Since Pennsylvania Senate Bill SB3 passed on April 17 (codified as P.L. 84, No. 16, otherwise known as “Act 16”) new issues regarding pot use have sparked. As discussed in my previous post, the Disciplinary Board of the Supreme Court of Pennsylvania proposed amendments to PA Rule of Professional Conduct 1.2 to contemplate legal advice rendered concerning the legalized use of medical marijuana. Though the comment period ended on June 3, it appears that the Disciplinary Board has not yet adopted the amendments to the rule. We will provide updated information as it becomes available. In addition to the proposed changes to PA legal ethics rules, certain other developments have arisen since April. Perhaps the most exciting update is that medical marijuana patients under the age of 18 now have access to the drug, pursuant to the first temporary regulation published under Act 16. Pennsylvania Health Secretary Dr. Karen Murphy indicated the legislature’s intent in assisting ailing children through the passage of the law, and as such, patients under the age of 18 are the first in line to reap the benefits of the law.
However, patients’ parents and caregivers will have to register with the PA Department of Health to obtain a safe harbor letter, and secure a special identification card for their minor child before being able to obtain the drug. In applying for a safe harbor letter, parents and caregivers need to submit the following:
- A completed electronic copy of the Safe Harbor Physician Form;
- A completed electronic copy of a Pennsylvania background check (instructions).
The regulations provide legal guardians, caregivers, and spouses to apply for a safe harbor letter as well, but legal guardians will need an electronic copy of their guardianship papers, caregivers, an electronic copy of their caregiver status, and spouses, an electronic copy of their marriage certificate in order to complete the application.
Unfortunately, these are not the only steps; parents and other caregivers will then have to obtain marijuana from outside the state as marijuana plants will not yet be cultivated, and thus, marijuana in the legal form will not be available within the state’s borders. Any parent or caregiver administering medical marijuana to his or her minor patient would have to carry around the safe harbor letter whenever transporting medical marijuana outside his or her home. Some commentators find the temporary regulation discussing transportation of the drug vague, and voiced concerns regarding federal prosecution relating to transporting marijuana across state lines, as such still remains a federal offense. PA State Health Department Official Wes Culp did not discount these concerns, and reiterated that “marijuana is a Schedule I controlled substance under federal law” and that “[t]he U.S. Department of Justice has the authority to enforce civil and criminal federal laws relating to marijuana use and possession.” Patients over the age of 18 will have to wait 18 to 24 months before gaining access to the drug.
Another development was published in the July 9 Governor’s Office Regulatory Agenda, indicating that the PA Department of Education will be, or has the present intention of, formulating regulations addressing the “possession and use of medical marijuana by students and employees on the grounds of a preschool, primary school and a secondary school.” These regulations are scheduled to be developed and considered in Spring 2017.
Further, regulations involving growers and processors is another one of the first temporary regulations created, enabling entities to establish themselves and begin producing products. Last month, the PA Department of Health published a survey calling for comments regarding the development of this particular regulation. Secretary Murphy noted that it is “[o]ur vision  to have a high quality, efficient, and compliant medical marijuana program for Pennsylvania residents with serious medical conditions as defined by Act 16… [that is] transparent,” and highlighting that effective communication “throughout the process with the public, stakeholders, and our partners” is crucial as the Department is “very interested in [receiving] feedback.”
One last new development concerns the certification of doctors who may recommend the use of medical marijuana. Other states’ medical marijuana programs have suffered due to doctors’ hesitancy in recommending marijuana as a treatment option to their patients. To, perhaps, legitimize use of medical marijuana in the state, the PA Department of Health has established a “physician working group” to aid in implementing Act 16 with the assistance of various medical health systems (including Thomas Jefferson, Temple, and the University of Pennsylvania). The group’s purpose is to ensure the swift, effective implementation of Act 16 and the medical marijuana program it creates. The group will convene over the course of the next few weeks.
Subsequent temporary regulations will be published relating to dispensaries and laboratories by the close of the year.