Although medical marijuana became legal in Illinois pursuant to the Compassionate Use of Medical Cannabis Pilot Program Act two years ago, it was not until November 9, 2015 that the sale of medical cannabis to qualifying patients and caregivers began.

Medical Marijuana

© Mara, megaflopp – Fotolia

According to estimates from the Illinois Department of Public Health (IDPH), there are 3,300 qualifying patients in Illinois. In order to qualify for medical cannabis, a patient must have one or more specifically listed conditions, including cancer, glaucoma, Hepatitis C, severe fibromyalgia, Multiple Sclerosis, and a host of others. The full list is available on the IDPH website.

While Illinois residents may, and have, petitioned the IDPH to add debilitating medical conditions or diseases to those listed above, thus far none have been approved. IDPH’s advisory board may also make recommendations for additional ailments and has proposed conditions such as chronic pain, irritable bowel syndrome, Autism and post-traumatic stress disorder. Currently IDPH’s recommendations are awaiting Governor Rauner’s approval, but it is unclear whether such approval will be forthcoming as he has refused to add similar ailments in the past.

Under Illinois law, qualifying patients and caregivers may purchase medical marijuana from any registered dispensary within the state. IDPH began mailing Medical Cannabis Registry Identification Cards to registered, qualifying patients and caregivers on October 30, 2015.

In addition to having a Registry Card, prior to making a purchase, qualifying patients and caregivers must designate a single dispensary from which they intend to make their medical cannabis purchases. Patients do this by completing and submitting a Medical Cannabis Dispensary Selection Form to IDPH.

On November 9, 2015, eight dispensaries opened statewide. The Director of Illinois Medical Cannabis Pilot Program, Joseph Wright, anticipates that 12 to 15 medical cannabis dispensaries will be registered with IDPH by the end of the November, with approximately 20 to 25 dispensaries registered throughout the state by the end of the year. A list of registered dispensaries is available through the Illinois Department of Financial and Professional Regulation’s (IDFPR) website.

In the first week of sales, nearly $211,000 worth of cannabis was sold with only a quarter of those eligible buying so far. Mr. Wright indicated that 806 patients made purchases and bought a total of 460 ounces – an average of half an ounce per patient. Under Illinois law, a patient may purchase up to 2.5 ounces of medical cannabis during a 14-day period; however, a patient may purchase more if their physician completes a waiver indicating their condition requires a larger amount.

Given that Illinois’ medical cannabis program is still in its infancy stage, it is important that physicians understand the process for certifying patients for the use of medical cannabis, as well as what they may and may not do under Illinois law.

Only a physician licensed in Illinois may recommend the use of medical cannabis to a qualifying patient.  In order to certify that a patient has a qualifying condition, the physician must have a bona-fide physician-patient relationship with the qualifying patient beyond simply certifying the patient for the use of medical marijuana. The physician must complete an in-person full assessment of the patient’s medical history and current medical condition, including a personal physical examination, not more than 90 days prior to making the certification. The assessment must include, but is not limited to, the patient’s symptoms, signs and diagnostic testing related to the debilitating medical condition. The physician must explain the potential risks and benefits of the medical use of cannabis to the qualifying patient, as well as remain responsible for the ongoing care and treatment of the qualifying patient’s debilitating condition. If the patient is under 18 years old, a written certification from both the physician and a second reviewing physician is required.

The physician’s certification must be written on IDPH’s form. Complete instructions are available on the IDPH website.

Physicians should be aware that although they may accept payment from a qualifying patient for fees associated with the physical examination, under Illinois law they are prohibited from: (i) accepting or soliciting any form of remuneration from or to a qualifying patient, primary caregiver, cultivation center, or dispensing organization; or (ii) offering a discount or any other item of value to a qualifying patient who uses or agrees to use a particular primary caregiver or dispensing organization to obtain medical cannabis.

Additionally, physicians are prohibited from having a direct or indirect economic interest in a cultivation center or dispensing organization if he or she recommends the use of medical cannabis to qualified patients or is in a partnership with a physician who recommends medical cannabis, or from serving on the board of directors or as an employee of a cultivation center or dispensing organization.

Adam FayneAdam S. Fayne is a partner in Arnstein & Lehr LLP’s tax, corporate and white collar criminal practice areas. With an extensive background in regulatory and compliance, Mr. Fayne regularly counsels clients in the medical cannabis industry, including cannabis operators and investors.

Karen HarrisKaren K. Harris is a partner in Arnstein & Lehr LLP’s healthcare practice and is an expert in states’ medical marijuana laws. Ms. Harris has assisted clients in obtaining licensure, as well as advising on compliance issues.