What do healthcare providers need to know?
Possessing marijuana in Kentucky is a Class B misdemeanor punishable by up to 45 days in jail. Two significant events in the last ten months, however, have minimized the likelihood of prosecution for individuals possessing marijuana for medicinal use. On November 15, 2022, following the Kentucky Legislature’s failure in 2020 and again in 2022 to pass a medical marijuana bill, Governor Beshear signed Executive Order 2022-798 granting a full and complete pardon to anyone who after that date is accused of possessing “medicinal cannabis” under certain conditions.1
This past spring, the Legislature enacted medicinal cannabis legislation, which has been codified in KRS Chapter 218B. However, only eleven of the twenty-nine separate sections of Chapter 218B are currently in effect. The other eighteen sections don’t become effective until January 2025. Importantly, they include the sections that will statutorily shield patients from criminal prosecution and administrative action for possession and use of “medicinal cannabis,” and afford them civil rights and other protections related to employment and parental custody. They also include the sections that establish the registration process for patients to obtain a medicinal cannabis “registry ID card,” which patients must have to legally buy and use medicinal cannabis. The procedures for doctors and advanced practice registered nurses (APRNs) to be deemed “medicinal cannabis practitioners” by their licensure boards are not due to be issued until next July.
In the meantime, Executive Order 2022- 798 remains in effect. This article discusses what practitioners can do now to help patients with specific medical conditions obtain medicinal cannabis, and what they will be able and required to do starting January 2025. 1 The terms “medical marijuana” and “medicinal cannabis” are interchangeable, and simply refer to marijuana used for medicinal purposes. See KRS §§ 218A.010(28) and KRS 218B.010(15). Practitioners should refer to Chapter 218B for the requirements for establishing a medicinal cannabis business in Kentucky.
Executive Order 2022-798
To be clear, the Governor’s Executive Order does not “legalize” the prescribing of medicinal cannabis in Kentucky, nor does Chapter 218B. Marijuana is not approved by the FDA for medical use and remains an illegal drug under federal law. The Executive Order does, however, allow doctors to recommend its use to patients with certain medical conditions and eliminates the fear of criminal prosecution for possessing medicinal cannabis in Kentucky through the end of 2024 provided the following requirements are met:
- The individual must have legally purchased the medicinal cannabis in another state and have written proof of the location and date of purchase to show the cannabis was lawfully obtained.
- The individual cannot possess more cannabis than legally allowed by the jurisdiction where they bought it, and in any case, not more than eight ounces.
- The individual or their caregiver has a written certification from a Kentucky licensed physician or osteopath in good standing with the Kentucky Board of Medical Licensure (KBML) or the licensure board in the patient’s state of residence showing they have one of the qualifying medical conditions – cancer, ALS, epilepsy, intractable seizures, Parkinson’s disease, multiple sclerosis, sickle cell anemia, PTSD, cachexia or wasting syndrome, neuropathies, severe arthritis, hepatitis C, fibromyalgia, intractable pain, muscular dystrophy, HIV, AIDS, glaucoma, or a terminal illness.
- The certification includes: (i) the person’s name, date of birth, address, and telephone number; (ii) the certifying provider’s name, license number, address, and telephone number; (iii) the provider’s statement that he/she has a bona fide provider-patient relationship with the individual and in his/ her professional opinion, the patient has one of the listed conditions; and (iv) the provider’s dated signature.2
In short, through December 2024, Kentucky physicians and osteopaths (but not APRNs) may only issue written certifications to patients to obtain medicinal cannabis in a jurisdiction outside Kentucky where it is currently legal.
KRS Chapter 218B
Registry ID Card
Beginning in 2025, patients must have a CHFS issued medicinal cannabis registry ID card to legally obtain and use medicinal cannabis in Kentucky.3 Patients must submit an approved application to CHFS together with a written certification issued in the last ninety days from a “medicinal cannabis practitioner” that the patient has a qualifying medical condition and may benefit from using medicinal cannabis.4 Patients with a criminal record of a disqualifying offense cannot be registered cardholders.5 The patient must pledge in the application not to “divert” medicinal cannabis to anyone not allowed to possess it under Chapter 218B. Once issued, a registry card is good for one year. The CHFS registry of cardholders will be confidential and exempt from the Kentucky Open Records Act.
Qualifying Medical Conditions
The list of qualifying medical conditions in Chapter 218B is shorter than the list in Executive Order 2022-798 but allows for the Kentucky Center for Cannabis at the University of Kentucky to add to the list as research on the use of medicinal cannabis to treat various conditions develops. For now, the list includes any type of cancer; chronic, severe, intractable or debilitating pain; epilepsy or other intractable seizure disorder; multiple sclerosis, muscle spasms/spasticity; chronic nausea/cyclical vomiting syndrome resistant to conventional medical treatment, and PTSD.
Becoming a Medicinal Cannabis Practitioner
Beginning January 1, 2025, only “medicinal cannabis practitioners” can lawfully issue the written certification qualified patients in Kentucky must have to apply for a registry ID card. Kentucky physicians, osteopaths, and APRNs authorized to prescribe controlled substances under KRS 314.042, may apply to their licensure board for authorization to be medicinal cannabis practitioner. The KBML and Kentucky Board of Nursing (KBN) are to issue regulations outlining the authorization process by July 2024. Authorizations will not be given to practitioners with an ownership or investment interest in or compensation agreement with a cannabis business licensed under Chapter 218B. Once authorized, medicinal cannabis practitioners must register as such with the Kentucky All Schedule Prescription Electronic Reporting (KASPER) system before issuing medicinal cannabis certifications.6
Written Certification Requirements
Medicinal cannabis practitioners will be required to have an established bona fide practitioner-patient relationship with the patient in order to issue a medicinal cannabis certification. The practitioner must physically examine the patient, diagnose or confirm the patient has been diagnosed with a qualifying medical condition, and consult with the patient about possible risks and side effects of using medicinal cannabis given their condition.7 The practitioner will also be required to obtain a KASPER report on the patient covering the preceding twelve months.8 The practitioner must then certify in writing to all of the above and that they believe the patient could receive therapeutic or palliative benefit from using medicinal cannabis. The practitioner will be obligated to enter each certification issued in KASPER within twenty-four hours.9
While practitioners and patients will need to meet multiple requirements to obtain medicinal cannabis under Chapter 218B, it is hoped that making this form of treatment legally available for patients with serious medical conditions and terminal illness will improve their quality of life and provide a safer alternative to addictive opioids.
Sarah Charles Wright is a corporate and healthcare law attorney with Sturgill, Turner, Barker & Moloney, PLLC. She can be reached at swright@sturgillturner.com or (859) 255-8581. This article is intended to be a summary of state or federal law and does not constitute legal advice.