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Legal Compliance for Massachusetts Medical Marijuana Dispensaries and Patients
Legal Compliance for Massachusetts Medical Marijuana Dispensaries and Patients

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Massachusetts Medical Marijuana Dispensary Applications May Follow Rhode Island’s Procedure
The following post will be a comparison of the Massachusetts medical marijuana law and the application process in Rhode Island.  Future blog posts will address the application process in other states.  The goal of these posts is to help dispensary applicants understand what the Department of Public Health (DPH) will expect from dispensary applications in Massachusetts.
In Massachusetts, dispensaries are also known as treatment centers.  Mass law allows for treatment center agents who are at least 21 years old and have no prior drug felony convictions.  Agents are employees or board members of the dispensary.  Massachusetts law allows for acquisition and dispensing of medical cannabis by dispensaries.
The DPH requires that treatment centers register.  This means they must pay an application fee, state the legal name and physical address of the treatment center, including another location if needed where cannabis will be cultivated for the dispensary.  The application must state the name, address and date of birth of each officer or board member.  They must have operating procedures that follow DPH rules for oversight and cultivation and storage of medical cannabis in an enclosed and locked facility.
In the first year the DPH will issue regulations and permits for up to 35 dispensaries, with a maximum of 5 and no fewer than 1 dispensary in each county.  If the DPH believes that the number of dispensaries is insufficient to supply the patients in Massachusetts, they can increase the number of dispensaries across the state.  The DPH has 120 days from January 1st, 2013 for the promulgation of rules to govern the application process and regulation of dispensaries.
So what does that mean?  If one solely follows the law as it currently exists their application need not have much.  Name, identity of applicants, and operating procedures for cultivation and storage.  You can be certain that the applications will need more than that.  The DPH wants to know that those receiving permits are actually able to open the dispensary.  A look at the Rhode Island application procedure is good evidence of what else the Massachusetts medical marijuana dispensary application will look like.
Quality Rhode Island medical marijuana dispensary applications include the following:
The legal name, articles of incorporation and bylaws of the nonprofit “compassion center.”
The physical address of the dispensary.  The Rhode Island application allows for applicants to state the general area of the proposed dispensary and not necessarily provide a specific address.  This differs from the Massachusetts law as it currently stands.
Some Rhode Island applications included statement from supporters of the proposed dispensary including local patients and business leaders in that community.
Job descriptions, employment records and training manuals for all dispensary employees.
Policies and procedures for secure, private storage of the medical records of all patients that acquire cannabis at the dispensary.
A statement that the dispensary will take steps to respect their neighbors.
A policy for inspection of the facility by the governing body.
Policies for responsible cannabis use.
Policies for cannabis packaging, tracking and labeling.  Including a description of methodology to make sure that patients do not obtain more than the limits imposed by the law.
A complete operations manual.
A statement of the business experience that the applicants have which would enable them to run a dispensary.
A statement of how the dispensary will provide sufficient cannabis to meet the needs of the patients that procure cannabis at that dispensary.
A business plan or part thereof that shows operating expenses and profits.
A statement and evidence that the applicants have the financial wherewithal to open and operate the dispensary.
Evidence that the locations are not near schools or parks.
The foregoing is a partial list of what the Rhode Island application looks like, and what you can expect the Massachusetts medical marijuana dispensary application to require.  If you are interested in operating a dispensary, and would like some help drafting the application, contact us for assistance.
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The Massachusetts Medical Society has Advice for the Department of Public Health on how to Implement Medical Marijuana in Massachusetts
The Massachusetts Medical Society is the professional association for doctors and medical students in the Commonwealth.  Dating back to 1781 they have in excess of 24,000 members.
They were represented at the February 14th DPH listening session that took place in Boston, and submitted a written statement with comments and suggestions on how the DPH should implement the medical marijuana program.
The Society’s president, Richard Aghababian, M.D., spoke out against Question 3 when it was up for a vote by Mass residents in November of 2012.  The reasons for the Society’s opposition are as follows: medical marijuana has not been tested by the FDA like other drugs they approve; that according to Dr. Aghababian marijuana smoke is more poisonous than cigarette smoke; that the use of marijuana has been associated with the long-term impairment of mental capacity; and that physician prescribing of any drug should be based on scientific fact, and not by the voters.  They do support the development of smokeless forms of cannabis for research purposes.  Noteworthy is that their opposition statement advocated for the rescheduling of cannabis under federal law so that it can be studied.
On December 2, 2012 after the passage of Question 3 the MMS has changed their policy on medical marijuana.  While they are not for open access to cannabis, and certainly oppose its recreational use, given the proper implementation, they are no longer opposed to the medical marijuana program in Massachusetts.  Their new policy has input on seven areas of the law:  they want to work with the Board of Registration in Medicine to determine what constitutes a bona fide physician/patient relationship, and they want required parent authorization before a minor can be certified for the use of medical cannabis; they want to develop standards for certification by physicians which include the requirement that physicians have a Federal Drug Enforcement Agency Registration, a Massachusetts Board of Registration in Medicine, and a Massachusetts Department of Public Health Control Substance Registration; they want a certification to be based on a physician’s determination that pain can not be controlled with non-cannabis treatments; they want consideration of occupational health and safety; they want recommendations from the American Society on Addiction Medicine to be included; they want the Prescription Monitoring Program to be involved with treatment centers; and finally that existing peer reporting requirements do not apply to doctors who certify their patients for medical cannabis.
These requirements were largely addressed in their written comments to the Department of Public Health on February 14, 2013.  The Massachusetts Medical Society has extensive information on their website about their stance on medical marijuana in the state.  As always, let me know your thoughts.
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Debilitating Medical Condition Under the Massachusetts Medical Marijuana Program May Not be Amended by the Department of Public Health
The Department of Public Health is inviting comment about what should qualify as a debilitating medical condition under the medical marijuana Act, and many concerned patients are speaking up about it at the Listening Sessions occurring across the state during the month of February.  An analysis of the law dictates that the DPH may not amend the law by specifying a finite set of conditions that qualify.
Massachusetts Ballot Measure known as Question 3 from the November 2012 ballot was introduced as an initiative petition.  See the Secretary of the Commonwealth of Massachusetts 2012 Information for Voters on Question 3.  The Constitution of the Commonwealth of Massachusetts, Part the First, Article IV states in relevant part,
“[t]he people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state. . . .”
Constitution of the Commonwealth of Massachusetts, Part the First, Article IV.
Concerning an initiative petition that is submitted to the people at a state election, as Question 3 was, the amended Constitution states in relevant part,
“[i]f it shall be approved by voters equal in number to at least thirty per cent of the total number of ballots cast at such state election and also by a majority of the voters voting on such law, it shall become law, and shall take effect in thirty days after such state election or at such time after such election as may be provided in such law.”
Constitution of the Commonwealth of Massachusetts, Articles of Amendment, Article LXXXI, Section 2.
As we know, Question 3 was approved by the requisite number of voters.  The final piece to the law behind the argument that the DPH may not define a finite set of debilitating medical conditions that qualify for medical marijuana is the fact that only the General Court, may repeal or amend a law approved by the people, and even then the people have the power of referendum.  Constitution of the Commonwealth of Massachusetts, Articles of Amendment, Article XLVII, General Provisions, VI.
Therefore, following the Commonwealth’s Constitution, only the General Court may repeal or amend a law approved by the people.  While the DPH exercises great power as per the language of the Act, they may not amend sections that are not enumerated as being subject to their further regulations.  The language of the portion of the Act in question is,
“(C) “Debilitating medical condition” shall mean:
Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis and other conditions as determined in writing by a qualifying patient’s physician.”
An Act for the Humanitarian Use of Medical Marijuana, Section 2(C).
Nowhere under section 2(c) of the Act does it grant the DPH the authority to determine what other conditions may qualify a patient for the medicinal use of cannabis.  Therefore, the DPH simply does not have the authority to remove the “other conditions” language and create a finite list.  Unfortunately, this may need to be sorted out in the courts.  As in California when in 2004 the legislature implemented restrictions on cannabis quantities that were not present in the 1996 voter initiative that created medical marijuana in that state.  It took over a decade for the litigation to make its way through the courts, and during that time people became felons simply because they had a bumper crop.   Most of the Massachusetts law is written so as to avoid these issues, but it seems under the issue of what debilitating conditions apply, the DPH seems to think they have a power not expressly enumerated to them.
As usual, readers you are encouraged to weigh in on this analysis.
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Massachusetts Marijuana Legalization from Hemp to Decriminalization to Medical Marijuana

As a California transplant, I have been wondering what came before the Act for the Humanitarian Medical Use of Marijuana, i.e. Massachusetts’ new medical marijuana law.  In this post I will describe what I have been able to find out about the history of marijuana legalization in Massachusetts thus far.

As far back as 1639 the Massachusetts courts forced all families to plant one teaspoon of hemp seeds, so that cloth might eventually be produced from it.  Taxes were paid with hemp cloth almost four hundred years ago.  Yet, as you are probably aware, today’s high cannabinoid content marijuana is not equivalent to hemp.  It has taken decades of  marijuana breeding to make the potent product of the flowering females that exists today.  So how has modern Massachusetts dealt with it?  As further research is conducted, this post will be updated.  As a reader, do not hesitate to post your thought on marijuana legalization.

Starting in the year 2000 legislative districts across Massachusetts have passed thirty non-binding policy questions calling for civil fines for marijuana possession, and not criminal penalties.

The Sensible Marijuana Policy Initiative was on the November 4, 2008 Ballot as Question 2.  It passed with over 65% of the vote.  The ballot measure made the following law:

It made it eliminated criminal penalties and made it a civil infraction with a $100.00 fine for possession of under an ounce.  The $100.00 goes into the coffers of the city where the offense happened.
It had no effect on the existing penalties for growing, trafficking and selling cannabis.  Nor did it effect the penalties for driving under the influence of cannabis.
It ended Criminal Offender Record Information (CORI) reporting for minor marijuana infractions.
It ended the potential for a $500.00 fine and a six month jail term for those convicted of simple marijuana possession.
It imposed a trade-off by making marijuana penalties tougher on minors, adding the requirement of reporting the offense to the minor’s parent, a drug awareness program, ten hours of community service, and delinquency proceedings if the minor doesn’t comply with these penalties.
The Sensible Marijuana Policy Initiative had many supporters, but surprisingly, some law enforcement supported it, including the Brookline Police Department and numerous veterans of Boston PD.

House Bill 2247 in 2007 and Bill 2160 in 2009, the Massachusetts Medical Marijuana Act, (having a counterpart in the State Senate) attempted to make medical marijuana available to patients for whom its use was approved by their doctors and certified by the Department of Public Health.  It was never enacted.

In 2011, House Bill 625 was introduced in the Massachusetts legislature.  This bill was similar to the Act for the Humanitarian Medical Use of Marijuana, but vastly more thorough as it had to be.  The Bill was discharged to the Committee on House Rules on October 18, 2012, and then went no further because medical marijuana was passed by the voters three weeks later.

Finally, we come to 2012 and The Act for the Humanitarian Medical Use of Marijuana which is the subject of this website.

Additional research will yield more facts for this article about marijuana legalization in Massachusetts, and it will be updated accordingly.
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How to Become a Massachusetts Medical Marijuana Caregiver
Posted on February 6, 2013
How to Become a Massachusetts Medical Marijuana Caregiver

Like the constant queries about becoming a patient, people frequently email and call me with questions, asking how to become a Massachusetts medical marijuana caregiver for others.  Just like becoming a patient and obtaining a medical marijuana card, it is not complicated.

Step 1: the patient needs to be certified for the medicinal use of marijuana.  This means they need to speak with their doctor, and obtain a written certification.  Mass compliance attorneys have a form for our clients if the patient’s doctor does not know how to go about certifying them.  At a minimum the certification needs to be signed by a licensed doctor, stating that the doctor believes that potential benefits of medical marijuana likely outweigh any possible harm, and the certification must state the patient’s debilitating medical condition.

Step 2: the patient needs to designate the caregiver as their personal caregiver by sending a letter/application to the Department of Public Health.  Mass compliance attorneys have a letter/application we have drafted that we provide to our clients.  You must be 21 years old to act as a caregiver.  The letter must state the patient’s name, address (unless homeless) and date of birth.  The patient must attach the written certification from the patient’s doctor to the letter/certification.  It must designate the caregiver by stating the name, address and date of birth of the caregiver the patient wishes to designate.  Although the law doesn’t specify, the patient should sign the letter/application if able.  Make copies of the doctor’s certification and the letter/application.  Send copies of the letter/application and the doctor’s certification to the Massachusetts Department of Public Health, 250 Washington Street, Boston, Massachusetts 02108.  Make sure it is sent certified mail with a return receipt.

Step 3: the patient and caregiver should each have their own copies of the doctor’s certification, the letter/application and the return receipt in one package.  These documents will be the caregiver’s registration card until the DPH issues them.  Whenever the caregiver is in possession of medical cannabis, they should also be in possession of these documents.

Step 4: if the personal caregiver will be cultivating medical cannabis for their patient(s), they should also affix a set of these documents to the wall of the locked area where the cannabis will be grown.  The documents should be immediately visible to anyone who enters that room.  That way there will be no question that it is a medical marijuana grow.  This is particularly important if law enforcement enter the area.

What does this entitle the caregiver to do?  According to the law in Massachusetts a caregiver can provide medical marijuana to the patients who designate them.  They can transport it to the patient, they can cultivate it for the patient, and they can process into foods and other products that contain medical marijuana for the patient.  A look at other New England laws, and at the legislative bills that never passed in Massachusetts lead one to the conclusion that a caregiver may not act as such to more than five patients.  Undoubtedly the DPH will issue this as a regulation when they are through drafting them.

Any amount of Marijuana is illegal under federal law, even for qualified patients who have been certified by their doctor and their caregivers.

If after reading this article you are still confused or want our doctor’s certification form and our letter/application to the DPH contact us and set up a consultation.  We will discuss the law with you, answer all your questions, and provide you with the forms you need.

That’s it!  Now you know how to become a Massachusetts medical marijuana caregiver.  Please post here if you have any questions, comments, or concerns.
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Massachusetts Marijuana Cards
Posted on February 4, 2013
How to Get a Massachusetts Marijuana Card and What the Card Means

I receive countless emails and phone calls every day from patients who are seeking a Massachusetts marijuana card, but don’t know how to obtain one.  The medical marijuana law in Massachusetts is rather straight forward.

In order to become a compliant medical marijuana patient in Massachusetts, a patient must obtain a written certification from a doctor.  I advise my clients to speak with their primary care physician first.  The reason I recommend speaking with one’s primary care physician first is because the law requires a “bona fide physician-patient relationship.”  What does that mean?  At a minimum it means that a doctor should review your medical history before certifying you for the medicinal use of marijuana.  The law was drafted to avoid the doctor mills that popped up across California, where a patient would spend three minutes detailing the pain in their knees to a doctor, and after paying $200.00 obtain a certification (recommendation in California) from that doctor.  Thankfully, the medical marijuana program in Massachusetts seems to have more credibility than the program in California.

As of now the Department of Public Health, which is overseeing the medical marijuana program, is not issuing cards.  A patient needs to keep a copy of the certification from the doctor with them, and that will act as their card.  Eventually a patient will be required to send the certification form in to the Department of Public Health, with a simple application including their name, date of birth and address, unless they are homeless.  As of now there is no application fee associated with becoming a patient, and it will probably stay that way.

This card, or certification until cards are issued, should give the patient an immunity from arrest.  Unfortunately, my experience in California is that some members of law enforcement fail to respect medical marijuana laws and force patients to prove themselves innocent in a court of law.  I don’t want to spin off-topic, so that may be the subject of another blog post.

The Massachusetts marijuana card or certification also allows a patient to cultivate medical cannabis sufficient for a 60 day supply.  How much is that?  The DPH is figuring that out right now and will let us know when they do.  Make sure you grow in a locked area.  Post your certification on the wall in the area you are growing, so that law enforcement will see immediately that it is a medical marijuana grow.  Eventually, when treatment centers (dispensaries) open a patient may be forced to purchase cannabis from them instead of growing their own.  The patient who wishes to continue growing will have to apply for a hardship cultivation registration from the Department of Public Health.  The hardship will need to be something like the physical incapacity to get to a treatment center, or the fact that there is no treatment center within a reasonable distance, or possibly a financial hardship.

If your doctor is not opposed to medical marijuana, but does not know how to certify you for the use, read the text of the new law for guidance.  If you still do not know what to do, contact us, schedule a low-cost consultation, and we will meet, discuss the law with you, both state and federal, and provide you with a form you can use with your doctor.  Some places like Cannamed don’t need our form as they do everything themselves.  You can also check out the Compassionate Caregivers of Massachusetts website to find a physician who will certify you.

I will explain how to become a caregiver, and the relationship between caregiver and patient status in a future blog post.

What does this mean for federal law?  Well, nothing.  Under federal law, as was detailed to me once by a DEA agent, and is clear from the Controlled Substances Act, any amount or use of marijuana remains illegal.  The President and the Attorney General have made it clear that they are not prosecuting patients who comply with medical marijuana law.  Such prosecutions are extremely rare but your Massachusetts marijuana card is not an immunity from federal prosecution.

I hope that helps explain how to obtain your Massachusetts marijuana card.  Please post with any questions or concerns and I will try to follow-up.
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Which Towns Oppose Medical Marijuana?
Posted on January 31, 2013
Massachusetts towns oppose medical marijuana – Some try to ban it, and some simply to impose a moratorium.

I get the question almost every day, “do you know which towns oppose medical marijuana?”  Thanks to Google Alerts I read the news articles, but have not compiled the information for my clients and readers.  Some are trying an outright ban, which will not hold up to a court challenge, and some are trying a moratorium, which will probably expire before a court challenge is ruled on.  This post is an effort to compile which towns have tried or are trying to ban or implement a moratorium on treatment centers.  With the exception of Reading, Wakefield and Melrose, the proposed moratoriums still need to be voted on over the next few months.  Not surprisingly, Reading, Wakefield and Melrose have the same health director, Ruth Clay.  The Massachusetts Municipal Association also calls for a delay in the law.

If you know of any additional towns that are not listed here, please comment with that information.  If any of this information is incorrect, please correct me.

Brookline, moratorium.

Burlington, moratorium.

Cambridge, moratorium.

Melrose, ban.

Needham, moratorium.

Peabody, ban.

Reading, ban.

Scituate, moratorium.

Sudbury, moratorium.

Wakefield, ban

Walpole, moratorium.

Waltham, moratorium.

Wellesley, moratorium.

The fact that the town planners are considering a ban or moratorium, and putting it up for a vote, does not mean that it will pass.  The planners are simply doing what they think is right for the residents of their town.  If you want to open a dispensary in one of these towns do not give up hope.  Get in contact with the planning board and find out what is happening.

Towns that have rejected a ban or moratorium, at least until the Department of Public Health issues further information:

Lynn, Marshfield
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DPH Public Hearings | Department of Public Health Wants Your Input
Posted on January 30, 2013
DPH Public Hearings Will Be Held Throughout February.  The Massachusetts Department of Public Health is Inviting the Public to Weigh in on Various Aspects of the Medical Marijuana Program.

If you are interested in medical marijuana in Massachusetts, go to one of the DPH public hearings that are set to run in February across the state.

The first will be held on Wednesday, February 13 from 2 to 5PM at the Worcester Public Library, Saxe Room located at 3 Salem Square, Worcester, MA 01608.

The second will be in Boston on Thursday, February 14 10 to 1PM at Roxbury Community College in the Reggie Lewis Track & Athletic Center located at 1350 Tremont St., Boston, MA 02120.

The third and final “listening session” will be in Holyoke on Wednesday, February 27 from 1:30 to 4:30PM at the Holyoke Community College in the Kittredge Business Center located at 303 Homestead Ave., Holyoke, MA 01040.

Thankfully these hearings will not be a general rant and rave about the law, as you might fear.  There is a specific agenda announced.  The DPH wants suggestions on the following areas of the new medical marijuana law:  patient eligibility and debilitating medical conditions, guidance and training for physicians, operations of a medical marijuana treatment center, what is reasonable for a 60-day supply of marijuana, the use of marijuana in food products for medical purposes, the requirements for hardship cultivation registrations, and monitoring of medical marijuana treatment centers.

This author certainly has opinions as to the best way to run the program.  Lessons learned from extensive practice in California may be valuable in Massachusetts.  Patient eligibility should be left between a patient and their doctor.  If the DPH gets involved with this, they will be engaging in the practice of medicine.

Guidance and training of physicians is an area where nothing whatsoever was done in California.  It would be great if Massachusetts gave doctors some guidance.  It would add legitimacy to the program.

I will be attending the Boston DPH public hearing, and I hope to see you there!
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White House Response to Federal Legalization of Medical Marijuana Petition
Posted on January 25, 2013
Federal Legalization of Medical Marijuana is Not on the Horizon

The White House Response to the petitions for the federal legalization of medical marijuana show how little they care about the topic.  They didn’t even bother to draft a response, instead they quoted the President’s interview with Barbara Walters.

Click here for the text of the White House Response at the official White House site.

Three petitions for the legalization or rescheduling of marijuana were responded to by the White House, and they put zero effort into drafting the response.  It is clear that this administration is not going to spend an ounce of effort in dealing with the conflict between state and federal laws that exists over marijuana.  Although many people would argue that there is so much else going on – marijuana policy should not be at the top of the list.  But that does not mean it shouldn’t be on the list at all.  The White House did nothing more than quote a Barbara Walters interview with the president in responding to these petitions.

The president said, “we’re going to need to have is a conversation about how do you reconcile a federal law that still says marijuana is a federal offense and state laws that say that it’s legal.”  That is code for we aren’t going to do anything.  No mention of an executive task force or a date for this discussion that they need to have.

Then in a totally irrelevant bit of pandering rhetoric he said, “[w]hen you’re talking about drug kingpins, folks involved with violence, people are who are peddling hard drugs to our kids in our neighborhoods that are devastated, there is no doubt that we need to go after those folks hard….”

In a nation with an overburdened criminal justice system, common sense would dictate that removing the marijuana prosecutions would alleviate some of that pressure.  But that ignores the money that goes in to keeping marijuana illegal and the political motivations of all the stakeholders, including major pharmaceutical.  Further blog posts on this topic will be forthcoming.

Unfortunately, the rescheduling of medical marijuana will take an act of Congress.  This author’s opinion is that no member of Congress is willing to spend the political capital to begin the process.  Law enforcement wants marijuana to remain illegal in all its forms so that they can continue to use marijuana as a basis to search and arrest people, and get them into the system.  It is almost impossible to get elected if law enforcement opposes one’s campaign.

The White House put more effort into their response to the petition to build a Death Star.  Who said the Executive doesn’t have a sense of humor?

See what President Obama said when he was running for office.  Then see if his rhetoric matches the Controlled Substances Act.  If you haven’t already, read the law in Massachusetts.

Contact a licensed Massachusetts attorney to be certain that you are compliant with the laws of the Commonwealth.
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