Bulletin | Telehealth Consultations for Patients | June 14, 2021

On March 10, 2020, Governor Charlie Baker declared a State of Emergency (Emergency Order) in the Commonwealth of Massachusetts due to the outbreak of the 2019 novel Coronavirus (COVID-19). On March 17, 2020, the Administration announced further actions to support residents, healthcare providers, and small businesses during the COVID-19 outbreak, including an Order Expanding Access to Telehealth Services and to Protect Health Care Providers, which allows for the provision of telehealth (telephone and live video) to facilitate patient access to medical services. Given Governor Baker’s decision to rescind the Emergency Order on June 15, 2021, the Cannabis Control Commission (Commission) updates its bulletin to Certifying Health Care Providers (Providers) who are engaged in the Massachusetts Medical Use of Marijuana Program through telehealth means to allow for a limited extension (Telehealth Order).¹

The Executive Director, acting on behalf of the Commission, has determined that the requirement that a potential Qualifying Patient (“Patient”) seeking certification and be physically present for a Clinical Visit under 935 Code Mass. Regs. §§ 501.002 and 501.010 would cause undue hardship to Providers and Patients by increasing the risk of their exposure to COVID-19. Notwithstanding the recission of Governor Baker’s Emergency Order on June 15, 2021, waiver of 935 Code Mass. Regs. §§ 501.002 and 501.010 is allowed for Patients who wish to register for the first time with the Medical Use of Marijuana Program in Massachusetts. Clinical visits, including for renewal, are permitted through telehealth means for all patients. To allow for time to transition and in the interest of patient access, this Telehealth Order is in place until September 1, 2021. After that date, per the medical-use regulations, Clinical Visits may occur in-person or by telehealth means, provided that a Clinical Visit for issuing an initial Certificate of Registration must be conducted in-person.

Prior to each Clinical Visit conducted through telehealth means, Providers must first ensure that there is an ability to deliver the service through telehealth with the same standard of care and in compliance with licensure and registration requirements using telehealth as is applicable to the delivery of the services in person. If a Provider cannot meet the standard of care or these requirements, the Provider must direct the Patient to seek in-person care. Providers must make this determination prior to the issuance of a written certification. Nothing in this Telehealth Order supersedes Providers’ obligations to comply with their professional medical licensing requirements and generally accepted standards of medical practices.

Under 935 Code Mass. Regs. § 501.850(2), the Provider shall adhere to the following conditions prior to issuing a written certification. During the visit, Providers must:

• Disclose and validate their identity and credentials, such as the Provider’s license, title, and, if applicable, specialty and board certifications.
• Disclose that the Provider obtained a waiver to conduct the Clinical Visit by telehealth and without the requirement of a physical exam subject to certain conditions.
• Properly identify the Patient by using, at a minimum, the Patient’s name, date of birth, and state-issued identification.
• Establish a bona fide healthcare professional-patient relationship, which includes a full assessment of the qualifying patient’s medical history and condition, including a debilitating medical condition, prior to issuing a written certification in addition to the requirements set forth in G.L. 94I and 935 Code Mass. Regs. § 501.010. G.L. c. 94I, § 2 (b) (1).
• Must ensure the same rights to confidentiality and security as provided with in-person services.
• Must inform Patients of any relevant privacy considerations under G.L. c. 94I, § 3 (b), 935 CMR 501.820, and other laws applying to professional medical licenses, and ensure the same rights to confidentiality as provided with in-person services.

Patients who secured their initial Certificate of Registration without an in-person Clinical Visit are encouraged to have a Clinical Visit when the Emergency Order or Telehealth Order are no longer in place or when the circumstances of the Clinical Visit do not pose a threat to the Patient’s or Provider’s health, safety, or welfare.

Waiver. To obtain a waiver, Providers should complete and submit the Commission’s general Waiver Request Form available at MassCannabisControl.Com/Forms-and-Templates. Once approved by the Commission, the waiver will authorize Providers to serve all Patients who request a Written Certification for the Medical Use of Marijuana Program using telehealth means so long as this Telehealth Order remains in place. Additionally

• When this Telehealth Order expires, all waivers are rescinded with or without notice to Providers.
• At that time, every Provider(s) shall satisfy the requirement that Patient(s) has a Clinical Visit, which is defined as an in-person or telehealth visit during which a Certifying Healthcare Provider establishes a Bona Fide Healthcare Provider Patient Relationship and conducts a full assessment of the Patient’s medical history and current medical condition, including the Debilitating Medical Condition, and explains the potential benefits and risks of Marijuana use. 935 Code Mass Regs. §Clinical Visit 501.002. However, a Clinical Visit for an initial Certificate of Registration shall be performed in-person.
• Failure to comply with these requirements and the requirements of 935 Code Mass. Regs. 501.000: Medical Use of Marijuana may result in disciplinary action including, but not limited to, the loss of Provider’s certification privileges.

Providers may contact the Commission at Commission@CCCMass.com regarding questions about this bulletin.

References:

Governor Baker’s Emergency Order and notice of rescission on June 15, 2021, available at https://www.mass.gov/news/declaration-of-a-state-of-emergency-to-respond-to-covid-19, and https://www.mass.gov/info-details/covid-19-state-of-emergency.

Revised Order Expanding Access to Inpatient Services, available at https://www.mass.gov/doc/covid-19-order-61/download.

Commission March 13, 2020 Bulletin: Licensees’ Preparation for COVID-19– available at https://masscannabiscontrol.com/document/bulletin-licensees-preparation-for-covid-19-march-13-2020/.

Commission March 18, 2020 Bulletin: Licensees’ Preparation for COVID-19, available at https://masscannabiscontrol.com/document/bulletin-licensees-preparation-for-covid-19-march-18-2020/.

Commission March 20, 2020 Bulletin: Telehealth Consultations for New Patients During COVID-19 (“Coronavirus”) State of Emergency, available at https://mass-cannabis-control.com/telehealth-consultations-for-new-patients-march-20-2020/.

Commission February 23, 2021 Bulletin: Telehealth Consultations for New Patients During COVID-19 (“Coronavirus”) State of Emergency, available at https://masscannabiscontrol.com/2021/03/bulletin-telehealth-consultations-for-new-patients-february-23-2021/.

Massachusetts Medical Use of Marijuana Regulations, available at https://masscannabiscontrol.com/state-local-government/law-enforcement/laws-and-regulations/

1 This bulletin supplements and updates the Commission’s bulletins issued March 13, 2020, March 18, 2020, March 20, 2020, and February 23, 2021.