The ancillary corporations that present items and providers to the hashish trade are legion. From tools, actual property, authorized providers, and know-how to packaging, labeling, mental property, {hardware}, and attire, the listing is mainly limitless for the alternatives that abound within the hashish ancillary sector. One of many cooler ancillary areas that hasn’t gotten a ton of play is the cross part of telehealth and medical hashish, particularly the place medical hashish has overwhelmingly been deemed a vital service throughout COVID.

Identical to state hashish laws, telehealth laws range by state. Telehealth (often known as telemedicine) is “. . . the distribution of  health-related providers and data through digital data and telecommunication applied sciences.” The usage of telehealth has seen a considerable uptick throughout the pandemic. And securing hashish suggestions from physicians through telehealth apps or platforms isn’t any exception. In fact, giving and securing a suggestion on this method comes with some caveats. On this publish, I focus particularly on California’s present relationship with telehealth and hashish, which has fortunately advanced.

Telehealth compliance in California is ruled by, amongst different issues, Business & Professions Code, Section 2290.5. The Medical Board of California (“MBC”) additionally offers comprehensive guidance relating to telehealth in addition to steerage on physicians recommending cannabis for his or her sufferers. Particularly, MBC steerage on hashish and telehealth offers that “[t]he use of telehealth in compliance with B&P Code part 2290.5, and utilized in a fashion per the usual of care is permissible.” Does this imply then that California physicians can begin utilizing telehealth to nearly dole out hashish suggestion after suggestion? Undoubtedly not. Let’s begin with the hashish aspect of issues.

Proposition 215 (aka Health and Safety Code Section 11362.5), handed in 1996, permits certified sufferers to accumulate and use hashish for particular medical wants through suggestions from their treating doctor (hashish can’t be prescribed as a result of it’s a federally unlawful, Schedule I managed substance). In accordance with the MBC:

physicians ought to doc that an acceptable physician-patient relationship has been established, previous to offering a suggestion, attestation, or authorization for hashish to the affected person. Per the prevailing normal of care, physicians shouldn’t suggest, attest, or in any other case authorize hashish for themselves or relations.

Additional, pursuant to Business and Professions Code section 2525.2, a doctor can’t suggest hashish for medical functions to a affected person until the doctor is the affected person’s attending doctor, and “attending doctor” means a “doctor who has taken duty for a side of the medical care, therapy, prognosis, counseling, or referral of a affected person.”

The doctor should additionally conduct and doc a medical examination of the affected person earlier than deciding whether or not or not medical hashish is suitable for suggestion. At minimal, per the MBC, that bodily examination (which possibly may very well be accomplished now remotely due to COVID) ought to embrace:

the affected person’s historical past of current sickness; social historical past; previous medical and surgical historical past; alcohol and substance use historical past; household historical past with emphasis on habit, psychotic problems, or psychological sickness; documentation of therapies with insufficient response; and prognosis requiring the hashish suggestion.

Business and Professions Code section 2525.3 states that physicians recommending hashish to a affected person for a medical function with out an acceptable prior examination and a medical indication, constitutes unprofessional conduct. And all of that is within the context of a doctor exercising the suitable normal of care, which additionally contains, amongst different issues, sustaining a therapy plan, ongoing monitoring of the affected person, and compliant recordkeeping.

So, how can a hashish telehealth enterprise make the most of Prop. 215?

There are two forms of telehealth enterprise fashions in play. Synchronous (use of video conferencing or a telemedicine app or platform to recreate an in-person expertise) and asynchronous (the place there’s no digital interplay between doctor and affected person, however the affected person offers all of their medical data through an app or tech platform to be reviewed later by their treating doctor). Usually, a 3rd celebration firm (made up of non-physicians) offers the app or tech platform whereas the physicians that make the most of the platform deal with sufferers accordingly. After we get inquiries from telehealth corporations round hashish suggestions in California, they wish to know whether or not it may be accomplished within the first place (“sure”), and whether or not they can have a monetary relationship with a dispensary or different hashish licensee that may present hashish to these sufferers accessing their app or tech platform.

And that’s the place issues get fascinating. In my subsequent publish, I’ll analyze whether or not a telehealth firm can lawfully have such a arrange in California. So, keep tuned.