Legal protections for medical cannabis recommendations passed over

Lawmakers passed over a bill April 7 that would provide legal protections to health care practitioners who recommend medical cannabis to qualified patients.

Currently, the Nebraska Medical Cannabis Patient Protection Act prevents qualified individuals from facing legal penalties for possessing and using medical cannabis when recommended by a health care provider. LB933, sponsored by Omaha Sen. John Cavanaugh, would provide the same type of protection to practitioners who provide medical cannabis recommendations.

Under the measure, health care providers would be protected from arrest, prosecution, penalty or denial of any right or privilege — including civil penalties or professional disciplinary action by the state Department of Health and Human Services or a licensing board — solely for recommending medical cannabis or stating a professional opinion that a qualified patient would benefit from medical cannabis to treat or alleviate a condition.

Cavanaugh amended the bill on general file to remove protections against civil penalty or disciplinary action for physicians who engage in malpractice or professionally negligent behavior as currently defined in state law.

He said qualified medical cannabis patients have not been able to receive recommendations from providers in the state who fear they will lose their license or face other repercussions for doing so.

“Patients are effectively denied care because doctors are afraid of professional retribution,” Cavanaugh said.

He offered an amendment on select file to further narrow the proposal by outlining the standard a health care practitioner must meet to recommend medical cannabis.

Under the amendment, a health care practitioner must consider the medical condition of the qualified patient, determine whether the potential benefits of medical cannabis outweigh the potential harms, discuss with the qualified patient or caregiver the risks associated with treatment and obtain their consent prior to issuing a written recommendation.

It also would prohibit a health care practitioner from:
• offering a discount or other item of value to a qualified patient or their parent, guardian or registered agent that is contingent upon, or encourages, the qualified patient’s decision to use a particular registered cannabis establishment;
• issuing a written recommendation to themselves, members of their family, employees or coworkers;
• providing product samples containing cannabis; and
• accepting compensation from a registered cannabis establishment.

Speaking in support of the Cavanaugh amendment, Sen. Ben Hansen of Blair referenced a letter from the Nebraska Association of Trial Attorneys indicating the proposal still would allow for civil or disciplinary action against a physician who does not follow the standard of care or engages in medical malpractice.

“[LB933] is not full immunity by any means or stretch of the imagination,” he said.

Omaha Sen. Bob Andersen opposed the Cavanaugh amendment, saying the Legislature already has already taken steps to implement the medical cannabis ballot initiative language — including formal establishment of the Nebraska Medical Marijuana Commission — and that further legislation is not warranted.

He also said the reason Nebraska doctors are not recommending medical cannabis is because it is not approved by the federal Food and Drug Administration and remains classified as a Schedule I substance.

“Until that changes, the research won’t be done [and] they won’t allow the medical specialists to do the research and figure out exactly what portions of it are applicable and how to actually apply it,” Andersen said.

Cavanaugh’s amendment failed on a 20-20 vote. Twenty-five votes were needed.

Sen. Brian Hardin of Gering offered an amendment to specify that a health care practitioner must be licensed in Nebraska in order to provide a medical cannabis recommendation to qualified patients. It also would require that such recommendation be in compliance with the Nebraska Medical Cannabis Regulation Act.

Hardin said the provision is necessary because Nebraska has no legal or regulatory authority over practitioners licensed in other states. Under the amendment, he said, an out-of-state practitioner who provides care to a qualified patient still could offer guidance and informal recommendations for a Nebraska physician to consider.

Hardin’s amendment was adopted 25-12.

Omaha Sen. Kathleen Kauth also offered an amendment on select file that would specify the standard of care a practitioner must meet to recommend the use of medical cannabis.

Under her amendment, a health care practitioner could recommend medical cannabis only if their professional judgment and a preponderance of current scientific evidence indicate that the potential benefits outweigh the potential harms for alleviating a patient’s medical condition.

Sen. Jared Storm of David City supported the amendment, calling it a “common-sense” addition to LB933 that would ensure practitioners are using the most up-to-date scientific evidence when treating patients.

The amendment was adopted on a 26-16 vote.

Kauth offered a second amendment to include provisions of her LB732, which would prohibit access to hormones and puberty blockers for Nebraskans younger than 19 who are experiencing gender dysphoria.

Kauth said current law creates a “runway” for youth experiencing gender dysphoria to access care focused on affirming their identity. She claimed medical professionals have no way to know which patients may continue to experience gender dysphoria and which will come to terms with their sex assigned at birth.

“Systematic reviews of the evidence have revealed deep uncertainty about the reported benefits of these interventions … [and] more and more states have recognized that these drugs are experimental and detrimental to growing youth,” Kauth said.

Sen. George Dungan of Lincoln offered a motion challenging the germaneness of the Kauth amendment to the underlying bill, which was unsuccessful.

The Legislature then passed over LB933 at Cavanaugh’s request. He said the measure had been “hijacked” and would no longer achieve the goal of providing a functional medical cannabis program to Nebraskans in need of care.

“This bill no longer serves the goal of ensuring that kids get access to medicine … so they will have to wait another year,” Cavanaugh said.

The Legislature moved on to the next item on the agenda without voting on the bill or the pending amendments. The measure is unlikely to be scheduled for further debate this session.