The legalization of medical marijuana (and recreational marijuana) presents an interesting issue to our nursing home and assisted living facility clients. While medical marijuana is now legal in Florida, it continues to be violative of federal law. Ullman Bursa Law strongly advises that companies in the senior living business should carefully and thoughtfully confer with their counsel to determine the best policy on this emerging issue.
By Tim Regan
As more older adults embrace marijuana use, senior living providers who don’t take heed of the budding trend could find themselves in legal hot water—even if they operate in states where medical and recreational cannabis use is legal.
Seattle-based Lane Powell PC, a regional law firm headquartered in Seattle, saw a noticeable uptick in senior living providers seeking advice on marijuana policies when Washington and Oregon legalized it for recreational use in 2012 and 2015.
“Oregon and Washington…we’ve had medical marijuana for years, so a lot of our providers here were used to dealing with that,” said Gabriela Sanchez, shareholder and co-chair of the firm’s senior living and long-term care team. “What’s new is the recreational piece. We do get a lot of questions about marijuana use.”
In recent years, some senior living providers have sought to navigate the legal hazards of recreational and medical marijuana, from storage to where and how seniors can use it. Still, others might be tempted to adopt a kind of don’t-ask, don’t-tell policy regarding pot use among their residents. And that’s the wrong way to do it, Sanchez said.
“It’s important for you to regulate the things you can,” she explained to Senior Housing News. “If you take a head-in-the-sand approach, you’re increasing your risk of enforcement actions.”
Pot’s growing popularity
It’s safe to say the acceptance of marijuana is on the rise in the U.S., at least in the eyes of the public. Even former Republican Speaker of the House John Boehner said his thinking on the leafy green plant “evolved” in recent years.
As of the beginning of 2018, eight states—Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington—have legalized both medical and recreational marijuana, as has Washington, D.C. On top of that, 22 states have legalized medical marijuana to date.
As laws have changed, so too has public perception, including among older adults.
A recent University of Michigan/AARP survey found that 80% of responding adults age 50 to 80 “strongly” or “somewhat” support medical marijuana use when a doctor consents. Furthermore, 18% of those surveyed said they personally know someone who uses pot for medical purposes—a possible “tipping point” for the drug.
It’s not just medical marijuana, either. A Pew Research Center survey released in January found that a whopping 56% of baby boomers favor total legalization of pot.
“What I always tell my clients is, these are all your future residents,” Sanchez said. “If you think your residents are using marijuana now, just wait until a little bit.”
Marijuana cultivators and suppliers are also taking note of this trend.
For Olive Tree Wellness Center, a medical cannabis dispensary in Ramona, California, “canna-boomers”—or baby boomers who use pot—represent a growing share of the consumer marketplace, according to Carlos Gutierrez, the dispensary’s spokesperson. Some of their favorite products at Olive Tree include vaporizer cartridges, pot capsules, infused topical creams and marijuana “flower,” which is also known as bud or leaf marijuana.
Still, senior living communities have been a “tough nut to crack” thus far, Gutierrez told SHN.
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“We know there’s a large amount of potential [clients] that live in these facilities, but they are difficult to reach because many of the corporations that run these facilities will not allow cannabis consumption for insurance purposes,” he explained. “If cannabis was federally legal and insurance was not an issue, we believe use of cannabis within these communities would skyrocket.”
In response to these trends, some forward-thinking senior living providers have even started inviting pot experts into their communities, if only to educate their residents. Last year, Louisville, Colorado-based Balfour Senior Living held a series of “Cannabis 101” lectures that drew between 50 and 100 attendees per event.
The lecture series proved so successful that Balfour is holding more of them, with the next installment occurring at Balfour at Riverfront Park in Denver on April 25.
“I think that if there continues to be education around cannabis and the stigma begins to fade, yes, there could be an increase in seniors consuming marijuana over taking prescription drugs,” Lindsay Mitchell, director of corporate communications at Balfour Senior Living, told SHN.
Legal risks and best practices
Despite the rising trend of marijuana legalization, the drug still holds many legal pitfalls for senior living providers. Chief among them is the fact that owners and operators who let residents partake could technically be subject to federal enforcement under the Controlled Substances Act (CSA), which classifies marijuana as a schedule 1 drug along with LSD, heroin and cocaine.
Nursing homes or other senior care communities that take federal dollars could be at an even greater risk. For example, allowing marijuana use could imperil a nursing home’s Medicare certification, according to a March 19 blog post Sanchez co-authored.
Those risks are lessened for private-pay communities, but they’re not nonexistent. For example, residents of Oregon California and Washington can legally grow and store marijuana in their private homes. But what happens if they reside in a senior living community?
“Let’s say you have 10 residents that use marijuana and each one brings in four mature plants. Now you’ve got 40 marijuana plants [at the community],” Sanchez noted. “If you don’t have a policy, you’re risking a significant enforcement action from the federal or state government.”
It’s risks like these that make enacting a clear pot policy necessary, including at communities that forbid the use of marijuana outright. Senior living providers should at least think about how their residents store and consume marijuana, who administers it, where marijuana consumption is allowed, and which residents can use it.
Some best practices Sanchez suggested include informing residents of marijuana policies, creating negotiated risk agreements, obtaining proof of medical marijuana cards, disallowing workers to administer or store marijuana, controlling which forms of marijuana are allowed, and providing informational brochures about safe and legal marijuana use.
Complicated as that may seem, most senior living providers likely already have some similar policies in place regarding another potentially risky substance: alcohol.
“I always tell [clients], treat it like you would alcohol consumption. It’s very analogous,” Sanchez said. “The process, the procedures, what assessments you have to take beforehand. It’s very very similar to drinking alcohol.”