Doctors with the U.S. Department of Veterans Affairs still can’t recommend medical marijuana, but they are being encouraged to talk more about it with military veterans.
That’s what a new V.A. policy being rolled out this month says.
The directive urges government doctors to “discuss with the Veteran marijuana use, due to its clinical relevance to patient care, and discuss marijuana use with any Veterans requesting information about marijuana.”
However, the policy reiterates the department’s long-held position that “to comply with Federal laws such as the Controlled Substances Act…providers are prohibited from completing forms or registering Veterans for participation in a State-approved marijuana program.”
V.A. Misstates Federal Law
In fact, no provision of federal law blocks the department from allowing its doctors to fill out medical cannabis recommendation forms in states where it is legal, even under continued federal prohibition.
In 2003, the U.S. Supreme Court let stand a federal ruling finding that doctors have a First Amendment right to recommend medical cannabis to patients, as long as they don’t actually provide marijuana.
The only thing standing in the way of government doctors recommending medical cannabis to veterans is the V.A.’s own internal policy, which the the department’s Veterans Health Administration just extended with the new directive.
V.A. Sec. David Shulkin has repeatedly tried to pass the buck to Congress when asked about the issue in interviews.
During a White House briefing earlier this year, he said that state medical cannabis laws may be providing “some evidence that this is beginning to be helpful, and we’re interested in looking at that and learning from that.” But he added that “until time the federal law changes, we are not able to be able to prescribe medical marijuana for conditions that may be helpful.”
Shulkin has even gone so far as to allege that the agency can’t even participate in research on medical cannabis.
From the federal government point of view, right now we are prohibited by law from doing research on it or prescribing it,” he said in one interview. “We are not going to be out there doing that research or prescribing these different medicinal preparations unless the law is changed.”
In another interview, Shulkin said that it is “not within our legal scope to study that in formal research programs or to prescribe medical marijuana, even in states where it’s legal.” He added, “if a law change at the federal level is appropriate, that could happen.”
Medical Marijuana Recommendations Vs. Prescriptions
The distinction between recommendation and prescription is an important one.
No physician in the U.S. — government or private — can prescribe marijuana, because prescription is a federally-regulated process and cannabis currently falls under the Controlled Substances Act’s restrictive Schedule I, a category that is supposed to be reserved for drugs with a high potential for abuse and no medical value.
That’s why the 29 states with medical cannabis access allow doctors to simply recommend the drug, circumventing the prescription process, within the scope of the protections of the 2003 federal case mentioned above.
Other Details Of New V.A. Policy
In addition to the “prohibition on recommending, making referrals to or completing forms and registering Veterans for participation in State-approved marijuana programs,” the new V.A. directive continues a policy that the government won’t pay for veterans’ medical cannabis.
It also specifies that the directive only prohibits use of medical marijuana by V.A. employees, not patients who don’t work for the department.
“Veterans must not be denied VHA services solely because they are participating in State-approved marijuana programs,” it says.
Those patients just have to get their cannabis recommendations from physicians outside the V.A., which can be costly and confusing for some veterans.
The new policy also seems to further encourage government doctors to more closely track and record information about veterans’ use of medical marijuana.
“Clinical staff may discuss with Veterans relevant clinical information regarding marijuana and when this is discussed it must be documented in the Veteran’s medical record,” it says. “Providers need to make decisions to modify treatment plans based on marijuana use on a case-by-case basis, such decisions need to be made in partnership with the Veteran and must be based on concerns regarding Veteran health and safety.”
The V.A.’s previous medical cannabis policy, enacted in 2011, technically expired on January 31, 2016, but remained in place until the enactment of the new directive, effective this month. The new policy is set to expire at the end of 2022.
Read the full new V.A. policy below:
Rand Paul Pushes Marijuana Amendments On Funding Bill
As Congress works to end a federal government shutdown that began at midnight on Friday, a Republican senator is trying to insert marijuana into the process.
Sen. Rand Paul of Kentucky has filed two far-reaching cannabis amendments that he wants to be part of a deal to reopen the government.
One measure would prevent the Justice Department from interfering with state recreational legalization and medical cannabis laws, a big concern in the wake of U.S. Attorney General Jeff Sessions’s recent rescission of Obama-era guidance that has generally allowed local marijuana policies to be implemented without federal harassment:
______ SA 1910. Mr. PAUL submitted an amendment intended to be proposed by him to the bill H.R. 195, to amend title 44, United States Code, to restrict the distribution of free printed copies of the Federal Register to Members of Congress and other officers and employees of the United States, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: Sec. __. None of the funds made available by this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, to prevent the State from implementing State laws that authorize the use, distribution, possession, or cultivation of marijuana on non-Federal lands within the respective jurisdiction of the State. ______
Paul’s other amendment concerns the ability of banks to open accounts for marijuana businesses without running afoul of federal regulators:
______ SA 1909. Mr. PAUL submitted an amendment intended to be proposed by him to the bill H.R. 195, to amend title 44, United States Code, to restrict the distribution of free printed copies of the Federal Register to Members of Congress and other officers and employees of the United States, and for other purposes; which was ordered to lie on the table; as follows: At the appropriate place, insert the following: Sec. __. None of the funds made available by this Act may be used by the Department of Justice for activities that are not in compliance with the February 14, 2014, Department of Justice memorandum from James M. Cole, Deputy Attorney General, entitled ''Guidance Regarding Marijuana Financial Crimes'', and the memoranda incorporated therein. ______
A top Treasury Department official testified before senators this week that the Trump administration is currently weighing whether to tear up an Obama-era memo on cannabis banking in line with Sessions’s move to rescind the broader Justice Department guidance on state marijuana laws.
It is unclear if either of Paul’s amendments will actually be considered and voted on as part of a deal to re-open the federal government following the Friday shutdown.
The lapse in spending legislation has put medical cannabis patients and providers at greater risk because an existing protection preventing the Justice Department from undermining medical marijuana laws has now expired, but drug enforcement has not. Under a federal contingency plan, anti-drug agents and prosecutors are exempt from furlough.
If Congress passes another bill to fund the government, the medical cannabis protections will go back into effect through whatever date to which the legislation continues spending levels. People complying with broader full-scale marijuana legalization laws will remain at risk of federal enforcement actions, however, unless Paul’s relevant amendment is adopted.
Earlier this week, House leaders effectively blocked an amendment to protect state marijuana laws from federal interference from being considered on the floor.
Photo courtesy of Gage Skidmore.
Marijuana Is Safer Than Alcohol, Tobacco Or Sugar, Americans Say In New Poll
Americans think marijuana is less dangerous than alcohol, tobacco or sugar. That’s according to a new NBC News/Wall Street Journal poll released Friday.
When asked in a survey which substance is most harmful to health, 41 percent chose tobacco, 24 percent said alcohol and 21 percent flagged sugar.
Just nine percent believe cannabis is the most dangerous of the four options.
The poll also asked about American’s views on legalizing marijuana in their state, with 60 percent saying they would favor the policy.
When the news organizations polled the same question in 2014, 55 percent were on board.
The new numbers are in line with other recent polls showing growing support for ending cannabis prohibition.
In October, a Gallup poll found that 64 percent of Americans back legalizing marijuana.
Earlier this month, in the wake of the Trump administration’s decision to rescind Obama-era guidance that has generally allowed states to implement their own marijuana laws, three separate national polls found broad opposition to federal interference in local cannabis policies.
See the full NBC News/Wall Street Journal poll below:
Government Shutdown Would Let Sessions Attack Medical Marijuana
The federal government will shut down at midnight on Friday, barring an unexpected, last-minute bipartisan deal. That puts medical marijuana patients and providers at risk of being arrested, prosecuted and sent to prison by Jeff Sessions’s Justice Department.
Under a shutdown scenario, an existing budget provision that prevents the Drug Enforcement Administration (DEA) and other agencies from spending money to interfere with state medical cannabis laws would expire. But federal drug enforcement and prosecution actions, which are exempted from furloughs, would continue.
Why Might The Government Shut Down?
A bill to extend federal funding levels and policy riders like the marijuana one through February 16 was approved by the House on Thursday. But a heated dispute over immigration issues has jeopardized its passage in the Senate, where a significant number of Democrats are refusing to support any bill that does not provide protections to people who were brought to the U.S. as children.
Earlier this month, Attorney General Sessions rescinded Obama-era guidance that has generally allowed states to implement their own cannabis laws without federal intervention. That has left recreational marijuana businesses and consumers without a key protection they’ve relied on since 2013, but the ongoing existence of the medical cannabis spending rider has continued to keep patients and providers safeguarded from federal attacks.
An unintended consequence of Senate Democrats’ move to block the funding extension bill and shut down the government over immigration issues is that medical marijuana patients and industry operators would be at much greater risk, as soon as this weekend.
Why Would Drug Enforcement Continue Under A Shutdown?
“All agents in DEA field organizations are excepted from furlough because they support active counternarcotics investigations. This encompasses 21 domestic divisions, 7 regional foreign divisions, critical tactical support groups including the El Paso Intelligence Center and the Special Operations Division, forensic sciences, and technical surveillance support,” a Justice Department shutdown contingency plan says. “DEA investigations need to continue uninterrupted so that cases are not compromised and the health and safety of the American public is not placed at risk.”
The same goes for federal prosecutors.
“As Presidential Appointees, U.S. Attorneys are not subject to furlough,” the shutdown document reads. “Excepted employees are needed to address ongoing criminal matters and civil matters of urgency throughout the Nation. Criminal litigation will continue without interruption as an excepted activity to maintain the safety of human life and the protection of property.”
Politics Of Marijuana And Immigration Collide
Democrats, especially those considering 2020 presidential bids, are facing enormous pressure from their progressive base not to go along with yet another bill in a series of short-term funding extensions that do not include protections for young immigrants known as “DREAMers.” Because Republicans hold only 51 seats in the chamber, and a handful of GOP members are also opposing the spending resolution, leaders need support from Democrats to reach the critical 60-vote threshold to advance legislation.
The medical cannabis budget rider was first enacted into law in late 2014, and has since been extended for each subsequent fiscal year. Last May, Sessions sent a letter to congressional leaders asking them not to continue the medical marijuana rider into Fiscal Year 2018.
“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime,” he wrote. “The Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”
Setting aside the important question of whether the medical cannabis rider will be included in full Fiscal Year 2018 spending legislation that congressional leaders continue to negotiate — and it is a big question, since House leaders blocked lawmakers from even voting on whether to include the policy in that chamber’s version of Justice Department spending legislation — the current budget brinksmanship on Capitol Hill means the medical marijuana protections could disappear as soon as Saturday morning.
A Shutdown Allows Old Federal Marijuana Prosecutions To Resume
If the provision lapses, it wouldn’t just allow new actions against people violating federal marijuana laws. It would also allow earlier medical cannabis prosecutions that were suspended under to the rider to resume.
A federal judge in a California case last August, for example, wrote that the prosecution of two marijuana growers would be “stayed until and unless a future appropriations bill permits the government to proceed. If such a bill is enacted, the government may notify the Court and move for the stay to be lifted.”
The failure to enact a new bill continuing the protections would have the same effect under a shutdown scenario, given that enforcement of federal drug laws would still continue.
Long-Term Status Of Marijuana Protections Unclear
The Senate Appropriations Committee voted in July to include the medical cannabis rider in its version of the 2018 Justice Department funding bill. But without the provision being approved on the House side, its long-term continuance will be determined behind closed doors by a bicameral conference committee that merges the two chambers’ proposal into a single bill to be sent to President Trump.
Advocates have also pushed to expand the protection to encompass all state marijuana laws, not just those focused on medical access. A measure to do that came just nine flipped votes of passage on the House floor in 2015, and the number of states with legalization has doubled since then. However, Republican congressional leaders have blocked subsequent cannabis measures from advancing to floor consideration, including as recently as this week.
In the meantime, medical cannabis patients and providers will wait to see if Jeff Sessions and his DEA agents will regain the ability to come after them for the first time since 2014 this weekend.
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