Recently an ARRM member raised a question regarding medical marijuana in an AFC/CRS program. This question has been raised in the past. Although in this case the county involved felt the issue was only with dispensing the medical marijuana, the issue may include having the medical marijuana on site where federal funds are used to provide services. Below is the information ARRM received most recently. The strongest piece of advice to ARRM members is to obtain legal advice when making decisions in this area.
Information from DHS Licensing
The Centers for Medicare and Medicaid Services (CMS) has said federal law prohibits federally certified providers from dispensing medical marijuana, because marijuana is classified as a Schedule One controlled substance and that classification renders the manufacture, distribution, or possession of marijuana a criminal offense. These providers may be at risk of federal action, such as losing federal reimbursement for allowing residents to use medical cannabis. The U.S. Department of Justice (DOJ) also issued a memo in August 2013 (the Cole memo) which states there is no guarantee, safe harbor, or immunity of any kind, and federal authorities have every authority to prosecute marijuana offenses.
Whether federal authorities would actually pursue enforcement action against a provider when a state has authorized medical cannabis is unclear, so the actual risk to a provider is unclear. Regardless, in light of this position from CMS about federally certified providers, and the DOJ Cole memo, we believe the same analysis holds true for DHS-licensed providers receiving Medicaid waiver funds.
Seek legal advice
All DHS-licensed providers who receive Medicaid funding for services they provide are strongly encouraged to obtain legal advice about the impact of state law authorizing the use of medical cannabis by an individual on the provider’s federal funding and compliance with other federal laws that are obligated to follow. This information contained in this article is not legal advice, and should not be relied upon as legal advice. Readers are directed to consult with a lawyer of their own choosing for legal advice.