Nevada Attorney General: Use of Medical Marijuana for Terminally Ill Patients Should Be Legal In December of 2015, the Nevada Legislature passed, and Governor Brian Sandoval signed, the terminally ill patient protection act, which authorized Nevada physicians to recommend medical marijuana to patients who are suffering from terminal illness and are within 90 days of dying. However, only one patient has been able to use the law to obtain access to medical marijuana, thus the law has had little impact. According to Bill No. 641, the intention behind the law was to ease the suffering of terminally ill patients by permitting doctors to recommend medical marijuana use in order to make end-of-life decisions more peaceful. To the extent that medical marijuana may have eased the suffering of a single patient, it was a success. In October of 2017, the Nevada Attorney General issued an opinion letter which determined that only a “valid terminal diagnosis” is a “serious condition” that entitles the patient to use medical marijuana to ease their suffering. The opinion provides that a terminal diagnosis must be consistent with the recommendations of the American Medical Association, and that the individual’s treating physician, physician’s assistant, or nurse practitioner must determine the existence of the condition based on: (1) a medical evaluation conducted within the last year, (2) a medical history consistent with the presence of a terminal condition, and (3) written recommendations from a licensed health care professional. The opinion letter issued by the Attorney General in October 2018 provides that individuals suffering from chronic pain or other symptoms caused by a terminal condition may be protected by the Nevada terminally ill patient protection act. The Opinion Letter further provides that if an individual’s treating physician determines that they have a terminal condition, then the physician may authorize the use of medical marijuana to ease the individual’s suffering, even if the patient’s treatment does not provide a reasonable expectation of life and even if the physician does not know what to expect from the patient’s anticipated future course. Accordingly, a treating physician may recommend the use of medical marijuana even if the physician knows that medical marijuana may only have a temporary effect or that the patient’s condition may improve over time, if the treating physician anticipates that the condition may only improve with medical marijuana. In order to comply with the statute, the treating physician must consult the patient to ascertain if the physician’s prognosis coincides with the patient’s prognosis. The Opinion Letter explains that while the treating physician must determine that a patient has a terminal condition prior to recommending medical marijuana, this determination should not be made after the fact. In December of 2016, Sandoval signed Senate Bill 201, which established a “Right to Try Act.” The Right to Try Act provides that terminally ill patients who are suffering from a serious and painful disease that is not likely to result in death within six months may have access to investigational drugs and procedures which are undergoing clinical trials. The Nevada Right to Try Act states that a patient with a terminal condition who is prescribed investigational drugs or procedures may transfer the investigational drug to a pharmacist or physician for administration to the patient, provided the transfer is done by the pharmacist or physician directly to the patient, and provided that the dispensary selling the investigational drugs or procedures cannot control the transfer. The Right to Try Act also states that the medical professional, after conducting a physical exam on the patient, may use reasonable discretion in deciding whether to obtain informed consent from the patient before administering the investigational drug or procedure, or require that the treating physician obtain informed consent from the patient. The Right to Try Act does not apply to investigational drugs or procedures for which a waiver has been obtained. Under Nevada law, if a terminal patient is unable to obtain the medication he/she needs due to a federal waiver denial, that patient has no legal recourse for access to the substance or procedure. The Right to Try Act does not provide for any compensation to the patient or their family if the medication or procedure is harmful or ineffective. In 2015, the Colorado Supreme Court ruled that the federal government can prevent states from implementing their own laws when they conflict with the Controlled Substances Act (CSA). The court upheld Colorado’s law requiring the government’s approval of Colorado’s marijuana laws, stating that “[n]either Congress nor the Executive has shown that Congress intended to cede exclusive control over medical marijuana use to the individual states.” The court determined that “the Controlled Substances Act is not in actual conflict with the Compassionate Use Act” and that federal law had “not evince[d] a clear intention to occupy the field of marijuana regulation to the exclusion of the states.” Rather, the court concluded that the U.S. Constitution granted individual states the right to decide whether to legalize marijuana use. The Court’s decision stands in contrast to several other states in which the state Supreme Court ruled that federal law, in particular the CSA, required the state to ban medical marijuana. In January of 2017, Attorney General Maura Healey, who was sworn in that same month, released an opinion letter on Massachusetts’ Medical Use of Marijuana Program (Massachusetts). The opinion provided that a medical marijuana recommendation by a physician must be issued in accordance with federal law (21 U.S.C. § 829), and the recommendation is valid only if it is written as prescribed by the law, if the signature of the physician is attested by a witness, and if the medical use is consistent with all other state laws (including the Compassionate Use Act of 1996). In determining that federal law trumps state law, the attorney general did not reference the CSA’s regulatory framework. Instead, the attorney general referenced the CSA’s plain language which provides that the Act applies to any person who “knowingly or intentionally imports or exports a Schedule I controlled substance.” The attorney general interpreted this provision as indicating that marijuana remains illegal under the CSA, and not applying the CSA to patients in their homes who possess marijuana for medical purposes. The Massachusetts Supreme Judicial Court ruled in 2015 that the state’s ban on the possession, manufacture, and use of marijuana did not violate the Patients Rights Amendment. The court held that “the mere fact of a lawful prescription for marijuana pursuant to state law does not exempt it from penalties imposed under federal law.” Subsequently, the legislature passed a bill which legalized medical marijuana and created a program for cultivation, distribution, testing and dispensing marijuana. However, the law prohibits certain individuals from participating in the program, including individuals who have been convicted of any federal drug offense involving marijuana. In August 2017, the Massachusetts Department of Public Health adopted regulations pertaining to the state’s medical marijuana law. The state health department rule establishes that the medical use of marijuana is permitted if a physician determines that a patient has a serious condition for which medical marijuana provides relief and that a patient may use medical marijuana. However, physicians may only use marijuana to treat the qualifying serious condition and the patient must use marijuana in accordance with the physician’s advice. On June 5, 2017, the Vermont Supreme Court ruled that under the Vermont Constitution, the government must allow patients to cultivate and possess marijuana for personal use. The court determined that because Vermont allows patients to grow their own marijuana, but the CSA prohibits the federal government from authorizing the cultivation of marijuana, the CSA is invalid. The court determined that under the Vermont Constitution, medical marijuana must be legal and that the Vermont Legislature has the authority to direct the state Department of Public Safety to promulgate rules and regulations to carry out this responsibility. The court further determined that the Legislature did not intend to authorize the use of marijuana for non-medical purposes, despite the fact that some states provide a general exception from criminal liability for possession of marijuana by individuals who are authorized to use or cultivate marijuana for medical purposes. The court stated that because the Legislature did not intend to legalize marijuana use, the Legislature did not intend for the CSA to apply to patients and patients cannot rely on the CSA to deny them their state constitutional right to cultivate and possess marijuana. On July 3, 2017, the Alaska House of Representatives passed a bill that would have legalized marijuana for adults 21 years of age and older. The House voted down two earlier versions of the bill. The bill is currently pending before the Alaska Senate, which has already passed a version of the bill. As of the date of this article, the Alaska House has passed four versions of a medical marijuana bill. The House first passed a measure in 2014, which was vetoed by Governor Bill Walker (R). In 2015, the legislature approved a measure that was vetoed by Governor Walker, and in 2016, the legislature approved another measure that Governor Walker also vetoed. In July 2017, the Colorado Court of Appeals ruled that the state’s law allowing the use of medical marijuana for patients under 21 is unconstitutional. However, the court did not rule on the medical use of marijuana for patients over 21, and the case was remanded for further proceedings. On September 7, 2017, the attorney general issued an opinion letter that states that a physician is not required to be a prescribing physician if a person other than the patient has a medical authorization. In addition, the opinion states that “if the medical use of marijuana is legally authorized under state law, it is lawful and is not a violation of federal law to use marijuana while under the direct care of a physician for any medical condition.” The opinion does not address whether a physician who participates in a medical marijuana program must become a registered prescriber. On October 31, 2017, Governor John Hickenlooper (D) signed a bill which legalized the use of medical marijuana for patients over 21, and the state has developed a comprehensive regulatory framework to implement