Current State of Medical Cannabis in Virginia

What changes to Virginia’s medical cannabis laws come into effect on July 1, 2021?

Prior to July 1, 2021 qualified practitioners in Virginia were able to issue a “certification” for cannabis oil products.  As of July 1, 2021, these practitioners may also issue certifications for botanical preparations of cannabis.[1]  Once the practitioner provides the patient with the certification, the patient can use that certification to register with the Board of Pharmacy, which issues the patient a medical cannabis card.[2] [3]The card enables the patient to obtain approved cannabis products from one of the state’s medical cannabis dispensaries.[4]  Other  legal prohibitions and requirements of Virginia law in effect prior to July 1, 2021 remain intact, including prohibitions on prescribing, ordering, selling or giving away cannabis products to patients.  Cannabis and cannabis products also remain illegal under federal law.

What does Virginia law require of a practitioner who would like to issue a certification for cannabis products?

There are numerous legal requirements and prerequisites which practitioners must strictly comply with prior to providing a cannabis certification for a patient.  The highlights are below, but we also recommend that any practitioner considering this process review them in their entirety in Code of Virginia Section 54.1-3408.3 and in the Virginia Administrative Code, 18 VAC110-60-30, et seq.  The Trust is also available to answer questions, review documentation and discuss these requirements with you.

From Code of Virginia Section 54.1-3408.3:

  • A practitioner in the course of his professional practice may issue a written certification for the use of cannabis products for treatment or to alleviate the symptoms of any diagnosed condition or disease determined by the practitioner to benefit from such use.
  • The practitioner shall use his professional judgment to determine the manner and frequency of patient care and evaluation and may employ the use of telemedicine, provided that the use of telemedicine includes the delivery of patient care through real-time interactive audio-visual technology.
  • A practitioner can certify for cannabis for a minor if a practitioner determines it is consistent with the standard of care.
  • The written certification shall be on a form provided by the Office of the Executive Secretary of the Supreme Court developed in consultation with the Board of Medicine.
  • Certifications expire no later than one year after issuance unless the practitioner provides in such written certification an earlier expiration.
  • A practitioner who issues a written certification to a patient pursuant to this section shall register with the Board and shall hold sufficient education and training to exercise appropriate professional judgment in the certification of patients.
  • The Board shall not limit the number of patients to whom a practitioner may issue a written certification [but] [t]he Board may report information to the applicable licensing board on unusual patterns of certifications issued by a practitioner.

From the Virginia Administrative Code Regulations, 18VAC110-60-30, et seq.[5],[6] [7]

  • Prior to issuing a certification for cannabis oil for any diagnosed condition or disease, the practitioner … shall submit an application and fee … and shall be registered with the board [of Pharmacy].

A practitioner issuing a certification is required to do the following [*be sure to document for your own protection]:

  • Conduct an assessment and evaluation of the patient in order to develop a treatment plan for the patient, which shall include an examination of the patient and the patient’s medical history, prescription history, and current medical condition;
  • Diagnose the patient;
  • Be of the opinion that the potential benefits of cannabis oil would likely outweigh the health risks of such use to the qualifying patient;
  • Explain proper administration and the potential risks and benefits of the cannabis oil to the qualifying patient and, if the qualifying patient lacks legal capacity, to a parent or legal guardian prior to issuing the written certification;
  • Be available or ensure that another practitioner is available to provide follow-up care and treatment to the qualifying patient, including physical examinations, to determine the efficacy of cannabis oil for treating the diagnosed condition or disease;
  • Access the Virginia Prescription Monitoring Program of the Department of Health Professions for the purpose of determining which, if any, covered substances have been dispensed to the patient; and
  • The practitioner shall provide instructions for the use of cannabis oil to the patient, parent, or guardian, as applicable, and shall also securely transmit such instructions to the permitted pharmaceutical processor.

There are numerous “don’ts” for providers to be aware of:

A provider shall not:

  • Delegate the responsibility of diagnosing a patient or determining whether a patient should be issued a certification.
    • Employees under the direct supervision of the practitioner may assist with preparing a certification, so long as the final certification is approved and signed by the practitioner before it is issued to the patient.
  • Directly or indirectly accept, solicit, or receive anything of value from any person associated with a pharmaceutical processor or provider of paraphernalia, excluding information on products or educational materials on the benefits and risks of cannabis oil;
  • Offer a discount or any other thing of value to a qualifying patient, parent, or guardian based on the patient’s agreement or decision to use a particular pharmaceutical processor or cannabis oil product;
  • Examine a qualifying patient for purposes of diagnosing the condition or disease at a location where cannabis oil is dispensed or produced;
  • Directly or indirectly benefit from a patient obtaining a certification. Such prohibition shall not prohibit a practitioner from charging an appropriate fee for the patient visit;
  • Have a direct or indirect financial interest (including through a co-worker, employee, spouse, parent or child) in a pharmaceutical processor or any other entity that may benefit from a qualifying patient’s acquisition, purchase, or use of cannabis oil, including any formal or informal agreement whereby a pharmaceutical processor or other person provides compensation if the practitioner issues a certification for a qualifying patient or steers a qualifying patient to a specific pharmaceutical processor or cannabis oil product;
  • Issue a certification for himself or for family members, employees, or coworkers; or
  • Provide product samples containing cannabis oil other than those approved by the U.S. Food and Drug Administration.

Looking ahead

Until the federal government decriminalizes marijuana and removes it as a Schedule I drug, providers will not be able to legally write a prescription for it, which is presumably why Virginia created the “certification” process.  We do not have an expected timeline for this to happen but even with the proliferation of “medical marijuana” laws across the United States, we are not aware of any active enforcement of federal law in this area.

Outside of “medical marijuana,” other cannabis laws in Virginia are changing, and as of July 1, 2021, Virginians 21 or older are permitted to possess up to one ounce of botanical cannabis. They will also be permitted to personally cultivate up to four cannabis plants per household at their primary residence. Yet ambiguity remains regarding the legality of other forms of cannabis (e.g., edibles and oils) for recreational use, which the incipient Virginia Cannabis Control Authority will work to address. Moreover, numerous prohibitions—including those on public consumption, recreational sales or purchases, and gifting schemes—are currently set to remain in place until at least January 1, 2024. On that date, commercial sale of personal and recreational use of botanical cannabis will become legal, albeit with certain restrictions; however, based on the recent history of legislation related to cannabis, and as society learns more about its benefits and risks, it is very possible, if not likely, that more legal changes are forthcoming.

Please contact Piedmont Liability Trust at (434) 296-2100 for more information or with any other questions or concerns.

[1] HB 2218 and SB 1333 (duplicate bills) signed by Governor Northam on March 20, 2021 and effective July 1, 2021 amended Virginia’s medical cannabis access law to incorporate a wider range of cannabis products.[1],[1] Previously, only non-herbal formulations such as oils, edibles, tinctures, lozenges, etc. could be legally certified by practitioners.

[2] Patient registration with the Board of Pharmacy typically takes 7-10 days.

[3] As of July 1, 2021, the Board no longer places a limit on the number of patients to whom a practitioner may issue a written certification (previously a limit of 600 annual certifications was imposed).

[4] There are currently 4 dispensaries operating in the state, with more expected to open in the coming months: https://www.vanorml.org/dispensaries.

[5] Among the most common conditions for which medical cannabis is certified are anxiety, cancer, Crohn’s Disease, Fibromyalgia, Glaucoma, Multiple Sclerosis, and Parkinson’s Disease.

[6] Certified doses of cannabis oil products are limited a maximum of 10 mg of THC per dose, and no more than a 90-day supply of medical cannabis is permitted to be certified.

[7] Practitioners must renew their registration annually.  Visit https://www.dhp.virginia.gov/pharmacy/PharmaceuticalProcessing/Patients.htm for more information.