A mature woman leans in over a counter and reaches for some cannabis buds that have been laid out by the associate in the product lid. The woman is inspecting the product before purchasing from the legal retailer.
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A growing number of states have legalized cannabis — medically or recreationally, or both. But marijuana remains illegal under federal law, creating a conundrum for senior living communities and their residents.

Arizona law, for example, allows for the administration of medical marijuana and marijuana-derived medications to registered and qualified assisted living residents. Those medications require a prescription, but finding a physician willing to provide one is difficult due to fears of federal repercussions, according to the Phoenix New Times.

According to the National Conference of State Legislatures, 19 states and the District of Columbia have legalized marijuana for recreational purposes. As of this month, 38 states and the District of Columbia, Puerto Rico, Guam, the Northern Mariana Islands and the U.S. Virgin Islands have legalized medical marijuana to varying degrees, according to the National Organization for the Reform of Marijuana Laws

The Marijuana Opportunity Reinvestment and Expungement Act cleared the House of Representatives in April and is now before the Senate. If passed and signed by President Biden, it would legalize cannabis at the federal level, expunge the records of nonviolent offenders, and fund social and criminal justice programs in communities. 

In the Senate, the Cannabis Administration and Opportunity Act would end the federal ban on cannabis and give state-compliant cannabis businesses access to financial services. 

One of LeadingAge’s 2022 policy advocacy goals involves medical marijuana. 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, pursuant to state laws.

Senior living’s conundrum

Medical marijuana’s popularity is growing among the oldest baby boomers, who are turning 76 this year and are considering senior housing options. But the drug remains classified by the federal government as an illegal Schedule I drug. 

Brian Rath, a healthcare attorney for Buchanan Ingersoll & Rooney, who represents assisted living communities and other long-term care facilities, said that marijuana’s federal status is the biggest challenge for providers right now. 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.

“The question becomes, is that certification accurate and what, if anything, can happen on the federal level if the federal government decides to prosecute or wants to enforce these laws?” Rath told McKnight’s Senior Living. “It’s a conundrum all senior care facilities face. There’s not a perfect answer.”

Rath said that the federal government has issued policies that lead many to believe it would not enforce federal law in this regard, particularly when it conflicts with state medical marijuana laws.

In 2013, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of state ballot initiatives legalizing the production, processing and sale of marijuana. Known as the Cole Memorandum, that guidance states that the federal attorney general and the Department of Justice would not enforce federal marijuana laws in states where marijuana is legal, as long as users comply with state laws. 

That policy was followed in 2014 by an amendment to the federal budget — which has been renewed every year since — that says that the DOJ is not permitted to spend federal dollars to enforce federal marijuana laws in states that have medical marijuana laws. 

Further complicating the situation, Rath said, is that the federal stance doesn’t prevent a state Department of Health surveyor from going into a facility that allows residents to use medical marijuana and finding it out of compliance with federal law.

Rath said that he often uses a 2021 quote from U.S. Supreme Court Justice Clarence Thomas calling the federal government’s approach a “half-in, half-out regime that simultaneously tolerates and forbids the local use of marijuana.” Thomas called the federal enforcement of its marijuana laws a “contradictory and unstable state of affairs” after the Court declined to hear a case challenging federal tax policy on marijuana dispensaries.

“He basically said it’s clear as mud,” Rath said. “When you talk about senior living, most facilities are going to a place where the writing on the wall is that there will not be federal enforcement of federal law when it comes to cannabis, particularly medical marijuana.”

A business decision

Rath said that operators are opting in to allow their residents to use medical marijuana because the baby boomers are the first generation of residents who are more open to its use.

“It becomes a business decision for facilities,” he said, adding that allowing medical marijuana use can become a selling point for some communities. “There is a movement, generally, toward allowing marijuana — particularly medical marijuana — in senior living housing.”

But operators also want to protect themselves by placing restrictions on its use. As in Arizona, many communities state that they will not distribute, store or maintain a resident’s medical marijuana. Some communities, Rath said, provide a lockbox system that a resident or caretaker can access. And many operators enforce no smoking policies, requiring residents who partake to use edibles, tinctures, drops or other forms of medical cannabis. 

In some states, depending on how assisted living is regulated, the matter may be a landlord-tenant issue. And in federally subsidized affordable housing, the issue is even stickier, Rath said. There are marijuana prohibitions in Department of Housing and Urban Development buildings, but it’s questionable whether those prohibitions will be enforced, he said.