Medical marijuana may now be prescribed in New Jersey via telemedicine. The regulatory change, which was prompted by the ongoing COVID-19 pandemic, is expected to further increase the number of patients participating in the New Jersey Medical Marijuana Program.

COVID-19 and Telehealth

Telehealth has become more commonplace in response to COVID-19. In March, Gov. Phil Murphy signed legislation (P.L. 2020, c. 3) authorizing the Director of the Division of Consumer Affairs in the Department of Law and Public Safety and the Commissioner of Health to waive any requirement of state law or regulation as may be necessary to facilitate the provision of health care services using telemedicine and telehealth during COVID-19 public health emergency. The new law aimed to eliminate restrictions that prevented practitioners from using telemedicine or telehealth, as well as provide flexibility in the types of technologies that may be used in telehealth and telemedicine encounters.

On the federal level, the Drug Enforcement Administration (DEA) issued a temporary waiver that allows a practitioner to prescribe a Schedule II CDS through telemedicine without an initial in-person examination, so long as the prescription is issued for a legitimate medical purpose; the communications are conducted using a real-time, audio-visual, two-way interactive system; and the telemedicine encounter is consistent with the standard of care.

Using Telemedicine to Prescribe Cannabis

While in-person services have resumed in New Jersey, many patients, particularly high-risk individuals, are understandably still more comfortable conducting appointments online. Under an Administrative Order executed by the Acting Director of the Division of Consumer Affairs, health care professionals can now use a telemedicine encounter to satisfy existing requirements for a physical examination of the patient before authorizing medical marijuana or when prescribing, dispensing, or administering controlled dangerous substances (CDS).

“New Jersey health care practices are again offering in-person services, but telehealth remains an important option for patients and providers,” Attorney General Gurbir S. Grewal said in a press statement. “Today, we are making it easier for patients to choose telehealth services for any reason, including to avoid an in-person visit due to the continuing risk of COVID-19.  Doctors who use telemedicine to prescribe CDS or authorize medical marijuana will be held to the same professional standards as for in-person visits and must comply with all of the important safeguards we have adopted to prevent diversion and misuse.”

With regard to medical marijuana, N.J.A.C. 13:35-7A.4 typically requires physicians to perform a comprehensive medical history and physical examination of the patient to determine whether the patient suffers from a qualifying medical condition. Under the new Administrative Order, a physician issuing a certification for the use of medical cannabis may utilize a telemedicine encounter to satisfy these requirements, if consistent with the standard of care, subject to the following conditions:

1. The authorization is for a recognized qualifying condition;
2. The telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and
3. The use of telemedicine, rather than an in-person visit, is consistent with the standard of care required for assessment and treatment of the patient’s condition.

A subsequent authorization for medical marijuana may also be provided via telemedicine if the physician determines that an in-person visit is not required, consistent with the standard of care.

For now, the authorization is temporary. The Order states that it will remain in effect, unless expressly revoked or superseded by a subsequent Administrative Order issued by the Director of the Division of Consumer Affairs, until whichever of the following occurs first: (1) the end of the state of emergency or public health emergency declared by the Governor in Executive Order 103, whichever is later; or (2) the end of the telemedicine allowance designated by the United States Secretary of Health and Human Services on March 16, 2020, based upon the public health emergency declared by the Secretary on January 31, 2020.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

This article is a part of a series pertaining to cannabis legalization in New Jersey and the United States at large. Prior articles in this series are below:

• NJ Medical Marijuana Dispensaries To Start Home Delivery Soon
• Understanding How the USPTO’s Examination Guide for Cannabis Marks Impacts CBD Products
• How NJ Supreme Court Decision Impacts Employee Use of Medical Cannabis

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.