Provider Guidance Document Regarding Medical Cannabis

August 26, 2020

Dear Members of the RBHS Community:

The State of New Jersey has established an application process which patients must follow to receive Medical Cannabis. As a reminder, all University employees must comply with this process and federal law which prohibits the prescription of medical cannabis. 

Medical Cannabis is defined under New Jersey law as: Cannabis acquired, possessed, transported, or used, or related paraphernalia used by a registered qualifying patient under the "New Jersey Compassionate Use Medical Marijuana Act" and the “Jake Honig Compassionate Use Medical Cannabis Act."

This guidance is to clarify aspects of physician responsibility and potential liability in prescribing medical cannabis to patients. While the State of New Jersey has legalized the use of Medical Cannabis for patients who qualify under the law, cannabis is still classified as a Schedule I drug under federal law which does not recognize medical cannabis as having an accepted medical use. Thus, it is illegal under federal law for physicians or other licensed independent providers to prescribe cannabis even in states where medical cannabis use is legal under that state’s law. Under federal law, prescribing cannabis is a criminal offense and could result in revocation of DEA licensure.

For the patient to qualify for Medical Cannabis use under State law, a physician must certify that the patient has a medical condition that the State has identified as one that may benefit from the use of Medical Cannabis and suggest a dose. The State form specifies that this is not a prescription for Medical Cannabis.  Therefore, under this process, the physician is not authorizing the use of Medical Cannabis, but, rather, certifying to a medical condition that might qualify the patient for such use under the New Jersey law. The State form explicitly distinguishes the suggested dose asked for on the form from a prescription. One federal appellate court circuit held that a physician’s professional suggestion that a patient could benefit from medical marijuana in accordance with state law is protected speech under the First Amendment. Possibly in line with this reasoning, it appears that the State has structured its authorization process for the use of Medical Cannabis so participating physicians will not be considered to be prescribing medical cannabis as prohibited under federal law. However, while persuasive that decision has not been adopted by the federal courts in the circuit that includes New Jersey. Therefore, this is not settled law and there remains some risk.  Should the federal government provide further guidance or the relevant courts rule on the issue, this guidance will be updated to reflect the federal position or court decision. It is important to understand that a physician participating in the New Jersey Medical Cannabis program takes the individual risk that the federal government or a court might take the position that this participation violates federal law.

University employees providing services off-site, for instance at a hospital, should follow that institution’s protocols regarding Medical Cannabis to the extent consistent with this guidance. Should the protocols be less restrictive than this guidance then, if acting in their capacity as a Rutgers employee, this guidance should govern.

Thank you for your attention to this matter.

Sincerely,

Brian L. Strom, MD, MPH
Chancellor, Rutgers Biomedical and Health Sciences
Executive Vice President for Health Affairs, Rutgers University

Vicente Gracias, MD
Senior Vice Chancellor for Clinical Affairs, Rutgers Biomedical and Health Sciences
Vice President for Health Affairs, Rutgers University