April 15, 2019

On March 18, 2019 Governor Ron DeSantis signed into law Senate Bill 182, which allows a qualified physician to determine that smoking is an appropriate route of administration for medical marijuana. As a qualified physician, here’s what you need to know:

First, you must revise your informed-consent form to advise patients of the negative health risks associated with smoking marijuana.

Second, you must submit specified documentation to your board (Board of Medicine or Board of Osteopathic Medicine) once you determine that smoking is an appropriate route of administration for a patient. The documentation must include:

• A list of other routes of administration, if any, certified by a qualified physician that the patient has tried,the length of time the patient used such routes of administration, and an assessment of the effectiveness of those routes of administration in treating the qualified patient’s qualifying condition. 
• Research documenting the effectiveness of smoking as a route of administration to treat similarly situated patients with the same qualifying condition as the qualified patient.
• A statement signed by you documenting your opinion that the benefits of smoking marijuana for medical use outweigh the risks for the qualified patient.

Additionally, you may not issue a physician certification for marijuana in a form for smoking to a patient under 18 years of age unless the patient is diagnosed with a terminal condition; you determine that smoking is the most effective route of administration for the patient; and a second physician who is a board-certified pediatrician concurs with such determination. That determination and concurrence must be documented in the patient’s medical record and in the medical marijuana use registry.

Lastly, you must also obtain written informed consent of the minor patient’s parent or legal guardian before issuing a physician certification to the patient for marijuana in a form for smoking. The Board of Medicine and the Board of Osteopathic Medicine have adopted a standardized consent form which includes information concerning the negative health effects of smoking marijuana on persons under 18 years of age and an acknowledgement that you have sufficiently explained the contents of the form.

The bill also does a few other things. It:

• establishes a supply limit for your physician certification, viz., no more than three 70-day supply limits or six 35-day supply limits unless you request an exception to the daily dose limit;

• authorizes more than one caregiver to assist with a qualified patient’s medical use of marijuana if the patient is participating in a certain research program in a teaching nursing home; 

• authorizes a caregiver to be listed in the medical marijuana use registry as a designated caregiver for qualified patients who are participating in a certain research program in a teaching nursing home; and 

• requires DOH to adopt rules regulating the types, appearance, and labeling of marijuana delivery devices.

If you have questions about the implementation of SB 182, we can help. The lawyers at Turner O’Connor Kozlowski assist doctors and other health care professionals with a host of issues, ranging from compliance and contracts to investigations by the Department of Health.

Florida will spend $375 million this year on health care for prisoners, and next year’s budget anticipates a rise to just short of $500 million. Sen. Jeff Brandes, R-St. Petersburg, is trying to do something about it.

Brandes has proposed allowing some prisoners with terminal or debilitating diseases to qualify for early release, potentially saving millions in the process. A bill to that effect is being considered, and Brandes says it would primarily affect very old, sick, and infirm prisoners who are unlikely to reoffend.

Medicare and Medicaid do not cover people who are incarcerated, so the full cost falls on the state prison system. Once released, those programs would become responsible for health coverage. 

Under the proposed law, released prisoners would have to wear ankle monitors.

In Florida, a quarter of prisoners are older than 50, and more than 1,600 are 70 or older. Brandes acknowledges that this proposal would mean the release of just about 200 inmates, and he also is promoting other prison reform measures, such as changes to sentencing laws.

Everyone.

Seems like an easy answer under our Constitution and hundreds of years of criminal justice jurisprudence. In fact, there’s a valid sentiment that those accused of the worst crimes, the most heinous and repulsive acts, are most in need of a good defense. If nothing else—and often there is nothing else—it protects an accused citizen from the angry mob. The type of angry mobs that lynched and shot and beat so many who were both rightly and wrongly accused over our history.

But some students at Harvard and maybe even the school itself appear not to believe in this most basic of rights.

Professor Ronald Sullivan joined Hollywood producer Harvey Weinstein’s legal defense team earlier this year, representing Weinstein on multiple charges of sexual assault. He apparently is a defendant who does not deserve a lawyer, judging by the reaction of vocal students at Harvard who have protested and called for Sullivan to resign his faculty dean position, according to the New York Times.

“Do you really want to one day accept your diploma from someone who for whatever reason, professional or personal, believes it is O.K. to defend such a prominent figure at the center of the #MeToo movement?” one student wrote in a petition.

And the dean of Harvard College said in February that the college would conduct a “climate review” of how some students view Sullivan’s choice to represent Weinstein. Also, that they would “take action as appropriate.”

Heather MacDonald, writing an opinion piece in the Wall Street Journal, had a clear perspective on the topic.

“The fact of the climate review is bad enough. It validates the idea that there is something to investigate in Mr. Sullivan’s decision to represent an unpopular client. And the administration’s rhetoric smacks of a re-education camp.” She lamented that six Harvard dorms held “listening sessions” attended by emissaries from the university’s Office for Sexual Assault Prevention and Response. The office’s website had urged traumatized students to seek mental health services, according to MacDonald.

For his part, Sullivan has written that he hopes this can be a “teachable moment” at Harvard about basic due process rights.  One can only hope that the protesters are willing to be taught.

Florida’s voter-approved constitutional amendment 11 abandoned the “savings clause” that has been in Article X, Section 9 of the state constitution since 1885. The clause bans any changes to a criminal statute from being applied retroactively.  The change means that sentencing reform could apply to cases of people already imprisoned. But how that should work is perplexing Florida legislators as they attempt to establish exactly what the amendment meant or should mean. Some legislators believe that if the amendment is not clarified, turmoil is on the horizon. Attorney General Ashley Moody agrees and is backing legislation proposed by Senator Tom Lee. On the other hand, others such as Senator Darryl Rouson see this as an unnecessary attempt to manipulate and narrow the provision. The debate emerged over whether or not Amendment 11 should be interpreted to allow by default the retroactive application of sentencing reform to those previously sentenced or only those cases approved by the Legislature. The outcome will affect thousands in Florida.

Lee and Moody argue that legislation should specify exactly what voters really wanted to gain out of Amendment 11 and would prevent any confusion as to its meaning. Without this guidance, they claim thousands of defendants would attempt to appeal their current sentences, thus overwhelming the court system.  Lee’s bill, SB 1656, seeks to require the Legislature to specify in any sentencing reform law whether it is to apply retroactively.

“In the abundance of caution, we just want to make sure that unless our laws specifically say so, any reduction in the sentencing guidelines in the future does not retroactively apply to current prisoners,” Lee told The News Service of Florida.

Rouson told Florida Politics.com that he sees this as a direct assault on the will of the voters and an ill-advised initiative. Rouson authored this revision to Florida’s constitution as a member of the Florida Constitutional Revision Commission. He lacks the backing of the Attorney General but has his own support from Families Against Mandatory Minimums, a criminal justice reform group. Being the author of the revision, his say on the matter is especially important, as it provides insight on how he intended the language to be received, interpreted, and applied. He is planning on adding an amendment to Lee’s bill which would allow for any sentencing changes to be applied retroactively. As an added measure, he is also sponsoring legislation that would enable most sentencing changes to be applied retroactively. The exceptions would be those as a result of a unanimous jury verdict and a jury’s finding of aggravating circumstances in death penalty cases. 

This battle is important. If it is decided that retroactive application of new/changed sentencing laws is to be automatic, then thousands of those already convicted could challenge their current sentences. However, if it is determined that automatic retroactive application should not be presumed, then current sentences would stand unless otherwise specified by legislation. Regardless, the fate of thousands of inmates and those already sentenced hangs in the balance, making this decision critical.