While we continue to follow the recreational marijuana legalization saga and the Massachusetts Department of Public Health’s Medical Marijuana Program, our colleagues on the employment law side of the equation are monitoring decisions regarding the ability of employers to take disciplinary action against employees for using marijuana at work.  This blog post discusses an important new decision issued by the Massachusetts Supreme Judicial Court, Barbuto v. Advantage Sales and Marketing, LLC, in which the Court concluded that, under the circumstances in that case, employers must accommodate medical marijuana users in the normal course to avoid violating the state’s antidiscrimination laws when it fires an employee because of a failed drug test based on the employee’s use of medical marijuana. It’s a must read for employers grappling with this emerging area of employment law.


The Massachusetts Department of Public Health (DPH) has released for public comment proposed amendments to DPH’s Medical Marijuana Regulations (105 CMR 725) (the “regulations”).  DPH believes that the proposed amendments will streamline the Medical Use of Marijuana Program (the “Program”) by updating existing processes, providing additional clarity, and creating consistency with changes made to related laws, all with the goal of promoting patient access while assuring public safety is maintained.  At a meeting of the Public Health Council (PHC) held on September 14, 2016, DPH representatives, including Program Director Bryan Harter, MBA, LICSW, presented the proposed amendments.  DPH’s presentation to the PHC at the meeting includes a summary of the proposed amendments, as well as a brief history of the Program, including applications received, provisional Certificates of Registration to operate a Registered Marijuana Dispensary (RMD) (41), and number of RMDs currently open and dispensing marijuana for medical use (7).

Amendments are undoubtedly necessary. The current regulations, which became effective on May 24, 2013, were implemented in connection the creation of the Program, and DPH now has the benefit of experience with the RMD process to amend its regulations to reflect, in some cases, lessons learned.  As with proposed amendments to other regulations (see our prior posts here and here), these amendments are also necessary to comply with Governor Baker’s Executive Order 562, which directed all executive branch state agencies to review and, where possible, streamline, simplify and improve their regulations.  Continue Reading Medical Marijuana in Massachusetts – DPH Proposes Amendments to Regulations

The Massachusetts Department of Public Health (DPH) has released proposed amended regulations for the licensure of hospitals, clinics, and out-of-hospital dialysis units, proposed the rescission of separate birth center regulations, and proposed amended regulations for medical marijuana. At a very busy September 14, 2016 Public Health Council Meeting, senior DPH staff presented the proposed regulations, highlighting key objectives and fielding questions and comments from Council members.  Commissioner Monica Bharel, MD, MPH, commended DPH staff for their hard work on the amendments.

In the proposed facility licensing regulations, key themes across all facility types included:

  • Removing outdated regulations;
  • Updating standards to give additional flexibility while protecting patient safety and tying regulatory standards to nationally recognized, evidence-based guidelines;
  • Aligning state and federal requirements; and
  • Providing clearer timelines and guidance for initial license applications, change of ownership or location, and facility closure.

The proposed regulations and the presentations are available below, along with public hearing dates and comment deadlines.  As discussed in a recent post regarding proposed amendments to the Determination of Need Regulations, consistent with Governor Baker’s Executive Order 562, DPH is reviewing and, where possible, streamlining, simplifying and improving its regulations. These proposals are sure to generate much discussion and comment.  In the meanwhile, please stay tuned for more detailed posts on these amendments.

Topic Citation Proposed Amended Regulations DPH Presentation Public Hearing Date Comment Deadline
Hospitals 105 CMR 130.00 Link Link October 24, 9:30AM October 28
Clinics 105 CMR 140.000 Link Link October 25, 9:30AM October 28
Dialysis Units 105 CMR 145.000 Link Link October 25, 9:30AM October 28
Birth Centers 105 CMR 142.000 Link Link October 24, 9:30AM October 28
Medical Marijuana 105 CMR 725.000 Link Link

At today’s Massachusetts Public Health Council meeting, Department of Public Health Commissioner Monica Bharel, MD, MPH, announced sweeping changes to the Medical Marijuana Dispensary Program in Massachusetts. The changes follow what Dr. Bharel described as a “top to bottom” review of the application process that has been plagued with difficulties.  The revisions shift the focus of the application process from its current form, which has followed a competitive procurement model, to a licensure focus similar to other health care facilities.   The revised application process will launch on May 15, 2015, and will feature a rolling basis application process. The application review will include a sharp focus on security issues and the background of those involved in the proposed dispensary.  Dr. Bharel noted that this shift will result in a more efficient, straightforward application process and that DPH will strive to make the process more straightforward and more transparent. No regulatory changes are needed, as the changes affect DPH’s process only.

Starting today, DPH will post and update the status of dispensaries in the approval and development “pipeline,” and the number of registered and certified patients on its website.  Those applicants with pending applications will not need to reapply.  DPH will clarify the process to resubmit applications that were previously rejected.

Public Health Council member Harold Cox (Associate Dean of Public Health Practice, Boston University School of Public Health) addressed ongoing legalization efforts – marijuana is legal in four states and the District of Columbia – and suggested that DPH should be proactive in understanding what is happening in those states and how potential legalization would affect Massachusetts’ program.  Public Health Council member Dr. Michele David expressed concern regarding the packaging of marijuana edibles, particularly candy, that may look like ordinary candy to children.

The DPH press release is available here.

Written by: Rachel Irving Pitts

The Massachusetts Senate has created a Special Senate Committee on Marijuana to assess the Commonwealth’s medical marijuana implementation, to examine marijuana legalization issues in other states, and to make recommendations for the Senate regarding any legalization or ballot initiative on the subject.  Jason Lewis – a Democrat from Winchester – will chair the special committee.  Mr. Lewis also chairs the Senate-House Joint Committee on Public Health.

In an Alert highlighting the various leadership and committee appointments recently announced by the Senate, ML Strategies points out that the creation of this commission is timely, as advocates are considering whether to put a question to legalize marijuana on the 2016 ballot.

To read more about the other Leadership and Special Committee Appointments, see the full ML Strategies Alert.

Written by: Dianne Bourque and M. Daria Niewenhous

The Massachusetts Department of Public Health Public Health Council approved, by unanimous vote, final regulations for the implementation of the medical marijuana ballot initiative law that will allow qualifying patients with certain medical conditions to obtain and use marijuana for medicinal purposes. Approved on May 8, the final regulations provide an implementation framework for the new law and, among other things:

  • define debilitating medical conditions for which the use of medical marijuana is authorized;
  • define the maximum 60-day supply that a patient may legally posses (10 ounces of finished leaf product);
  • define the bone fide physician patient relationship required for a physician to certify a patient for medical marijuana use.  The regulations also prohibit a physician from certifying immediate family members;
  • adopt a framework for municipal involvement and oversight in regulating medical marijuana, provided that local regulations do not conflict with state law; and
  • revise
    the requirement that Registered Marijuana Dispensary (RMD) applicants maintain $500,000 in an escrow account to demonstrate financial viability and instead require applicants to demonstrate at least $500,000 of liquid capital available for the first RMD location, and $400,000 for additional locations under common ownership.

Although “Medical Marijuana Treatment Center” (MMTC) was the term given to these entities under the law, the Council amended the regulatory definitions to provide that MMTCs will be known as “Registered Marijuana Dispensaries” or “RMDs.”  The Council believes that this better reflects the nature of the activities taking place at these locations, which do not provide on site clinical treatment services.

The final regulations also provide that they shall not be construed to limit the scope of practice of a nurse practitioner pursuant to M.G.L. c. 112, s. 80I.  Added by Chapter 224 of the Acts of 2012 (effective November 4, 2012), Section 80I provides that, when a law or rule requires a certification by a physician, when relating to physical or mental health, that requirement may be fulfilled by a nurse practitioner.  However, Section 80I also states that it is not to be construed to expand the scope of practice of nurse practitioners. At its May 8 meeting, at least one Public Health Council member noted that the regulations, which also require that a physician have a bona fide physician patient relationship to certify that a patient qualifies to obtain marijuana for medical use, seemed unclear as to whether or not nurse practitioners can provide this certification.  DPH staff responded that its intent is to leave it to the Board of Registration in Nursing, which licenses nurse practitioners, to determine if certifying patients for medical marijuana registration is within a nurse practitioner’s scope of practice.  DPH expects the Board will take up this issue quickly.

Despite the passage of final regulations, it will be several months before RMDs are open in the state.  We will be posting additional analyses of the regulations, including information regarding the RMD application and approval process, in the coming weeks.  Meanwhile, additional information, including Medical Marijuana FAQs, and the Department of Public Health Medical Marijuana Working Group’s Memorandum to the Public Health Council can be found at the Executive Office of Health and Human Services Medical Marijuana Page.

Written by Dianne Bourque and Daria Niewenhous

Today, the Massachusetts Department of Public Health issued proposed regulations regarding the medical use of marijuana.  The proposed regulations, formally called Proposed Regulations at 105 CMR 725.000: Implementation of An Act for Humanitarian Medical Use of Marijuana (Chapter 369 of the Acts of 2012), are found on DPH’s website.  DPH’s Medical Marijuana Working Group also posted a useful Informational Briefing on the proposed regulations. Continue Reading Medical Marijuana – Massachusetts Department of Public Health Posts Proposed Regulations

Written by Dianne J. Bourque

Massachusetts voters passed a referendum question eliminating state criminal and civil penalties for the medical use of marijuana by patients with certain “debilitating medical conditions,” including cancer, glaucoma, HIV, AIDS, hepatitis C, Crohn’s disease, Parkinson’s disease, ALS, or multiple sclerosis. Under the new law, patients may obtain a written certification, from a physician with whom the patient has a bona fide physician-patient relationship, that the patient has a qualifying debilitating medical condition and would likely benefit from medical use of marijuana.  The law will allow patients to possess up to a 60-day supply of marijuana for personal medical use. The Massachusetts Department of Public Health (DPH) will decide what amount would be a 60-day supply. The law also permits a patient to designate a personal caregiver, at least 21 years old, to assist with the patient’s medical use of marijuana.  Personal caregivers will have to register with DPH and are prohibited from consuming marijuana.

Continue Reading Medical Marijuana: Weeding Through the New Massachusetts Law