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Marijuana Reclassification and APRN/PA Prescribing

Client Alert
May 7, 2024

Overview

Marijuana is expected to be reclassified by the Drug Enforcement Administration (DEA) from a Schedule I controlled substance to a Schedule III controlled substance as a result of efforts by the Biden administration.

Schedule I controlled substances are defined under the Controlled Substances Act as having a high potential for abuse, no currently accepted medical use in treatment in the U.S., and a lack of accepted safety for use of the drug under medical supervision. By contrast, Schedule III substances are defined as having a potential for abuse less than drugs in Schedules I and II, have a currently accepted medical use in treatment in the U.S., and abuse of the drug may lead to moderate or low physical dependence or high psychological dependence.[1]

Effect on APRN and PA Prescribing in Ohio

Providers, including advanced practice registered nurses (APRNs) and physician assistants (PAs) are not permitted to prescribe Schedule I controlled substances. Therefore, neither APRNs nor PAs in Ohio are permitted to prescribe marijuana to patients while still classified as a Schedule I controlled substance.

However, both APRNs and PAs are permitted to prescribe Schedule III controlled substances, so long as the medication is within the provider’s scope of practice. For APRNs, this means that the prescription is used to treat conditions consistent with their education, clinical experience, and national certification, and within the parameters of their standard care arrangement with a physician who is practicing in a specialty that is the same or similar to theirs.[2] The drug also cannot exceed the prescriptive authority of their collaborating physician.[3] Similarly, PAs with prescriptive authority are limited to prescribing drugs that are a part of their supervising physician’s normal course of practice and expertise and do not exceed their supervising physician’s prescriptive authority.[4] The prescription also should be consistent with the terms of their supervision agreement.

Analysis

While the reclassification of marijuana from Schedule I to III should allow for APRNs and PAs to prescribe marijuana, Ohio Revised Code Chapter 3796 may still stand in the way.

Specifically, the rule currently states that when a patient or their caregiver is seeking to use medical marijuana, “the physician who holds a certificate to recommend issued by the state medical board and is treating the patient or the physician's delegate shall submit the application on the patient's or caregiver's behalf…”[5]

“Physician” under Chapter 3796 is defined as, “an individual authorized under Chapter 4731 of the Revised Code to practice medicine and surgery or osteopathic medicine and surgery,” thus explicitly excluding APRNs and PAs.

Therefore, upon reclassification of marijuana, the question will be whether Ohio law also changes, doing away with the “certificate to recommend,” since providers will now be able to directly prescribe marijuana for their patients. Currently, the certificate to recommend allows patients with qualifying medical conditions to legally purchase and use marijuana.

If you have any questions regarding the pending reclassification of marijuana or general questions regarding APRNs or PAs, please don’t hesitate to contact BMD Health Law Group Member Jeana Singleton at jmsingleton@bmdllc.com or 330-253-2001, or BMD Attorney Rachel Stermer at rcstermer@bmdllc.com or 330-253-2019.  

[1] 21 U.S.C. § 812.

[2] ORC § 4723.431.

[3] ORC § 4723.481.

[4] ORC § 4730.20 and ORC § 4730.42.

[5] ORC § 3796.08.

Medical MarijuanaControlled SubstancesMarijuana LawHealth LawHealthcare Policy
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