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May 2020

Executive Order 2020-86 Relaxes Restriction on Telemedicine for Physicians Certifying Medical Marihuana Patients

The ill effects of the COVID-19 pandemic have touched all aspects of American commerce, and the doctor-patient relationship is no exception. Immuno-compromised patients, those with pre-existing conditions, and even the healthy are forgoing doctor visits of all kinds, likely out of fear of contracting the virus. In the first three months of this year, health care spending has fallen 18% and 1.4 million health care workers lost their jobs in April. 

Unnecessary deaths or worsening health conditions from delayed or deferred doctor or hospital visits are a growing concern in Michigan. Recognizing this issue, Michigan has relaxed laws and rules surrounding the administration of health care through telemedicine. In addition to relaxation of applicable HIPAA and insurance requirements, Executive Order 2020-86, the full text of which can be read here, authorizes and encourages all health care providers to use telehealth services when medically appropriate and upon obtaining patient consent. It also temporarily suspends one key rule applicable to the prescribing of medical marihuana (aka marijuana or cannabis) in Michigan. Michigan allows both adult use (sometimes called recreational) and medical use of marihuana.

As part of the Michigan application for a medical marihuana card, state administrative rules require a qualified patient to submit a written certification signed by a licensed physician in the course of a “bona fide physician-patient relationship” and dated within six months of the date the application is received. (See Rule 333.103(1)(B)(2)). MCL § 333.26423 (Section 3 of the Michigan Medical Marihuana Act “MMMA”) defines “Bona fide physician-patient relationship” as a treatment or counseling relationship between a physician and patient in which all of the following are present:

  • The physician has reviewed the patient’s relevant medical records and completed a full assessment of the patient’s medical history and current medical condition, including a relevant, in person, medical evaluation of the patient.
  • The physician has created and maintained records of the patient’s condition in accord with medically accepted standards.
  • The physician has a reasonable expectation that he or she will provide follow-up care to the patient to monitor the efficacy of the use of medical marihuana as a treatment of the patient’s debilitating medical condition.
  • If the patient has given permission, the physician has notified the patient’s primary care physician of the patient’s debilitating medical condition and certification for the medical use of marihuana to treat that condition.

The “in person” visit was required before the physician offered a professional opinion as to the therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s debilitating medical condition or associated symptoms debilitating medical condition. Telemedicine visits were not previously allowed for the authorization of a medical marihuana card. Given that the debilitating conditions which qualify a patient to be certified for medical marihuana in Michigan include cancer, ALS and other immune deficiency syndromes, it stands to reason that such patients are exactly the types of patients who are currently skipping in-person health care visits. 

Recognizing this problem, Michigan has temporarily eliminated the “in person” requirement. Pursuant to Executive Order 2020-86(1)(d) & (7), physicians can now certify patients with qualifying conditions to allow a Michigan patient to obtain their medical marihuana card without first having had an in-person visit with the patient. 

As it currently stands, the relaxed telemedicine standards of Executive Order 2020-86 are set to elapse when Michigan’s COVID-19 related State of Emergency ends. Given that the evaluating physician is not required to conduct an independent verification of, for instance, whether an underlying diagnosis of cancer by an oncologist was accurate, we anticipate continued interest in allowing telemedicine visits. This will particularly benefit those suffering from debilitating conditions which make travel difficult and those located in rural areas without reasonable access to health care. Should you have questions regarding this, or other cannabis legal issues, including the required COVID-19 Emergency Preparedness and Response Plans you may contact one of the attorneys listed below:

Rich Baron rbaron@fbmjlaw.com
Dan Cortez dcortez@fbmjlaw.com
Eric Nordan enordan@fbmjlaw.com
Nick Tatro ntatro@fbmjlaw.com
Ben Fruchey bfruchey@fbmjlaw.com