Potential rescheduling of marijuana could affect senior living providers, residents

A move by the federal government to reclassify marijuana as a schedule III drug could have implications for senior living residents.

Last week, the US Department of Justice and its Drug Enforcement Agency announced that the attorney general had submitted a proposed rule to the Federal Register, initiating a formal process to consider moving marijuana from a schedule I to a schedule III drug under the Controlled Substances Act. The rule was published Tuesday.

During a LeadingAge member policy update call on Monday, Vice President of Legal Affairs Jon Lips said that if the proposed rule is finalized, it has the potential to impact aging services providers, but that it will take “considerable time” for that to play out. 

“Our analysis is that reclassification would create the possibility of medical uses that are not available under current federal law, provided that state medical marijuana programs can be aligned, and that research about the medical effects of marijuana would be subject to fewer restrictions,” Lips told McKnight’s Senior Living. “However, there are several steps that would lie ahead, even beyond the Department of Justice issuing a final rule reclassifying to schedule III.”

Marijuana has been classified as a schedule I drug since Congress enacted the CSA in 1970. The latest move by the Justice Department follows a Department of Health and Human Services recommendation in August to reschedule marijuana, finding that it has medical and scientific value. The HHS recommendation considered the potential for abuse, scientific evidence of marijuana’s pharmacologic effects, and potential risks to public health.

Lips said that the key difference between schedule I and schedule III substances is that those under the schedule III umbrella have accepted medical uses and may be lawfully dispensed by prescription, whereas schedule I drugs cannot be prescribed. Any prescription medications also must be approved by the Food and Drug Administration, and marijuana is not an FDA-approved drug at this time. 

“Even on schedule III, [marijuana] would remain regulated by the DEA and continue to be subjected to some federal controls, but those are much less stringent,” Lips said. “In other words, this would open up pathways to medical use not available under current federal law.”

The federal government is soliciting comments on the proposal through June 20. In the meantime, marijuana remains a schedule 1 controlled substance. 

Lips said during the LeadingAge call that the DOJ proposal to reschedule marijuana is a “significant shift” in how the federal government views the safety and use of the drug. He added that if the proposal is finalized and marijuana is transferred to a schedule III drug under the CSA, that won’t mean that marijuana is legalized, and it would not automatically bring existing state medical marijuana programs into compliance with the CSA.

Conflicting laws

A growing number of states have legalized cannabis — for medical or recreational purposes or both. It remains illegal under federal law, however, creating a conundrum for senior living communities and their residents. 

As of April 2023, 38 states, three territories and the District of Columbia allowed the medical use of cannabis products, and as of November 2023, 24 states, Washington, DC, and two territories had enacted measures to regulate cannabis for recreational use, according to the National Conference of State Legislatures. 

Marijuana’s federal status is the biggest challenge for senior living providers. Assisted living communities and nursing homes that accept federal Medicaid and/or Medicare funds must certify that they comply with all state and federal laws. 

Medical marijuana is the focus of one of LeadingAge’s policy advocacy goals. As part of those goals, the association is seeking confirmation from the federal government that it will not pursue civil or criminal actions against providers if they allow the use of medical cannabis in states where its use is legal.

LeadingAge also supports federal legislation or regulations prohibiting federal agency interference with state medical cannabis laws and will work with state partner associations to support legislation to enact medical cannabis laws and regulations that allow older adults to access it “under appropriate circumstances to alleviate pain and other symptoms of disease.”

The federal government has issued policies leading many to believe that it would not enforce federal law when it conflicts with state medical marijuana laws. For instance, the 2013 Cole Memorandum states that the attorney general and the Justice Department would not enforce federal marijuana laws in states where marijuana is legal, as long as users comply with state laws. And in 2014, an amendment to the federal budget — renewed every year since then — says that the DOJ is not permitted to spend federal dollars to enforce federal marijuana laws in states that have laws permitting the use of medical marijuana.

Arizona law allows for the administration of medical marijuana and marijuana-derived medications to registered and qualified assisted living residents. In other states, depending on how assisted living is regulated, the matter may be a landlord-tenant issue. And in federally subsidized affordable senior housing, marijuana prohibitions exist in US Department of Housing and Urban Development buildings.