Deutsch Files Two More Bills Restricting Telehealth, Free Speech, and Other Elements of Medical Marijuana Business

Anti-pot Representative Fred Deutsch’s (R-4/Florence) House Bill 1053, to prohibit pregnant women and breastfeeding moms from getting medical marijuana, bounced happily through House Health and Human Services yesterday. The Cannabis Industry Association of South Dakota itself testified in support of this new restriction, perhaps hoping to ease Deutsch’s animus and avert further attacks on the medical liberty that voters approved in 2020.

Nuts to that, says Rep. Deutsch. Yesterday Deutsch filed House Bill 1129, which would ban the use of telehealth consultations to obtain medical marijuana cards. HB 1129 would authorize a suspicious Secretary of Health to notify licensing boards of any practitioner who appears to be issuing cannabis certifications via telehealth appointments.

HB 1129 includes offers of telehealth consultations for pot cards in a raft of restrictions on practitioners’ and businesses’ free speech that, if violated, can result in shutting down pot practices for up to six months:

A practitioner or an entity employing a practitioner may not publish in any form or through any medium, or cause to be published in any form or through any medium, an advertisement that:

1. Contains false or misleading statements about the medical cannabis program;
2. States or implies that the practitioner is endorsed by the state or the medical cannabis program;
3. Contains medical symbols that could reasonably be confused with symbols of established medical associations or groups;
4. Guarantees or promises the issuance of a written certification or participation in the medical cannabis program or implies such a guarantee or promise;
5. Offers to deliver through telehealth, as defined in 34-52-1, the initial in-person visit and medical assessment as required by section 2 of this Act; or
6. Offers discounts, deals, or other financial incentives for making an appointment with a practitioner or an entity employing a practitioner.

Upon notification by the department of a violation of this section, the practitioner or entity employing a practitioner shall cease the nonconforming advertisement and remove the nonconforming advertisement from any website, social media application, mobile application, or sign.

A practitioner or entity employing a practitioner found by the secretary of the Department of Health to have violated this section is prohibited from providing a written certification to any patient for a time period not to exceed six months. A decision by the secretary under this section may be appealed under chapter 1-26 [2023 House Bill 1129, Section 4, filed 2023.01.24].

House Bill 1129 also tacks three more conditions to which practitioners must affix their signatures to certify patients for medical cannabis. The current certification includes these four conditions:

1. 1. (a) Stating that the patient has a qualifying debilitating medical condition or symptom associated with the debilitating medical condition;
   2. Affirming that the document is made in the course of a bona fide practitioner-patient relationship;
   3. Specifying the qualifying patient’s debilitating medical condition; and
   4. Specifying the expiration date of the qualifying patient’s written certification, pursuant to § 34-20G-43.

HB 1129 adds these three conditions:

5. Stating that the practitioner has assessed the patient’s medical history and current medical condition, including an in-person physical examination [this condition is redundant with the existing requirement that the practitioner and patient have a “bona-fide practitioner-patient relationship”, which is defined in SDCL 34-20G-1 as including “an assessment of the patient’s medical history and current medical information”]
6. Stating that the practitioner-patient relationship is not for the sole purpose of providing a written certification to the patient, unless the patient has been referred by a practitioner providing the patient continuing care; and
7. Stating that the practitioner has evaluated any medical cannabis contraindications with any other drug the patient is taking, assessed other medical conditions the patient has, and discussed with the patient any associated risks of taking medical cannabis considering the patient’s medical condition [HB 1029, Section 1].

If that change isn’t enough, Rep. Deutsch has another bill, House Bill 1102, filed Monday, that would expand the number of conditions to which pot-prescribers must affix their signature from four to sixteen:

1. A certification that the patient is under the practitioner’s care for a debilitating medical condition;
2. A certification that the patient has been diagnosed with a qualifying debilitating medical condition or symptom associated with the debilitating medical condition;
3. A certification that the diagnosis has been made in the course of a bona fide practitioner-patient relationship;
4. A certification that the practitioner has assessed the patient’s medical history and current medical condition, including an in-person physical examination;
5. A certification that the practitioner has developed a treatment plan for the patient’s medical use of cannabis;
6. A certification that the practitioner has evaluated any medical cannabis contraindications with any other drug the patient is taking, assessed other medical conditions the patient has, and discussed with the patient any associated risks of taking medical cannabis considering the patient’s medical condition;
7. A certification that the practitioner has considered the clinical status of the patient and has offered or recommended follow-up care with the patient or the patient’s parents or legal guardian to monitor the patient’s medical use of cannabis;
8. A certification that the practitioner-patient relationship is not for the sole purpose of providing a written certification to the patient, unless the patient has been referred by a practitioner providing the patient continuing care;
9. The practitioner’s name, address, and phone number;
10. The practitioner’s South Dakota license and National Practitioner Identification numbers, if applicable;
11. The dates of each interaction, whether by phone, virtually, or in-person, with the patient in the twelve months immediately preceding the date of the written certification;
12. The date on which the last in-person physical examination was conducted;
13. If the patient was referred by a practitioner providing the patient continuing care, the name and address of the referring practitioner;
14. If the patient was referred by a practitioner providing the patient continuing care, a certification that medical records or a visit summary including the treatment plan will be sent to the referring practitioner following the office visit related to the use of medical cannabis;
15. The date of expiration of the written certification, not to exceed one year from the date of issuance; and
16. The number of designated caregivers, if more than one, that the patient’s age or medical condition necessitates [2023 House Bill 1102, Section 4, filed 2023.01.23].

HB 1102 also creates a new bureaucratic hurdle, requiring in Section 2 that practitioners register with the Department Health to prescribe medical marijuana. Usually a medical license is sufficient to permit doctors to provide any health care they see fit; evidently medical marijuana is so uniquely harmful (do we require doctors to file a separate document on top of their medical license to prescribe opioids?) that Rep. Deutsch wants to require an extra level of permission to provide it.

HB 1102 also includes Deutsch’s ban on telehealth consultations for medical marijuana and five of the six restrictions on practitioner and vendor speech (HB 1102 leaves out the ban on offering discounts or deals).

Representative Deutsch will return to House Health and Human Services to pitch these bills. It will be interesting to see if the cannabis lobby will return and accept either of these restrictions the way it is accepting Deutsch’s ban on medical marijuana for pregnant and breastfeeding women.