Marijuana use for medical purposes is currently legal more than 20 states, as well as the District of Columbia, according to the National Conference of State Legislatures (NCSL). These laws protect patients from criminal penalties for the possession, use, and in some cases, home cultivation of marijuana when prescribed for a legitimate medical purpose.
State and federal laws on medical marijuana are contradictory
It’s a heavily-debated topic with some interesting legal implications. For instance, the federal government still classifies marijuana as a Schedule I Substance, defined as having “no currently accepted medical use and a high potential for abuse,” under the Controlled Substances Act, meaning that it’s still a violation of federal law to cultivate, purchase, and possess marijuana in all 50 states and D.C., despite state laws. In some states, laws legalizing the medicinal use of marijuana have been passed and later overturned.
But in states in which the medical use of marijuana has been legalized, dispensaries are cropping up, identification cards are being issued to patients and caregivers, and physicians are prescribing marijuana to patients who can benefit from it. In 2009 and again in 2011, the Obama Administration sent memos to federal prosecutors encouraging them not to prosecute individuals or physicians conducting such activities provided they are in accordance with applicable state laws.
In late 2012, Colorado and Washington state passed laws legalizing marijuana for recreational use, with regulations on its use and sale. And in 2013, the Obama Administration again issued a memo stating it would not interfere with these laws provided states maintain strict regulations on the sale and distribution of the substance.
The legalization of marijuana has implications for senior living providers
There’s certainly ample material for discussion on the pros and cons of the legalization of marijuana both for medicinal and recreational purposes. But one issue that no one really saw coming is how these laws impact senior living communities.
The changing landscape of marijuana legalization creates some interesting challenges for senior living providers that operate in multiple states, some which have legalized marijuana; others in which marijuana use remains both a state and federal crime. Operating in multiple states could, presumably, make a senior living provider a more-likely target for federal prosecution.
State laws and senior living company policies on medical marijuana
So what are senior living providers doing to navigate these challenges? The answer, it seems, is dependent on a multitude of state- and company-specific policies. The Massachussetts Department of Health issued a set of regulations spanning 52 pages in May 2013 regulating the use of medical marijuana, including provisions on how it is to be handled by senior living communities, according to Long-Term Living Magazine. The Arizona Department of Health Services has a document answering frequently-asked questions about the use of medical marijuana in senior housing communities within the state.
Even the answers are complex and, at times, contradictory. The AZDHS states, “A.R.S. 36-2805 allows, but does not require, assisted living facilities to adopt reasonable restrictions on the use of marijuana by residents and specifies some of the types of restrictions that may be adopted.” But then proceeds to clarify that statement by pointing out that the law states that an assisted living facility may not “unreasonably limit” a resident’s access to or ability to use marijuana prescribed for medicinal use – that is, unless allowing such use would put the facility at risk of federal penalties.
In other words, it’s about as clear as mud.
Medical marijuana options for senior living communities
Hanson Bridgett, a law firm with more than 150 attorneys in San Francisco and other Bay-area communities, addressed many of these concerns in a 2010 analysis, noting that federal law likely provides sufficient justification for a senior living provider to prohibit the use of medical marijuana within its communities.
Providers implementing marijuana-friendly policies, however, face additional implications. If providers permit the use of medical marijuana in a community, and the resident is unable to administer her own medications, marijuana must be treated as any other prescription medication: centrally stored and dispensed by employees. This, Hanson Bridgett says, introduces some legal risks.
There are some workarounds for this, such as requiring that an outside caregiver to assist the resident with medical marijuana or requiring that the resident obtain it via an outpatient establishment, each of which comes with its own set of challenges and considerations.
Medical marijuana policies vary among senior living communities
Senior Housing News investigated policies at several major senior living providers, finding that the legalization of marijuana is presently being handled in various ways. Emeritus Senior Living, for example, has specific policies for states in which marijuana is legalized for medicinal or recreational use, but the communities will not store or dispense marijuana to residents due to the federal regulations. But, this may change with an impending merger with Brookdale Senior Living.
Even in Colorado, where marijuana has been legalized for recreational use, some senior living providers don’t allow marijuana use in their communities at all. Those with residents receiving Medicare or Medicaid funding, particularly, tend to rely on federal regulations to develop policies, as failing to do so could result in the loss of federal funding.
Most providers seem to be playing it relatively safe given the widely varying views on the subject and the contradictory state and federal regulations. But for some seniors searching for senior housing, it’s a question that must be asked.