Federal disability law does not cover medical marijuana patients

Medical marijuana patients are not protected under the Americans with Disabilities Act, the 9th U.S. Circuit Court of Appeals has ruled in a legal challenge pitting disabled California patients against local governments.

A panel of the appeals court threw out the patients’ lawsuit, which had charged that some California cities were violating the ADA by shuttering medical marijuana dispensaries. The ADA guarantees equal opportunity for disabled persons in employment, public accommodations, transportation and government services.

The court sympathized with the disabled residents but said federal law does not include protections for users of an illegal drug.

“We recognize that the plaintiffs are gravely ill and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity,” the court panel said in its May 21 opinion. “We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines illegal drug use by reference to federal rather than state law, and federal law does not authorize the plaintiffs’ medical marijuana use.”

The court decision is one of several in recent months examining the scope of state medical marijuana laws. An Arizona court, for example, ruled in May that dispensaries must have a doctor as a medical director to operate. The medical director cannot be the same doctor who provides marijuana certifications to patients, the court said. In another case, the California Supreme Court affirmed a lower court’s decision that said residents seeking medical cannabis do not have to grow the plants themselves. The legal challenge was brought by California Attorney General Kamala Harris, who argued that cannabis users had to contribute in some way to cultivation to be protected by state law.

The court rulings illustrate the continuing conflict between states that have adopted medical marijuana laws and federal prohibitions against the drug, said Allen St. Pierre, executive director of NORML, an organization that advocates the legalization of marijuana and tracks state legal challenges over cannabis. Federal law classifies marijuana as a Schedule I drug, which has no approved medical uses.

The decisions “acknowledge the overall friction” between the federal government and states that enact such laws, St. Pierre said. That friction “sets up a background where states are caught between a rock and a hard place.”

In the Arizona case, medical marijuana advocates had requested that a court overturn state restrictions mandating that dispensaries have doctors to run the facilities, saying the rule was overly restrictive. However, Superior Court of Arizona, Maricopa County Judge Richard Gama said the restriction had been detailed plainly when the law went into effect and that the plaintiffs waited too long to challenge the rule.

Having a doctor manage medical marijuana dispensaries helps prevent drug abuse and ensures that the facilities are running properly, said Will Humble, MPH, director of the Arizona Dept. of Health Services. A medical director must have an active license and be a medical doctor, a doctor of osteopathic medicine, a homeopathic medical specialist or a naturopathic medical specialist.

“We wanted to make sure that the dispensaries were acting in the best interest of the patients and not just moving product,” he said. “I wanted to have someone there with some skin in the game. Physicians have invested time, energy and money into their licenses. They have something to lose if something unprofessional” occurs.

Humble noted that the state has lost another challenge related to Arizona’s 2010 medical marijuana statute. In that case, a court blocked the state from restricting dispensary applicants based on past bankruptcies or on missed child support or tax payments.

At this article’s deadline, Compassion First, a plaintiff in the Arizona case, had not returned a call seeking comment. In the California case, both parties had not returned messages seeking comment by this article’s deadline.

More states may legalize

At least 17 states have laws that legalize medical marijuana use. Massachusetts and North Dakota voters will decide on similar initiatives this year, while residents in Colorado and Washington state will vote on the general issue of marijuana legalization. Most recently, Connecticut enacted a law allowing for the use of medical marijuana. The bill awaits a signature from Gov. Dannel P. Malloy.

Meanwhile, a group of governors is continuing to push the federal government to reclassify marijuana so that the drug is more widely accepted for medical treatment. At least five governors have signed a petition asking the U.S. Drug Enforcement Administration to conduct a new scientific review of cannabis research. In addition, the California Medical Assn. adopted policy in 2011 supporting the drug’s legalization. Physicians need better research on the drug to counsel patients better, which is not possible under the current federal prohibitions, CMA President James T. Hay, MD, said.

The DEA continues to consider the requests.