The ancillary companies that provide goods and services to the cannabis industry are legion. From equipment, real estate, legal services, and technology to packaging, labeling, intellectual property, hardware, and apparel, the list is basically endless for the opportunities that abound in the cannabis ancillary sector. One of the cooler ancillary areas that hasn’t gotten a ton of play is the cross section of telehealth and medical cannabis, especially where medical cannabis has overwhelmingly been deemed an essential service during COVID.
Just like state cannabis regulations, telehealth regulations vary by state. Telehealth (also known as telemedicine) is “. . . the distribution of health-related services and information via electronic information and telecommunication technologies.” The use of telehealth has seen a considerable uptick during the pandemic. And securing cannabis recommendations from physicians via telehealth apps or platforms is no exception. Of course, giving and securing a recommendation in this manner comes with some caveats. In this post, I focus specifically on California’s current relationship with telehealth and cannabis, which has thankfully evolved.
Telehealth compliance in California is governed by, among other things, Business & Professions Code, Section 2290.5. The Medical Board of California (“MBC”) also provides comprehensive guidance regarding telehealth as well as guidance on physicians recommending cannabis for their patients. Specifically, MBC guidance on cannabis and telehealth provides that “[t]he use of telehealth in compliance with B&P Code section 2290.5, and used in a manner consistent with the standard of care is permissible.” Does this mean then that California physicians can start using telehealth to virtually dole out cannabis recommendation after recommendation? Definitely not. Let’s start with the cannabis side of things.
Proposition 215 (aka Health and Safety Code Section 11362.5), passed in 1996, permits qualified patients to acquire and use cannabis for specific medical needs via recommendations from their treating physician (cannabis cannot be prescribed because it is a federally illegal, Schedule I controlled substance). According to the MBC:
physicians should document that an appropriate physician-patient relationship has been established, prior to providing a recommendation, attestation, or authorization for cannabis to the patient. Consistent with the prevailing standard of care, physicians should not recommend, attest, or otherwise authorize cannabis for themselves or family members.
Further, pursuant to Business and Professions Code section 2525.2, a physician can’t recommend cannabis for medical purposes to a patient unless the physician is the patient’s attending physician, and “attending physician” means a “physician who has taken responsibility for an aspect of the medical care, treatment, diagnosis, counseling, or referral of a patient.”
The physician must also conduct and document a medical examination of the patient before deciding whether or not medical cannabis is appropriate for recommendation. At minimum, per the MBC, that physical exam (which maybe could be done now remotely because of COVID) should include:
the patient’s history of present illness; social history; past medical and surgical history; alcohol and substance use history; family history with emphasis on addiction, psychotic disorders, or mental illness; documentation of therapies with inadequate response; and diagnosis requiring the cannabis recommendation.
Business and Professions Code section 2525.3 states that physicians recommending cannabis to a patient for a medical purpose without an appropriate prior examination and a medical indication, constitutes unprofessional conduct. And all of this is in the context of a physician exercising the appropriate standard of care, which also includes, among other things, maintaining a treatment plan, ongoing monitoring of the patient, and compliant recordkeeping.
So, how can a cannabis telehealth business take advantage of Prop. 215?
There are two types of telehealth business models in play. Synchronous (use of video conferencing or a telemedicine app or platform to recreate an in-person experience) and asynchronous (where there’s no virtual interaction between physician and patient, but the patient provides all of their medical information via an app or tech platform to be reviewed later by their treating physician). Typically, a third party company (made up of non-physicians) provides the app or tech platform while the physicians that utilize the platform treat patients accordingly. When we get inquiries from telehealth companies around cannabis recommendations in California, they want to know whether it can be done in the first place (“yes”), and whether they can have a financial relationship with a dispensary or other cannabis licensee that will provide cannabis to those patients accessing their app or tech platform.
And that is where things get interesting. In my next post, I’ll analyze whether a telehealth company can lawfully have such a set up in California. So, stay tuned.