Medical Marijuana Raises Fears Over Reach of Occupational Licensing Laws

PhysiciansOlgaMedical associations are generally pretty control-freaky, and don't generally earn a reputation for advocating looser rules over anything. But the Massachusetts Medical Society is trying to get with this whole medical marijuana thing by oiling the bureaucratic wheels and developing standards and procedures for certifying patients as eligible to use federally disfavored plants for their medicinal qualities. But, in the process of submitting its written comments to the state Department of Public Health, the physicians' guild raised a bit of a kerfuffle with one little question. And that question has people wondering just how vulnerable people who have lobbied so hard to limit access to their trades with licensing laws might be if they buck their masters on this — or, potentially, any — issue.

In its submission, "MMS Comments Submitted to Department of Public Health’s Listening Session on Medical Marijuana," the med-o-crats ask:

May licensed individuals participate in the certification process without concerns regarding their licenses?

Hmmm ...

So far as I can discover, this hasn't, yet, been an issue in states that allow medical marijuana. Arizona did delay legalizing the stuff with an early incarnation of a medical marijuana ballot initiative by using the word "prescribe" rather than "recommend" or the other work-arounds that states have used. Prescription powers are strictly regulated by the DEA*, and we all know how friendly that federal agency is to any mention of the word "marijuana." But even if the DEA isn't formally invoked, Beetlejuice-style, might there still be issues? Boston's WBUR frames the dilemma:

One potential scenario: A doctor who becomes a medical marijuana patient would be at “significant risk” of violating his or her license to practice medicine, according to Bill Ryder, legislative and regulatory counsel for the Massachusetts Medical Society.

Ryder says the main problem for doctors is a question on the state license application that asks, “Do you use an illegal drug?” The state Board of Registration in Medicine, which reviews physician licenses and applications, may still be bound to interpret “illegal drug” according to federal law.

“So the board could require you to report that and then judge you on the basis of the fact that you may have violated federal law,” Ryder explains.

The resolution to that problem isn't clear, one way or the other. But, while physicians in other states don't seem to have run into difficulty, marijuana-unfriendly jurisdictions absolutely have yanked business licenses from property owners who rent to dispensaries. Licenses of all sorts often include vague wording and requirements, subject to to interpretation by the people who grant them and can revoke them. Occupational licensing-wise in Massachusetts, says WBUR:

There’s no clarity yet from state licensing boards. Panels that review nurses, mental health workers, dentists and many other professions says they are waiting for the Department of Public Health to write regulations on medical marijuana before “determining whether changes to board regulations or policy may be appropriate.”

But cops and security guards are definitely screwed.

“Any person who uses or is addicted to marijuana, regardless of whether the state has passed legislation authorizing marijuana use for medicinal purposes, is prohibited by federal law from possessing firearms or ammunition,” says Donna Sellers, a spokeswoman for the Bureau of Alcohol, Tobacco and Firearms.

People in many occupations often find licensing an easy way to "professionalize" their industries and to, quite honestly, raise an often stupid and expensive barrier to entry so as to protect the income of existing practitioners. But, in doing so, they turn the right to make a living into a state-granted privilege. And the power to revoke that privilege is exercised by government officials who might be moved to act by the use of medical marijuana — or anything else that displeases them.

*I checked with my physician wife, and it turns out this isn't legally correct, but has become a reality of the health care industry. The DEA number is now the Social Security number of medicine — a universal ID number that you really can't do without.

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  • ||

    she's right about the cops part, and note that TECHNICALLY speaking, under federal law, if you have a medical MJ card AND you have a CCW you have just provided the feds with prima facie evidence that you are violating federal law (since under the statute, notice is taken that if you have a medical MJ card, you can be assumed under the law to be a user of same).

    think about it. if you live in a medical MJ state, you get a medical MJ card, AND you have a CCW (and firearms), you have committed a federal felony

    it's ridiculous, but just another example of how ridiculously overreaching federal law is

  • ||

    Would you help enforce that law?

  • ||

    no, and because it's federal i wouldn't have to.

    to my knowledge, it's not being enforced. there are literally scores of thousands of people who would fall under its umbrella (possessing a firearm and using marijuana) if the feds ever decided to enforce it

  • Gladstone||

    This should be Reason's Official Anthem. Perhaps Toby Wing or Gertrude Michael should replace lobster girl.
    http://www.youtube.com/watch?v=rnySJxE_XQA

  • JeremyR||

    No, it should be Rush's 2112

  • Number 2||

    New Jersey's medical marijuana statute provides that state-issued medical licenses cannot be revoked because physician authorizes medical marijuana use in accordance with NJ law. Of course, that does not protect any federal license, permit or authorization that the physician may hold.

  • BladeDoc||

    Which could lead to the revocation of your DEA license. So you'd be in the weird position of a physician that cannot prescribe any controlled substance EXCEPT marijuana.

    Yes I know you can't prescribe MJ either only "recommend". Still funny.

  • Tulpa (LAOL-PA)||

    The harms possible from an incompetent cutting someone's belly open is a tad more irreversible from arranging furniture.

  • ||

    the issue here is that a physician who uses medical mj doesn't become incompetent by doing so.

    states that have legalized medical mj need to get their licensing boards up to speed, to make sure that mj does not fall under the definition of "illegal drug" for the licensing purposes.

  • Robert||

    Prescription powers are strictly regulated by the DEA


    Wrong. Jerry, you just don't know what "prescribe" means, legally or medically. There is no difference, legally or medically or any other way, between "recommend" and "prescribe". Anyone is legally allowed to prescribe marijuana or anything else. What DEA regulates is dispensing, not prescribing -- filling the prescription, not writing one. The use of "recommend" vs. "prescribe" in medical marijuana laws is of no significance, except to show that some people don't understand what prescription is.

    If someone's license to practice medicine depends on a standard of care based on proper prescribing, it doesn't matter if the doctor calls it a "recommendation".

  • jdtuccille||

    When you prescribe -- go through a pharmacy -- the pharmacy wants your DEA number before it will dispense the medication. The prescription won't be fulfilled without it.

  • jdtuccille||

    To clarify, the DEA doesn't regulate prescription drugs -- that's the FDA -- but the DEA number is used as a unique identifier for everybody who has the power to prescribe. If the DEA yanks it, you're out of business.

  • Robert||

    Everybody has the "power" to prescribe. You don't need to be a doctor to do so. Do you not understand the difference between prescribing and the filling of a prescription?

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