Can I Sign Ohio Banking Permission Slip

Industry sign banking ohio permission slip later

hello everyone thank you again so much for joining us our discussion today this is actually the inaugural session of a new series that the healthcare practice is kicking off I'm here at vory we are looking to try a format that's going to be a little bit more conversational and a little bit more manageable in terms of time than the traditional webinar as you notice it's a half an hour session today so to the full hour so hopefully that's a little bit more conducive to your schedule but we would love your feedback after the session today on how how you liked what we did here and what we might be able to improve so please feel free to reach out so starting off I'd like to introduce our speakers first we have Jolie Haven and the chair of our healthcare practice group Jolie practice nationally assisting clients across the spectrum of health care health care providers and she frequently publishes and speaks on various topics related healthcare reimbursement and compliance as well as healthcare reform policy etc next we have Elizabeth Smith who's a partner also in our voice Columbus office and a member of our litigation group she has extensive experience in business commercial contract employment occupational disease intentional torts and public law litigation we really appreciate her sitting down to discuss the implications of cannabis with us this afternoon and as Mallory mentioned my name is Marimo I'm an associate in Healthcare Group and I currently practice in the voice Pittsburgh office so to start off I'll turn it over to Elizabeth to discuss I'm huge legal developments related cannabis at the federal and state levels thank you mari well there is there is a fair amount happening on the federal level we will see though if really any of it comes to fruition obviously as we all know marijuana remains marijuana as marijuana or otherwise referred to as cannabis remains illegal under federal law obviously people are aware of their certain criminal risks associated with that but the question becomes for those who are in states where medical marijuana or recreational marijuana is legal and medical marijuana is legal only in Ohio the question becomes what is the interplay between the state and the federal government on that putting aside criminal ramifications I think for those who were engaged in business and it would also apply to those in health care but any type of a business arrangement the caveats are this the the issues that we're seeing arising are primarily those involving cases brought now in federal court and what will a federal court and perhaps even the state court do in regard to enforcement of the right the private rights between between parties to be more specific the US Bankruptcy Court on a number of occasions now has dismissed bankruptcies that have been brought by those who are engaged in the medical and or recreational marijuana business if you've had a dispensary you file bankruptcy you're not going to be entitled to bankruptcy protection because that is a federal regulatory federal legal system federal courts will not recognize it that creates risks if you're a landlord and you have a dispensary client sensory goes bankrupt you're not going to have a claim so that that is a very significant issue the question will be whether federal courts will enforce contracts so as you as you move through as you move through your work and starting to do business with those who are engaged in this business you have to be cognizant of the fact that you are engaged in a business you are working with those who are in gauges of business that is illegal under federal law that may entail risk of forfeiture may entail your having received funds that have been generated through an illegal enterprise as well as not being able to seek the protection you're not going to be able to use the tax laws in the event that there are certain costs or expenses that you want to deduct that have to do with a medical or recreational marijuana business that again is just sort of an example of the type of risks that are created by this dichotomy this is Jolie I would say there are also specific risks to health care providers as Elizabeth mentioned in Ohio we have only medical marijuana that is that is legal and there are still a lot of open questions regarding exactly how this is going to be fully rolled out and operational from the health care provider perspective interestingly you know when this was all being created providers didn't really have as big of a seat at the table as one might have thought so now we have this framework where as Elizabeth mentioned we have this real disconnect between state law and federal law so for providers that are going to engage in you know treatment with medical marijuana or they are going to allow patients or clients or consumers depending on what terminology you use in what area of the industry you're in you know if it's outpatient care are you going to allow them to bring it on site when they come for treatment or if they are you know in a home and that is part of their treatment are they going to be able to maintain it there and the reason that brings up issues is because there are certain things that are permissible from a state law standpoint but then these providers also have federal credentials you know you're going to be potentially enrolled in Medicare enrolled in Medicaid have DEA credentials so it sets up you know a really really challenging situation for providers to figure out how to navigate these issues to potentially take advantage of opportunities that exist for treatment from a state law standpoint while also you know potentially putting at risk some of these federal credentials now I will say we have not seen the government take an aggressive view on this what you know there are other states that have had for example medical marijuana programs that have been in place for much longer than Ohio we have not seen you know CMS go after Medicare providers in those states that being said we've got obviously a lot going on at the federal level with the administration as Elizabeth I think will mention some the federal government's position on some of this has changed over time so I think while at least right now it looks like the the likelihood of enforcement or action against a health care provider at the federal level is probably pretty low the magnitude is obviously incredibly high you know associated with potentially losing you know enrollment participation in Medicare Medicaid you know and that you could also have implications under you know any private insurance Network agreements that you have as well so you know providers find themselves in a very very precarious spot you know depending on what role you are going to be taking if any in terms of this treatment and getting involved in in the industry and let me just piggyback very quickly on that one area that we're not going to address in depth here is the employment in the employment area but let me point out that again another example of a federal law the Americans with Disabilities Act because it is a federal law does not require an employer to accommodate for the use of medical marijuana so companies can still have drug-free workplaces and that is true even under Ohio law so the question becomes when you are engaged in business and you are trying to figure out your policies and what you want to allow etc and this then dovetails into what Jolie said you want to look at to what extent are you engaged in federal contracting in to what extent do you receive federal funding or federal benefits and I think maybe that wraps that up and I'm willing at some point to again go through what the federal government sort of has pending right now but that may be for a later time that would be great and as Elizabeth mentioned we are going to do a base and Confused series if you will of webinars so stay tuned the second in our series is going to be focusing on employment related issues because obviously wherever you sit relative to this industry whether you have health care provider specific issues you're going to have potential employment related issues and we want to make sure that we go over those Mauri I'll kick it back to you great Thank You Shirley before we move on from the federal aspect would you mind discussing a little bit about the FDA's position with respect to you cannabidiol oh sure this is also something that's unique I you know all the buzz lately is CBD and various claims about you know the therapeutic effects associated with that and I think there's a lot of misunderstanding regarding you know what CBD actually is whether it's legal where it can be sold all of those things so at the previously prior to last summer summer of 2018 they're all medical marijuana related products were Schedule one for for the DEA which meant essentially subject to and and conducive to high levels of abuse and basically no medicinal purposes in the eyes of the DEA and that that was cannabis you know across the board then last summer we got our first fda-approved drug that was derived from CBD and CBD for anyone who doesn't know that's the non psychoactive component of cannabis which is contrasted with THC which is the psychoactive component that gets you quote-unquote high when you're talking about marijuana so in the summer of 18 the FDA approved a drug called epidural X and it's for the treatment of certain rare seizure disorders and as I said it's the first treatment that is FDA approved and derived from cannabis the quandary though was all medical marijuana related products were still Schedule one which meant it could not be put into the market and actually you know distributed and sold for treatment so then this issue got kicked back to the DEA to look at this issue and potentially reschedule epidural X which would then allow it to be made available to the public a few months later in the in the late 2018 the the FDA did or the FDA did just that they moved epidural acts to schedule 5 which means it can then be brought to market for purposes of treatment but the important thing about this is that it the change that was made was only with respect to epidural X all other CBD remains subject to essentially the federal prohibition now the the asterisk I will give you with that is CBD that is derived from hemp and him if we're going to differentiate it from the rest of cannabis is just essentially cannabis with a THC content that is less than 0.3% which means essentially you can't get high off of it and it's viewed as being used predominantly for industrial and commercial purposes you know clothing and and other sorts of things so if you've got CBD oil that is derived from hemp it is not subject to the federal DEA prohibition but it is subject to the FDA regulatory scheme which means that it is still going to be illegal even if it is hemp derived if it has not been approved by the FDA and as I said a couple of minutes ago the only CBD related drug that has actually been approved by the FDA is epidemic so all of these you know CBD lotions and oils and you know other concoctions that that we're seeing they are is they are not at least in Ohio if they are not sold in the dispensary they are effectively illegal in some manner at the federal level the medical marijuana dispensary yeah yeah yes absolutely so I think there's there's been a lot of confusion around that and you know different voices coming in on that because you've had you know the FDA you've had the DEA and then obviously the the state level piece as well which which we'll touch on but long story short is it's not epidural X and it's not CBD that you are getting from a medical marijuana dispensary you know pursuant to a recommendation then it's it's illegal to sell and it's illegal to buy and possess so I think that's a bit different position than what many people are thinking when they're reading a lot of the discussion that's out there on CBD and that sort of jumping into this I think that what has been done in regard to CBD through the federal farm bill is sort of another instance of the federal government starting to take a look and even though that was not marijuana it is sort of indicative of now what is also happening in the cannabis marijuana area under under federal law obviously things are moving slowly there's no surprise there it's Washington DC but there was a recent amendment put in to put into place putting up for vote that would keep the Justice Department from using its funds to prevent state from implementing their own laws that authorized the use of cultivation etc of medical marijuana that is they're looking for something that is going to recognize protection for those states now that have put into place their own state regulatory process a recognition that the state this may be more of a state issue than a federal issue there is a measure that's been introduced to prohibit the Justice Department from prosecuting or penalizing Department of Veteran Affairs workers for filling out paperwork in regard to the youth distribution etc of medical marijuana there is also I guess probably most importantly there's food and drugs is taking on gas and as well as the Department of Agriculture Benzie they've been charged with looking at how do we how do we how do we deal with hemp and and how do we measure the THC content and to make sure that the quality control is there for the Food and Drug Administration they're looking at what it means to process to make sure that there is a safe level for conventional foods and dietary supplements that do contain CBD let me also say this that there are efforts to make marijuana legal generally that are in play senator Booker he has a marijuana Justice Act of 2019 to do just that and there is also the legislation that's been introduced by Senators Warren and Gardner both sides of the aisle the states act of 2019 to leave legalization up to the states importantly there's a banking law that's being considered I think it's still are just coming out of committee that would allow banks to accept deposits and otherwise conduct banking activity again another risk for those dealing with those in the mirror marijuana industry is that banks will not take funds that they know to be derived from this federally illegal enterprise but I would say that US attorney general bar who is personally opposed to the legalization of cannabis has stated that he recognizes that the legalization in 33 states and all of the legal issues that now are that exist is quote unquote an intolerable situation and he is considering endorsing the states Act of 2019 that is a different position than was taken by Ag attorney sessions who actually eliminated a memo that the Justice Department had followed for a number of years that did not prosecute in those states where marijuana was determined to be legal so stay tuned because it is an ever-changing landscape but my guess is that there are enough interested parties out there challenging Congress to do something about this given that the industry is a multi-billion dollar industry in this country great thank you I know we've touched on this somewhat already in our discussion but are there any anything further either one of you would like to comment on in at the state level well I can address this very briefly that under Ohio law that and Joe Lee mentioned this that while hemp has been made quote/unquote legal under federal law or I guess a limited purpose of this break under Ohio law it is still considered to be within the definition of marijuana and therefore subject to the regulations that that govern the medical marijuana industry and that you cannot get CBD oil regardless of what the THC content is without going through all the necessary steps being a registered patient or caregiver going to the recommending physician and then ultimately purchasing it from a state-licensed dispensary the significance of that is there has been CBD product seized in this state from retailers by the Pharmacy Board so it's I think they did that to make sure that that people knew that they were taking control of it so that is that is not insignificant that they actually went in and seized I understand quite a large amount of CBD containing products yeah and in addition to that I know at least on n one instance earlier in 2019 an individual who was pulled over in a traffic stop and was found to have CBD oil in the car was also criminally charged with that because again CBD is is treated as a drug even though oftentimes it is discussed as though it's more like melatonin you know or something that we could buy over-the-counter it is still very much regulated even though the FDA says it's not it doesn't have any drug effects but exactly very confusing exactly it is very confusing I would say beyond that in terms of just state level issues I think one big question that's out there because we haven't seen it tested is for for physicians that go and get the certificate to recommend it is added on to their underlying medical license okay I think a lot of people think that it's very very simple to obtain the certificate and in some respects comparatively to getting your medical license it is but in order to be able to retain it you have to meet certain requirements under Ohio law which includes you know a relatively minimal continuing education requirement but some considerably more robust documentation and reporting requirements and documentation requirements are sort of the bane of any health care providers existence because they're very very technical oftentimes don't make a lot of sense in practice and and can be something that that we can get caught up in easily what we don't know is if we have a physician who does not after obtaining the certification meet all of the requirements and is therefore brought before the Medical Board for for non-compliance do they just lose their certificate to recommend or do they does that have any sort of impact on the physicians underlying medical license similarly for health care providers that employ or contract with seditions you know is there the potential for collateral damage if you will if you employ or contract with physicians that have this certificate to recommend and then don't otherwise meet the requirements to maintain it again just an open issue but certainly one that depending on how the Medical Board operationalizes that and carries it out if and when it will inevitably happen could result in potentially serious collateral consequences and right now we have a few hundred physicians in Ohio that that actually are certified to recommend I think it may be worth noting also with respect to the have an Medical Marijuana distinction that there is currently a bill moving through the Ohio General Assembly that would adopt the same distinction that is currently in place at the federal level under the 2018 farm bill between marijuana generally and have which would resolve some of the some of the discrepancy currently between state and federal law so we are running a little bit short on time and we have a question that I would like to like to pose to our speakers before we before we close today so the question is does the proposed federal amendment only deal with medical cannabis or does it also protect states that have recreational programs you mean to legalize marijuana I believe it's been to a lot of to lead the bill that says to allow it to up to the states to legalize it I believe it if what I'm I'm not exactly sure which amendment but I believe that the and I'd have to take a closer look at Senator Booker's law which I frankly don't think it's going to go anywhere but I think looking at the states rights I believe it's going to at this point and I really frankly don't know whether it's both my guess is it's probably at this point going to leave it up to the states to decide whether they want to do one or the other I think it's going to be hard for them to turn back the clock on those states where they have already allowed it for recreational purposes in don't go ahead Laurie with respect to the Department of Justice memo that would apply to both the record recreational and medical why there's no memo I don't believe at this point by the Department of Justice the Cole memorandum that was that was what should I say repealed or rescinded or whatever yeah rescinded is the right word by Agee sessions did not make a distinction but did just talked about a regulated program and I think that's that's essentially where people pushing for this are coming down that if a state has a highly regulated program that is what they're going to they're going to say okay state we leave it up to you because you have shown it's a highly regulated program that will not allow crime and violence and and folks who are should I say in the black market or whatever to be engaged in this and that that's the concern is to bring it within a regulatory system that works and and I guess if you were asking about what a G bar had said I don't believe he's put that in writing I believe it was in a speech that he gave a couple of other things that I was going to mention what we were going to let some other questions flow in would be you know I've had some experience working with lots of different providers across the industry on compliance issues and I would just encourage those of you who have not thought about that yet from sort of the healthcare provider angle as perhaps distinguished from the employment angle to give some thought to that and sort of where you sit in that industry you know art do you employ physicians or contracts with physicians that are recommending if so do you have malpractice coverage associated with that traditional malpractice coverage policies would not cover the recommendation of medical marijuana there are some specialty insurers that are getting into the space to cover precisely that scope of services but I have also heard from a couple of clients who have been assured by either their brokers or their insurers oh no no it's covered and my advice back to them has been I really think you need to look at the policy because the issue here is sort of also tied in to the fact that there is not a lot of research that has been done on the interplay between medical marijuana and other sorts of treatment in fact legally speaking historically it has only been the government that has been able to do research with respect to treatment efficacy and medical marijuana so because of that we don't know nearly as much about how medical marijuana interacts with other modalities of treatment you know drug interactions things along those lines as we do about other treatments once they typically come to market you know epidural X being FDA approved would be you know the one exception to that but I think you know that brings in professional liability considerations that brings in informed consent issues so let's say you do have someone that you are treating you know is getting on a medical marijuana regimen perhaps even through another provider and then you are providing another service to them you know does your consent form that is signed you know explicitly state you know you you are engaging in this treatment with the understanding that we the provider don't necessarily know what all of these interactions are and that we can't necessarily fully take that into account the way we might other sorts of of ongoing treatments so informed consent and malpractice are two potentially huge issues beyond that if you haven't considered it think about you know if you're an outpatient provider let's say someone who is on a medical marijuana treatment regimen when they come for treatment can they bring their medical marijuana with them in their purse on to the premises you know or could their caregiver bring it with them are they allowed to use it on premises you know it's someone if it's more of an inpatient or residential program someone comes to visit can they bring it with them there are just a host of issues like that that even if you are a provider that doesn't necessarily consider yourself to be kind of wearily within the end of you know within that part of the industry from a treatment standpoint there are a host of issues that you're going to want to think about so at this time if you have any other questions please feel free to type it in the private Q&A box we can address them now or later and I would just I would just a just sort of as a little wrap up just dovetailing on what Jodi has said you know this is many times all of this industry involves many of the same business concerns that any other business has and you're going to run into issues of a lot of risks out there the risks that are involved with the intoxication the risks involved edible as Julie mentioned with insurance with products liability with false advertising a human resource issues banking trademark patent misappropriation nuisance issues the list goes on and on and on so with that being said there is there's there's much to to know oh okay well we got a question asking if we had the names of any of the specialty malpractice insurance companies we do have those names and if you would like those please feel free to email us and we can send those to you directly we don't necessarily have personal experience with those carriers to this point because it's again very very new but we'd be happy to share that information with you well at this time there are no more questions so we'd like to thank you for joining us today should you have any questions after our call please feel free to reach out to any of the attorneys that spoke today this concludes our program thank you so much