Tuesday, December 15, 2015

High Time for Florida Change?

Marijuana holds a fascination and attraction for people. It has been illegal in America for decades, but nonetheless sees significant use and acceptance. This is discussed recently in Measuring Marijuana Intoxication. Recently states have begun electing to decriminalize Marijuana, some for medical purposes and others for recreational. The substance remains illegal under federal law, but federal officials have announced their intention to ignore those laws. 

Because of the illegal nature of marijuana, it has not seen significant testing, development and approval the way other drugs have, through the Food and Drug Administration. What are the long term effects of use? What are the side-effects? There has reportedly been an aversion to private testing and development, broad clinical trials, because of the legality issues. Medical Marijuana may even be an oxymoron. Use of it, even without the overshadow of state law criminal prosecution threats, also have serious potentials in the labor market.

Currently, state action to decriminalize Marijuana has not occurred in the south. The IB Times has published a map produced by Graphiq, illustrating the state of decriminalization by state law, which is reproduced here. State action thus far has primarily been conspicuously in the northeast and the west, with some exceptions in the northern mid-west.


Without much fanfare (if it was in the news, I missed it), a bill was introduced in the Florida House last August, HB 63 (Representative Steube, District 73 Sarasota). A similar bill was filed in the Senate in November, SB 852 (Senator Brandes, District 22, Hillsborough and Pinellas). Each are titled "Medical Marijuana" on the MyFlorida pages, but the House bill would create the "Florida Low-THC Cannabis Act," and the Senate calls it the "Florida Medical Marijuana Act." 

The purpose of the bills is to allow "registered patients and designated caregivers to purchase, acquire, and possess Marijuana in some form. The House bill is more limited, to "low-THC cannabis . . .." Both bills would legalize "cultivation and processing" in Florida.

As with many statutes, the newly created Fla. Stat. 381.99 in either bill begins with definitions. In the House version, the legalization would only affect "low-THC cannabis," which "means cannabis that has no more than 0.8 percent tetahydrocannabinol (THC); has been tested in accordance with s. 381.997; meets the standards established by the department; and is packaged, labeled and ready to be dispensed." 

There are those who find the strength a critical issue. States that have decriminalized have reported some overdose issues, while some contend there have never been proven instances. There may be relevance in knowing the strength of any particular Marijuana, although at this time there are no real strength standards published, similar to the "proof" measures mandated with alcohol. These "low-THC" parameters in the proposed House statute may seek to provide standardization of strength, to afford a basis upon which to direct safe use? 

The legalization under the House bill would be only for "medical use," which means "the acquisition, possession, transportation, use and administration of the allowed amount of low-THC cannabis. The term does not include the use or administration of low-THC cannabis by, or possession of low-THC cannabis for, smoking." The House bill would bring forms such as "topical applications, oils, and food products." 

The Senate bill is broader, however, without the limitation for "low-THC," and includes use by smoking, but limits smoking in a residence in which child care or adult care are provided for compensation. There have been some interesting questions posed about the damage that smoking can cause to lungs and heart, with some believing that Marijuana smoking could have concerns similar to cigarette smoking. 

Marijuana use would be limited to "qualifying condition(s)" which in HB 63 are (1) cancer, (2) human immunodeficiency virus (HIV), (3) acquired immune deficiency syndrome (AIDS), (4) epilepsy, (5) amyotrophic lateral sclerosis (ALS), (6) multiple sclerosis, (7) Crohn's disease, (8) Parkinson's disease, and (9) a terminal illness ("a life expectancy of 1 year or less if the illness runs its normal course"). 

The Senate bill (SB 852) includes these same conditions and adds (10) paraplegia, (11) quadriplegia, and (12) "any physical medical condition or treatment that chronically produces one of more qualifying symptoms" (which include: wasting syndrome, severe and persistent pain, muscle spasm or nausea, or persistent seizures). 

Pain is a persistent issue in workers' compensation. We are beginning to understand more about it, see Don't it Make My Brown Eyes Blue and Smoking Linked to Chronic Pain, but it remains a difficult subject. There have been many who rushed to join the opiod bandwagon to deal with pain in the 1990s, and the resulting death toll and other unintended consequences has been nothing short of a pandemic. 

Some critics may point out that the opiod pandemic occurred with the very FDA safeguards, testing and trials that Marijuana lacks. Thus, some may question the efficacy of the FDA process in arguing that proceeding with Marijuana without such safeguards is warranted. Others may argue that with approval and testing disaster has occurred, and that bad outcomes are even more likely when regimens are created without such testing and approval. There is likely to be some interesting debate on this point. 

The drug will be available only to a registered and qualified patient. To qualify, the patient must be a state resident "who has been certified by a physician as having a qualifying condition." The physician will "order" marijuana, because it cannot be prescribed. To prescribe marijuana would violate federal law and subject the physician to potential punishment. Marijuana is illegal, listed as a Schedule I drug by the federal government. To "order" marijuana, a Florida doctor may have to complete special training. 

For a patient to be certified for marijuana, under either bill, they must have been a regular patient for "at least three months immediately preceding the patient's submission of a patient registration form." The physician must "believe, in his or her good faith medical judgement, the patient suffers from one or more of the the qualifying conditions." 

There are some caveats. The "use or administration" is not allowed in public places, on public transportation or "in a registered patient's place of work, if restricted by his or her employer." It would also not be allowed in state correctional institutions, on the grounds of schools or on school buses. These caveats may seem curious from the standpoint of equal protection under the law. If Marijuana is a medically necessary product, on what basis does a society preclude those in correctional institutions from receiving equal medical care? Are prison inmates less entitle to relief of their symptoms? This point may also see some interesting debate. 

Under both bills, provision to a minor child cannot be ordered without parental consent. And, if the patient is under 21 years of age, in the House bill, or a "minor" in the Senate bill, "a second physician must also submit a patient certification form" to the department. 


The growing and cultivation would be limited to "a facility building or enclosed space" under the House bill, but might be less restricted under the Senate bill. Under the House bill the selling of Marijuana would occur in "a facility or building where no other merchandise is sold." 

There is a local option included in both bills, stating that the "department may not license any retail facilities in a county unless the board of county commissioners for that county determines by ordinance the number and location of any retail facilities that may be located within that county." So, this proposed state decriminalization for medically ordered Marijuana might not make the drug available for purchase in all Florida counties. 

Colorado has seen some marked "tourism" effect of its decriminalization of recreational Marijuana. People reportedly travel there and make purchases. If a particular Florida county elects not to allow distribution, patients might have to travel to adjacent counties to obtain their Marijuana. Those adjacent counties would enjoy the benefits of whatever tax revenue this generated (direct or indirect, people might stop for lunch while there). Thus, should the medical Marijuana bill pass, there will likely be some interesting debates at county commission meetings also. 

There is an interesting insurance element in the bills. Many are familiar with the workers' compensation proceedings in New Mexico, in which an insurance carrier has been ordered to reimburse an injured worker who sought and received medical Marijuana. There are various issues with ordering an insurance carrier to pay for something that is illegal under federal law. 

The House Bill (HB 63) creates Fla. Stat. 381.9991, which states "The Florida Low-THC cannabis Act does not require a governmental, private, or other health insurance provider or health care services plan to cover a claim for reimbursement for the purchase of low-THC cannabis." The Senate bill contains similar language, substituting "medical marijuana," and clarifying that the Florida Medical Marijuana Act "does not restrict such coverage." Thus, under the Senate bill an insurer could provide coverage for Marijuana if it wished. 

Would this caveat be enough to keep medical Marijuana out of workers' compensation? 

Discussing these bills recently with a group of lawyers, the recurring question was "will it (the decriminalization) pass?" That is the question with all legislation and is a chorus on a variety of bills each legislative session. Will it pass is dependent on so many factors that prediction is no easy task. Those who are interested should stay tuned. Time will tell whether Marijuana is decriminalized in Florida in 2016. As the bills move through the process, it is possible that the House bill or the Senate bill will be successful, and just as possible that the end result will be a compromise of some sort between the two versions.

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