Massachusetts CCC Leverages Waiver Program to Permit Telehealth Consultations for New Patients

The Cannabis Control Commission announced on March 20, 2020, that healthcare providers registered with the CCC to prescribe medical marijuana will have the option to issue prescriptions to new patients following a telehealth consultation.  This new guidance is a departure from the CCC’s regulations, which require patients to be physically present for a clinical visit in order to receive a prescription.  See 935 CMR 501.0101(7).  To begin conducting consultations via telehealth rather than in person, providers must submit a waiver request form to the Commission and receive the Commission’s approval.

The telehealth guidance is the third in a series of bulletins issued by the CCC in response to the ongoing and rapidly developing COVID-19 outbreak.  On March 13, 2020, the Commission “urge[d] licensees to consider appropriate mitigating measures to ensure, preserve, and promote public health,” such as “ manag[ing] lines and queues, the utilization of mobile or order-ahead features that may reduce the risk of exposure, considering appointment-only operations, and the increased frequency of cleaning and sterilization efforts.”  The Commission also encouraged MTCs that offer patient delivery to expand their services and to remind patients that they can acquire up to a 60-day supply to reduce the frequency of ordering.  On March 18, 2020, the CCC supplemented its earlier bulletin by “directing” licensees to take the measures it had previously “urged” and by reminding colocated facilities of their responsibility to maintain a sufficient supply of medical marijuana.

The CCC’s bulletins come as Governor Baker has issued emergency orders limiting public gatherings and the abilities for bars and restaurants to serve food and beverages for on-premises consumption.  As of this writing, the Governor has not yet issued a shelter-at-home order, though California, Illinois, Connecticut, New York, and New Jersey have such orders in place.  Such orders allow essential businesses to remain open, and while the situation is rapidly evolving, cannabis business have been allowed to remain open and regulators have generally loosened operational restrictions to encourage curbside pickup and expanded use of advance ordering and delivery.

We view the Commission’s telehealth bulletin as a positive measure to reduce unnecessary face-to-face interactions between doctors and patients and to potentially reduce burdens on doctors who may face tremendous difficulties trying to balance their normal patient loads with an influx of COVID-19 cases.

We encourage the Commission to facilitate an expansion of its waiver program during this crisis.  If a business can show that it can continue to safely and effectively provide services to patients and customers while reducing or eliminating face-to-face interactions, the Commission should allow the business to: (a) detail its plans; and (b) identify conflicting regulations that would need to be waived to carry out the plans.

The Commission can take four steps to encourage use of the waiver program during the COVID-19 crisis:

  1. Issue a bulletin encouraging licensees to utilize the waiver process if the licensee believes it can reduce face-to-face interactions while continuing to provide services.
  2. Announce that the Commission will expedite review of Waiver Request Forms designed to reduce face-to-face interactions.
  3. Eliminate the current rule that requires licensees to submit a separate Waiver Request Form for each regulation that needs to be waived. If an operational change would require the waiver of multiple regulations, they should all be addressed in a single Form.
  4. Waive the requirement that the Form needs to be notarized, as obtaining notary services could be difficult during this time.

Permitting waivers of regulations, where safe and appropriate, could lead to higher employment numbers, increased provision of service, and reduced reliance on the black market than would otherwise occur.  It is precisely this type of regulatory innovation that the industry needs during this time of crisis.

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