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Memo

 

P.O. Box 30650

7109 W. Saginaw, 2nd Fl.

 

Lansing, MI 48909

 

www.michigan.gov

 

 

 

Bureau of Children and Adult Licensing

 

 

 

 

STATE OF MICHIGAN

Department of

 

Human

 

Services

 

 

To: Adult Foster Care and Home for the Aged Division Licensing Staff

Michigan Assisted Living Association

 

Michigan Center for Assisted Living

 

Aging Services of Michigan

 

 

Date: July 1, 2010

From: Deborah Wood, Division Director

Adult Foster Care and Home for the Aged Licensing

 

Subject: Impact of Michigan Medical Marihuana Program on

Adult Foster Care and Home for the Aged Facilities

 

 

 

 

 

In response to the many inquiries received regarding the implications of the Michigan Medical Marihuana Program (MMMP), the following summarizes directions applicable to adult foster care (AFC) and home for the aged (HFA) facilities. I also encourage you to review the Michigan Medical Marihuana Act of 2008; MCL 333.26421-333.26430 and Michigan Department of Community Health (DCH) administrative rules 333.101-333.133.

 

 

According to MCL 333.26422, the national Academy of Sciences’ Institute of Medicine in a March 1999 report, discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions. Additionally, data from the FBI Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, it was determined that changing state law would have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana. Although federal law currently prohibits any use of marihuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. The laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon, Vermont, Rhode Island, and Washington do not penalize the medical use and cultivation of marihuana. Michigan joined this effort for the health and welfare of its citizens.

 

 

The MMMP was initiated following enactment of the Michigan Medical Marihuana Act of 2008 on December 4, 2008. Though it is legal to grow marihuana within limits for medicinal purposes, there are no described means to begin the growth of the marihuana and further no means to prevent federal prosecution for the user or grower.

 

 

Under the Michigan Medical Marihuana Act a physician cannot be prosecuted for discussing or recommending the use of marihuana. The person who is registered is allowed to possess not more than 2.5 ounces of usable marihuana. The person or their designated caregiver is allowed to grow 12 plants in an enclosed, locked area.

 

 

Any registered patient or registered primary caregiver selling marihuana to someone who is not allowed to use marihuana for medical purposes, shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more then two years or a fine of $2,000 or both.

 

 

The Michigan Department of Community Health is responsible for registering patients and caregivers for the MMMP. The website for this program is www.michigan.gov/mmp. Please keep in mind that the Michigan Medical Marihuana Act does not give enforcement authority to the Department of Human Services even though the department has enforcement authority over the licensing and regulation of adult foster care and home for the aged facilities.

 

 

The person registering must:

 

1. Be a Michigan resident.

 

2. Complete and submit the application and fee for registration for the MMMP. [The Michigan Medical Marihuana Act states that “if the department fails to issue a valid registry identification card in response to a valid application or renewal within 20 days of its submission, the registry identification card shall be deemed granted and a copy of the registry identification application or renewal shall be deemed a valid registry identification card.” (MCL 333.26429)]

 

3. Suffer from a debilitating medical condition as listed on their physician’s statement.

 

4. Have a recommending physician who has a Michigan MD or DO license.

 

 

Once registered the person may:

 

1. Be in possession of and grow their marihuana, within limits.

 

2. Have their designated and registered caregiver grow their marihuana for them.

 

 

The MMMP cannot:

 

Refer the person to a physician.

Notify a physician of a change in caregiver.

Refer anyone to act as a caregiver.

Speak to anyone but the patient.

Supply a registered person with marihuana seeds or a starter kit.

Protect marihuana plants from seizure or individuals from prosecution if the federal government chooses to take action against patients or caregivers under the federal Controlled Substances Act.

 

 

 

The following are questions forwarded to me regarding the medical use of marihuana in our licensed facilities:

 

 

Question: How is this medical marihuana medication to be used/administered in an adult foster care home or home for the aged?

 

 

Answer: MCL 333.26424(2) (i) provides: A person shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for being in the presence or vicinity of the medical use of marihuana in accordance with this act, or for assisting a registered qualifying patient with using or administering marihuana.”

 

 

It is not a requirement that a licensee accept a resident that is recommended medical marihuana even if registered in the MMMP.

 

 

A licensee considering admission or retention of a resident that is registered in the MMMP should consider including in their admission and discharge policy that “a resident registered in the MMMP, who violates the program requirements, may be discharged.”

 

 

A licensee may also choose to indicate in their admission policy that they do not allow the use of medical marihuana in their facility and that its use could be grounds for a 30-day discharge notice.

 

 

If the licensee decides to allow a resident’s medical use of marihuana in their home, they need to confirm that the resident has a MMMP “registry identification card” or verification that he/she has applied for the program. (MCL 333. 26429) A copy of the resident’s “registry identification card” should be maintained in the resident’s file.

 

 

A registered person cannot have more than 2.5 ounces of usable marihuana in his/her possession. (MCL 333.26424) Therefore, a resident could have marihuana in his room, if registered. However, when it is not in use, the marihuana needs to be stored in a locked container. A registered person can also grow up to 12 marihuana plants, but they must be stored in a locked area. Use of medical marihuana by a resident must also be fully described in the resident’s assessment/service plan.

 

 

Since medical marihuana is not a prescribed medication, the licensee should consider addressing its use in the facility’s home rules, such as “any medication (including medical marihuana) being utilized by a resident shall be stored in a locked container when not in use.”

 

 

QUESTION: Can a resident grow medical marihuana in an AFC/HFA?

 

 

ANSWER: If the licensee agrees and the resident is a registered medical marihuana user, yes a resident could grow medical marihuana in an AFC/HFA home, if it is contained in a locked area, and the resident complies with all MMMP requirements.

 

 

QUESTION: Can a licensee or a staff person grow and provide medical marihuana to a resident who is a registered medical marihuana user?

 

 

ANSWER: MCL 333.26326(6) (d) provides: “The department shall issue a registry identification card to the primary caregiver, if any; who is named in a qualifying patient’s approved application; provided that each qualifying patient can have no more then 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.”

 

 

If the licensee agrees to this arrangement, yes they can as long as they have a registry identification card, they are a designated “primary caregiver”, and they comply with the rules governing the growing of medical marihuana. A registered medical marihuana primary caregiver can not have in their possession more than 2.5 ounces and/or 12 plants per person and can not be a registered designated primary caregiver to more than 5 registered medical marihuana users. According to MCL 333.26424(2) (e), “a registered primary caregiver may receive compensation for costs associated with assisting a registered qualifying patient in the medical use of marihuana. Any such compensation shall not constitute the sale of controlled substances.”

 

 

Question: Is medical marihuana a tobacco product?

 

 

Answer: Medical marihuana is not a tobacco product. It therefore does not fall under the requirements of the smoking ban law.

 

 

Question: Staff must monitor medical marihuana, obviously, but do staff and other residents run the 'risk' of also being exposed to the medicinal effects?

 

 

Answer: As with any medication, prescription or non-prescription, the licensee is responsible for assuring the safety of residents at all times.

 

 

Medical marihuana is not a tobacco product; therefore, it could be smoked in a well ventilated private room or outside to avoid the risks of second-hand smoke. Marihuana also can be ingested and put in food as another means for administration, or administered via a vaporizer or as an oil. If a licensee decides to allow the smoking of medical marihuana, it will then be each licensee’s responsibility to determine how the registered medical marihuana user can access this medication in a safe manner while also protecting other residents and staff from the marihuana’s second-hand smoke.

 

 

Additionally, the licensee will need to keep in mind that the Michigan Medical Marihuana Act states that the medical marihuana user cannot smoke marihuana in any public place or on any form of public transportation. MCL 333.26427(3) (b). DCH administrative rule 333.101(16) states, “public place means a place open to the public.”

 

 

The licensee also needs to be aware that this law is being tested in the courts and, therefore, is the licensee’s responsibility to assure not only safe use, but also the resident’s compliance with the Michigan Medical Marihuana Act and the MMMP rules.

 

 

 

Question: Is medical marihuana a prescribed medication?

 

 

Answer: No, it is not a prescribed medication. The resident’s Michigan licensed physician must submit a “written certification” recommending use of medical marihuana, indicating the reasoning for the recommendation. The certification must include the resident’s debilitating diagnosis and how the resident will benefit from medical marihuana. (MCL 333.26428) The proposed medical marihuana user is required to submit this written certification to the Department of Community Health to register. Based on these criteria, for AFC/HFA licensing purposes, the doctor is recommending it and, therefore, we would require it to be provided, if the resident is registered and the licensee agrees to allow its use in the licensed facility. The licensee should maintain a copy of the registry identification card, in the resident’s file.

 

 

QUESTION: How does the smoking ban legislation impact the medical use of marihuana by residents?

 

 

ANSWER: The smoking ban only applies to tobacco products; marihuana is not a tobacco product and, therefore, does not fall under the requirements of the smoking ban law.

 

 

QUESTION: Are there any circumstances under which the medical use of marihuana by a resident would be prohibited within an adult foster care home or home for the aged?

 

 

ANSWER: Yes. A licensee is not required to accept for admission or retain residents who use medical marihuana. Their admission/discharge policies and program statements should reflect the same and include that its use could be considered a basis for a 30-day discharge. However, if it is recommended by a resident’s doctor, use would have to be allowed until discharged.

 

 

QUESTION: At least one licensing consultant has informed a licensee that medical marihuana falls under house smoking policies. Our perspective is that medical marihuana should generally be treated as medication including the need for secure and proper storage onsite. Has BCAL adopted a position on this issue?

 

 

ANSWER: If a facility has house policies governing smoking in general, and they intend to accept residents who smoke marihuana for medicinal purposes, the smoking policy should address any expectations or requirements regarding its use.

 

 

QUESTION: Do you have any other thoughts to share related to the medical use of marihuana and the licensing regulations?

 

 

ANSWER: As in all cases, it is the licensee’s responsibility to comply with doctor recommendations while also assuring the protection of all residents at all times. The licensee, therefore, has much to think about, should they decide to allow the use of medical marihuana in their licensed facility. Minimally, they need to take into consideration the following AFC group home rules or comparable AFC family home or HFA rules: 400.14201(3)(g)(9)©(10); 400.14204(2)(a)(3)(d); 400.14301(2)(a-c)(4); 400.14302(1-4); 400.303(2); 400.305(3); 400.14310(1)(d); 400.14312(1).

 

 

The licensee should additionally make themselves familiar with the Michigan Medical Marihuana Law, MCL 333.26421-333.26430 and MMMP administrative rules 333.101- 333.133. Enforcement of these administrative rules falls under the authority of the DCH.

 

 

 

NOTICE: This memorandum has been submitted to the Office of Attorney General for review. Further notice will be provided to all AFC/HFA licensing staff should different direction be received from the Office of Attorney General.

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Guest Wayne

However, when it is not in use, the marihuana needs to be stored in a locked container.

 

never heard of this befor is this right?

Not in accordance with the law or rules. However, if we as a community want to nurture acceptance then we need to understand this is a private contract between the licensee of an AFC home and the individual. Reasonable private agreements to assure the safety of fellow residents and to avoid some beuarocrat from nit-picking "safe environment" issues, we may just want to keep our noses out of it and leave it to those entering into these agreements. If a violation of the law or discriminatory practices is taken against an applicant we have laws to protect those rights but they must be addressed by those discriminated against. Something this community could provide support for.

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