Due to the unprecedented issues created by the COVID-19 pandemic, many different industries have had to change how they operate to comply with restrictive orders to help stop the spread of the virus. One of the industries that has been most affected by this virus is the Ohio medical marijuana industry. Thankfully, the Ohio Board of Pharmacy (“Board”) has issued guidance and temporary relief from some regulations to help the medical marijuana industry safely operate during this pandemic.
Orders Over the Telephone
On March 20, 2020, the Board issued guidance permitting patients and caregivers to place an order for the sale of marijuana through the telephone. The patient/caregiver must contact the dispensary and orders must be taken on the telephone system on the dispensary’s premises. When the patient/caregiver arrives, his/her photo identification and registry identification card must be verified when he/she arrives and at the point of sale terminal. Payments may not be accepted over the phone. Product not picked up by the close of business must be returned to the vault or safe.
Interestingly, some states, such as Michigan and Illinois, have begun allowing online ordering – though online orders are not yet permitted in Ohio. A copy of the Board’s telephone ordering guidance can be accessed here.
On March 23, 2020, the Board issued guidance permitting a patient to have up to three caregivers, and a caregiver to have up to three patients. Also, caregivers can now be linked to patients through either the patient’s physician, or by applying directly to the Board for patients who are already in the registry. Hopefully, this will grant patients greater access to caregivers when some caregivers may be quarantined or reluctant to leave their homes. A copy of this guidance and instructions for submitting the application directly to the Board can be accessed here.
On April 3, 2020, Ohio joined a growing list of states to temporarily permit sales to patients and caregivers outside the dispensary department. Transactions must occur on dispensary property, security personnel must be present, and transactions must occur within the coverage of one of the security cameras. The guidance specifically prohibits home or off-site delivery. If curb-side pickup works well and is safe, the Board may make this rule change permanent.
Interestingly, some states, such as Michigan and Maryland, are allowing delivery during the pandemic. Also, California permitted deliveries prior to the pandemic. Home delivery is a popular option in other states, especially during “Stay at Home” or other “Shelter in Place” orders. It is possible that the Board will re-evaluate its position relative to home delivery in future rule changes. The Board may review how home-delivery is working in other states and may being to permit it during the pandemic, which could lead to it becoming permanent. A copy of the curb-side pickup guidance can be accessed here.
Photo ID Requirements
On April 14, 2020, due to closures of BMVs throughout Ohio, the Board issued guidance permitting renewal of registrations and recommendations for patients and caregivers with identification that expired on or after February 1, 2020, so long as the document is legible and it is one of the forms of identifications permitted under Ohio Administrative Code § 3796:7-2-01. If the identification expired before February 1, 2020, patients can register with a birth certificate and one of the identifications permitted under Ohio Administrative Code § 3796:7-2-01. Dispensaries will be required to honor this form of identification. Patients will have 60 days after the rescission of this guidance to obtain valid photo identification.
Moreover, the guidance permits birth certificates as acceptable identification for minors or adults with legal guardians, and dispensaries will be required to accept this form of identification for these patients. Patients registering with birth certificates shall have 60 days after the rescission of this guidance to obtain valid photo identification.
Lastly, the guidance provides for alternative forms of identification for currently registered patients or caregivers who have lost their identification. One option is to present a birth certificate and a social security card. Another option is to provide a birth certificate or social security card, and either a current utility bill, bank statement, government check, paycheck, or other government document that shows the patient/caregiver’s name and address. This guidance can be accessed here.
90-Day Supply Resolution and Guidance
On April 17, 2020, the Board is establishing a new process to calculate a patient’s 90-day supply. Under the prior process, a patient could only purchase medical marijuana for the remaining days from the 90-day recommendation supply period. For example, if a patient had not purchased medical marijuana until day 40 of his/her 90-day supply period, the patient could only purchase up to 50-days-worth of supply.
Under the new process, the 90-day recommendation will now be divided into two 45-day fill periods. The first fill period begins when the patient receives the recommendation. Importantly, a patient may now purchase the entire 45-day supply of medical marijuana, regardless of when the purchase is made during the period. If the patient does not purchase the entire 45-day supply in the first period, the patient may not purchase more than a 45-day supply in the second fill period. A copy of this guidance can be accessed here.
Some of these changes will likely remain temporarily in place only during the pandemic, such as the relaxed photo identification requirements and caregiver registration requirements. However, for the other changes, the Board may review the efficacy of these new rules and make some permanent.
If you have questions about how the coronavirus is impacting the medical marijuana industry, please contact a member of Frantz Ward’s Cannabis Law and Policy team.