Medical marijuana has a history of usage for chronic pain and other ailments, and with its legalization in Colorado, many residents—including seniors living in assisted living and skilled nursing facilities—use marijuana to treat a variety of conditions. However, when it comes to senior living and medical marijuana, there are several considerations nursing home and assisted living administrators need to take into account.

While the legalization of medical marijuana in 2000 and recreational marijuana in 2012 in Colorado has authorized usage at the state level, a crucial consideration is that marijuana is still included as a Schedule 1 drug at the federal level.

This means under federal law, it is illegal to manufacture, use or possess marijuana, and the drug is not considered to have an acceptable medical use. Heroin, LSD and ecstasy are also Schedule 1 drugs as classified by the Controlled Substances Act.

While the United States Department of Justice has issued a handful of memoranda—including the Ogden Memorandum in 2009 and a later one in 2013—that suggest prosecuting individuals for CSA violations when compliant with state law isn’t a priority, other federal agencies have maintained opposition to the legalization of medical marijuana, including the Drug Enforcement Administration and the U.S. Department of Housing and Urban Development.

As recipients of federal health care programs, nursing homes have their own matters of concern to take into account, including Medicare and Medicaid requirements and the risk of exclusion from these programs, which provide payment for a significant number of nursing home residents.

Because the U.S. Department of Health and Human Services and the Centers for Medicare & Medicaid Services have yet to provide guidance, there is not a clear stance to take on the matter, leaving it to providers to determine their facility’s policy.

As media outlets have found, senior living providers in Colorado have responded differently to the matter, with some determining to allow residents to use and store their own medical marijuana while others have created a zero-tolerance policy.

Other matters providers need to consider include:

  • State licensing requirements
  • Lease and finance terms
  • Zoning and nuisance laws

There are also legal issues related to risk management, including safe storage and administration, the method of administration and the risk of diversion in which a resident could sell their legally acquired medical marijuana to someone who is not permitted to use medical marijuana.

Until further guidance emerges, providers considering their medical marijuana policy should use caution and consult a health care attorney for advice on Colorado’s laws related to marijuana usage, federal laws and the risks involved in permitting medical marijuana in a nursing home or assisted living facility.

Kristin Edgar can be contacted at 303-443-8010 or kedgar@celaw.com.