this, the author is not aware of current enforcement activity in the senior care arena.

    A healthcare provider that participates in Medicare, Medicaid, Housing and Urban Development (HUD), or another federal funding program must confront two risks if it allows cannabis use at its facilities.  First, it might expose itself to criminal prosecution, including potential forfeiture of the property it uses to operate its facilities.45  Second, even if it is not criminally prosecuted, a provider might jeopardize its federal funding if it allows a violation of the Controlled Substances Act because its provider agreement or regulatory agreement likely includes a covenant not to violate applicable law.46  In the author's experience, federally funded providers are generally unwilling to jeopardize their federal funding by sanctioning cannabis use in their federally funded facilities.

    In the privately funded arena, however, the appetite for risk is different.  Many long-term care providers believe that allowing a senior citizen to use cannabis in his or her own home (including a licensed residential community) in accordance with state law and under controlled conditions (including a plan of care) is a low-risk proposition.  This attitude is particularly common where the use is medical, not recreational.

    The Federal Farm Bill

    The enactment of the Agricultural Improvement Act of 2018 (also known as the Farm Bill)47 might offer providers some comfort.  Hemp is a variety of the Cannabis sativa plant that is grown for industrial purposes and is used in the manufacture of rope, textiles, and paper.  Under the Farm Bill, hemp is recognized as a legal agricultural product, provided it contains less than 0.3 percent THC.48  Although the Drug Enforcement Administration (DEA) continues to classify cannabis and cannabis products as Schedule I drugs, the Farm Bill has removed hemp-derived products from Schedule I status.49  However, among other restrictions, the Farm Bill gives the FDA the authority to regulate hemp-based CBD.  It remains to be seen how the FDA will regulate this product and whether its approach is restrictive.

    Risk Assessment

    Before exploring the risk management issues related to cannabis use, it is helpful to consider the active ingredients, delivery modes, claimed medical benefits, and potential adverse effects of cannabis.

    Active Ingredients

    Cannabis, a drug derived from the cannabis plant, actually consists of nearly 500 known compounds.50  Three key components are THC, CBD, and cannabinol (CBN).51  While physicians and researchers disagree somewhat about the medical effects of these different compounds, they tend to agree that THC is psychoactive (hallucinogenic), whereas CBD is not.52  THC is also known for its anti-emetic (anti-nausea), appetite stimulant, and analgesic (pain relief) properties.  CBD is recognized for its analgesic, anti-convulsive, and anti-spasmodic properties, and may also confer anti-inflammatory and neuro-protective benefits.  CBN is an anti-emetic, anti-inflammatory, and appetite-stimulant.  It may also have anticonvulsive and psychoactive properties.53  Many residents in long-term care seek the benefits afforded by CBD but may not seek the "high" associated with THC and possibly CBN.  This trend could change as more baby boomers enter long-term care.

    Delivery Modes

    Cannabis today is not your father's marijuana, administered by joint, pipe, or bong – or potentially baked into brownies.  The delivery modes today are as varied as the human imagination.  They include, without limitation, the smoked plant, vaporized cannabis oil or wax, edibles (candy, chocolate, soda, pretzels, gummy bears, cookies, brownies, etc.), oils, salves, lotions, creams, sprays, tinctures (taken sublingually), teas, dissolving strips, and transdermal patches.54  CBD is often administered by means of ointments, creams, and salves.

    Claimed Medical Benefits

    The medical benefits attributed to cannabis are varied and, in the eyes of some skeptics, exaggerated.  In the senior care setting, cannabis tends to be popular because it is believed to help relieve the symptoms of common conditions afflicting seniors, such as rheumatoid arthritis (inflammation and chronic pain), Alzheimer's disease (agitation, "sun-downing"),55 depression, and cancer (pain, nausea from chemotherapy).  It may also help relieve the symptoms of bipolar syndrome, glaucoma, multiple sclerosis (spasticity), and Parkinson's Disease (tremors, limb stiffness), among other conditions.56

    Medical Risks

    Health professionals likewise disagree about the medical risks of cannabis use.  The following potential consequences of cannabis use have been cited, at least in some patients:  anxiety, hallucinations (from THC), impaired judgment, decreased coordination, increased blood pressure, and visual deficit. Predictably, there are also concerns about purity, particularly where the drug is not regulated, adverse drug-cannabis interactions, and the potential for addiction. 

    Risk Management Issues

    If a long-term care provider decides to prohibit cannabis use or possession under all circumstances, it need not engage in a nuanced risk management review.  If, however, it opts to allow at least certain residents in certain settings to use cannabis under certain circumstances, a risk management assessment is critical.  The risk issues that providers often identify in long-term care tend to fall into five categories, including storage and administration, the use of "designated primary caregivers," care planning, consumption areas/delivery modes, and the use of mobility devices.       

    Before a resident is allowed to store or administer cannabis in any form, a health provider will want to assure first that the cannabis is secure (either in locked central storage, a locked personal cabinet, or offsite with a designated primary caregiver) and that the resident can safely self-administer the drug.  State regulatory agencies may protect the rights of residents to use medical cannabis in a licensed setting;57 however, they may not confer the same protections with respect to recreational cannabis.  Storage of hemp would appear to be a less risky alternative for providers, provided it contains less than .3 percent THC.58

    Designated "primary caregivers" are people who are responsible for the care and wellbeing of a person and who can possess mature plants and usable cannabis for the benefit of that person.59  In long-term care, it is advisable not to allow staff to serve in this capacity because of the attendant risks of theft, loss, and law enforcement action.  Requiring the designated primary caregiver to store the cannabis offsite also helps to reduce the healthcare provider's risk exposure.

    Care planning for residents in long-term care is always essential.  It is especially critical if the resident wishes to use cannabis.  For example, is the resident using other medications, whether prescription or over the counter, that could interact with the cannabis?  Does the resident have any balance or coordination issues?  Anxiety?  A history of substance abuse?  If so, these conditions may influence the dosage, frequency, timing, or monitoring of the resident's cannabis use.  They could even indicate that cannabis use is not recommended.  In all events, coordination with the resident's physician(s) is essential.

    Consumption areas and modes of delivery will be driven by two key factors:  state laws that tend to prohibit cannabis use in public, and clean air laws that ban cigarettes, e-cigarettes, and other inhalant delivery systems in public.60  To address these constraints, a long-term care community might prohibit smoking and "vaping" but allow edibles and topical treatments.  It might also require that all use occur in resident rooms or designated areas away from common areas.

    Mobility devices are an enormous challenge in long-term care.  Even without introducing cannabis, unsafe use of mobility devices, particularly motorized carts, can result in personal injury, property damage, avoidable congestion, and a great deal of conflict in the community.  If a resident who uses a mobility device also wishes to use cannabis (particularly if it contains THC), the provider will need to assess the resident's condition and prepare a plan of care before the resident consumes the cannabis.  Potential safety interventions include removing electric carts for a reasonable period after cannabis use, performing frequent safety checks (perhaps every two hours), and requiring the resident to use the cannabis in his or her apartment.

    Finally, any policy that permits cannabis use should include an enforcement mechanism in case of violations.  If the community plans to confiscate or destroy a resident's cannabis due to a policy violation, it is critical that the provider first mitigate its risk by providing notice and giving the resident time to cure the breach, including removing the cannabis from the premises.

    Developing a Risk Management Policy

    In developing policies with respect to cannabis use, clients will need to consider their risk tolerance given the federal/state law divide.  If they receive federal funds, such as Medicare, Medicaid, or HUD dollars, they may wish to impose an absolute prohibition against all cannabis use and possession on their campuses.  Then again, they may opt to prohibit it only in those facilities that receive such funds and not in their privately funded facilities.  Depending on how the Farm Bill regulations evolve, providers may consider allowing hemp, provided its THC content is below the Farm Bill threshold.  Other factors driving this decision will include resident demand, the culture and values of the provider, including religious beliefs, and the attitude of the state regulatory agency.

    A provider that allows cannabis use will need to explore what substances and delivery modes to allow, in what circumstances, and in what settings.  Whatever policy it elects, it needs to communicate it clearly with staff and residents or patients. 

    Trends Among Providers

    In the author's experience, the following trends regarding cannabis use are common in long-term care:

    • Virtually all providers that participate in the Medicare or Medicaid program prohibit cannabis use in their nursing facility.  If they participate in the Medicaid waiver program, they also prohibit its use in their assisted living facility.
    • Those providers that allow cannabis use limit such use to edible and topical products and prohibit smoking and vaping. 
    • Providers that allow cannabis use require the use to occur in residents' apartments, encourage offsite storage, and require a care plan to address the risks identified above. 
    • Many providers limit permitted uses of cannabis to medical use.
    • Providers do not allow staff to serve as designated primary caregivers.
    • Topical forms of cannabis, particularly CBD creams, lotions, and ointments are increasingly being accepted.

    Advice to Legal Counsel

    As noted above, legal counsel advising long-term care providers need more than a command of state and federal cannabis law and agency directives. To best serve their clients, they also need a grasp of risk management concerns, awareness of their clients' risk tolerance, and sensitivity to their clients' values, religious and otherwise.  Like other social changes, including the end-of-life laws,61 the issue of cannabis use in regulated health settings is likely to generate some discomfort and animated discussion.

    When advising clients about cannabis use on campus, it is essential that counsel emphasize the need to disclose the provider’s policy to staff and residents and to educate staff routinely.  It will also be important to remain informed.

    The legal landscape regarding cannabis is shifting quickly.  States will likely continue to pass laws legalizing at least the medical use of cannabis.  Furthermore, the federal government's enforcement posture could change overnight, and future efforts to reclassify cannabis under the Controlled Substances Act might succeed.  Clients would be well served by being probed to consider now what their policy might be if cannabis were no longer illegal under federal or state law.  

    1. "Cannabis" has become the preferred term because it is the scientific term for the marijuana plant and because the term "marijuana" is deemed racist in certain circles.  For example, California statutes now use the term "cannabis."  See infra n. 9. 
    2. See, e.g., https://www.businessinsider.com/legal-marijuana-states-2018-1.
    3. Initiatives 59 (1998) and 71 (2014).
    4. For example, Utah and Oklahoma allow medical marijuana.  See supra n.2.
    5. See supra n. 2.
    6. The Cannabis Act, Bill C-45, made Canada the first G7 country to legalize the cultivation, possession, acquisition and consumption of cannabis and its byproducts and the second country in the world, after Uruguay, to legalize these activities. Medical use has been legal nationwide since 2001.
    7. See 21 U.S.C. § 812(b)(1); https://www.deadiversion.usdoj.gov/schedules/#define.
    8. 21 U.S.C. §§ 841(a)(1), 856(a).
    9. For example, the California Department of Social Services protects the right of residents of residential care facilities for the elderly to use and store medical cannabis. See Evaluator Manual Transmittal #16RCFE-2 (https://caassistedliving.org/pdf/resources/dss_meds_guide.pdf).
    10. Agriculture Improvement Act of 2018, HR 2 (115th Congress); 7 U.S.C. §§ 1619 et seq. 
    11. Id.  CBD and THC and their properties are described in some detail later in this article.
    12. 21 U.S.C. § 801 et seq.
    13. See supra n. 10.
    14. The cannabis laws in Oregon, Washington and California illustrate these principles.  See ORS 475B (Oregon); Chapters 69.50 and 69.51 RCW (Washington); Health and Safety Code §11362.5, Health and Safety Code §11362 et seq; Business and Professions Code (B&PC) § 26000 et seq.(California).
    15. The Compassionate Use Act of 1996, California Health and Safety Code (H&SC) § 11362.5.  
    16. H&SC § 11362.712.  The physician cannot "prescribe" the cannabis because prescribing drugs is a federally regulated activity and cannabis is deemed illegal under federal law.  See the discussion of the Controlled Substances Act.
    17. See, e.g., https://www.canorml.org/california-laws/california-norml-guide-to-auma/.
    18. H&SC § 11362.2(b)(3).
    19. California Revenue and Taxation Code (R&TC) § 34011(f).
    20. R&TC § 34011(a).  Medical cannabis that is donated to a medical cannabis patient is exempt from this tax.  R&TC §34011(g). 
    21. See supra n. 9.
    22. This voter initiative, Proposition 64, amended numerous statutory provisions.
    23. H&SC §§ 11362.1(a)(1) and (2). 
    24. H&SC § 11362.1(a)(3).  
    25. H&SC § 11362.2(b)(3).
    26. R&TC §§ 34011(a), (c).
    27. See  https://www.cdtfa.ca.gov/taxes-and-fees/rates.aspx.
    28. R&TC § 34011(a).
    29. R&TC § 34011(c).
    30. R&TC § 34012.
    31. See, e.g., https://www.npr.org/2019/08/23/753791322/california-says-its-cannabis-revenue-has-fallen-short-of-estimates-despite-gains.
    32. Senate Bill 94, amending numerous statutes.
    33. See 21 U.S.C. § 812(b)(1); https://www.deadiversion.usdoj.gov/schedules/#define.
    34. Id.
    35. See  https://www.deadiversion.usdoj.gov/schedules/#define.
    36. https://www.fda.gov/news-events/public-health-focus/fda-regulation-cannabis-and-cannabis-derived-products-including-cannabidiol-cbd#use; see question 3.
    37. Id.
    38. 21 U.S.C. §.841(a).
    39. 21 U.S.C. §.856(a).
    40. 21 U.S.C. § 853(a).  See also 21 U.S.C. §881(a) describing property subject to forfeiture.
    41. See 21 U.S.C. § 903.
    42. See, e.g.,  Guenthner, F., Minnesota Law Review, Vol. 101, "Pot, Printz, and Preemption:  Why States Can 'Just Say No' to Jeff Sessions and the Controlled Substances Act" (April 26, 2017).  In his article, the author argues that the Controlled Substances Act does not preempt state laws that (1) merely carve out an exception from applicable law to legalize the use of marijuana under certain circumstances; or (2) restrict the use of marijuana by imposing regulatory restrictions, such as excise taxes.  In each case, he argues, the state law does not require violation of the Controlled Substances Act or create an obstacle to its enforcement.  He contrasts state laws that attempt to promote the sale, distribution, or consumption of marijuana, such as tax credits to incentivize distributors or manufacturers, or the creation of state-operated dispensaries.
    43. See  https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.
    44. The memorandum was rescinded by a one-page memo signed by Attorney General Jeff Sessions on January 4, 2018.
    45. 21 U.S.C. § 853(a). 
    46. See, e.g., § 489.53.
    47. Agriculture Improvement Act of 2018, HR 2 (115th Congress); 7 U.S.C. § 1621 et seq.
    48. Id. at § 1639o.
    49. See USDA Office of General Counsel Memo dated May 29, 2019 at https://www.ams.usda.gov/sites/default/files/HempExecSumandLegalOpinion.pdf.
    50. https://www.uclahealth.org/cannabis/cannabis-and-its-compounds.
    51. Id.
    52. See, e.g., https://www.healthline.com/health/cbd-vs-thc.
    53. This article illustrates some of the disagreement regarding the medical properties of these compounds:   https://www.forbes.com/sites/sarabrittanysomerset/2019/07/30/cbn-is-another-cannabis-compound-with-beneficial-properties/#44feae4f1d9b.
    54. See, e.g., https://www.verywellhealth.com/how-is-marijuana-used-63522#topical-methods.
    55. Sundowning, also known as “late day confusion,” is a common symptom of dementia. Typical behaviors include aggression, ignoring directions, pacing and wandering.
    56. See, e.g., https://www.webmd.com/a-to-z-guides/medical-marijuana-faq.
    57. See supra n. 6.
    58. See supra n. 42.
    59. H&SC § 11362.5(e). The title of this person may vary from state to state.
    60. See, e.g.:  H&SC § 11362.3; California Labor Code § 6404.5.
    61. For more information, see Kaufmann, P.S., “Aid-in-Dying Laws Present New Challenge for Healthcare Providers,” The ABA Health eSource, Vol. 13, No. 12, Aug. 2017. 

    Pamela S. Kaufmann is a partner at Hanson Bridgett LLP in San Francisco.  For 31 years, she has devoted her practice to advising senior care and housing providers on issues ranging from tax-exempt law and corporate structuring to resident autonomy, end-of-life issues, legal capacity, consent and mental health.  In the past several years, Ms. Kaufmann has spoken before numerous organizations across the country about cannabis In long-term care.  She can be reached at 415-995-5043 or [email protected].