DePARIMENT OF VETERANS AFFAIRS Under Secretary for Health Washinaton OC 20420 ‘The Honorable Kirsten Gillibrand United States Senate Washington, DC 20510 Dear Senator Gillibrand: “Thank you for your January 27, 2016, co-signed leter to the Department of ‘Veterans Affairs (VA) about VA policy regarding medical marjuana. | an responding on behalf of the Department, and I recognize that the disparity between Federal and state laws regarding the use af marijuana creates considerabie uncertainty for patients, providers, and Federal, state, and local law enforcement personnel. wholeheartedly agree that VA should do allt can to foster open communication between Veterans and their VA providers, including discussion about participation in state marijuana prograns. At the same time, marijuana is classified asa Schedule | substance under the Controlled Substances Act, so itis unlawful to knowingly or intentionally aistioute or dispense marjuana as a matter of Federal law. VA and Its providers are bound by this prohibition. The Veterans Health Administration's (VHA) Directive 2011-004 entiled, “Access to Clinical Programs for Veterans Participating in State-Approved Marijuana Programs," was developed specifically o furher the aim of improving patient-physician communication, while recognizing the legal constraints faced by VA providers. |n 2009, as states began to establish marijuana programs, VA asked the United States Attorney Genera ifitis permissible for VA providers to complete forms and make recommendations needed for patients to participate in state marijuana programs. The enclosed Department o* Justice (DoJ) Drug Enforcement Administration (DEA) opinion is unambiguous: *..a physician who acts with the ‘specific intent to provide the means’ by which his¢er patient may obtain marijuana does so in violation of 21 US.C 641(a)(), and is subject to the enforcement provisions ofthe (Controlled Substances Act.” ‘The DoJ opinion also states, “The decision fo pursue a prosecution of a VA ‘physician for completing a state marjuana form on behalf ofa patient lies within the ‘broad discretion of the U.S. Attorey’s Office with venue over the unlawful conduct. Investigative resources es well as the facts surrounding a particular case dictate whether DEA would pursue such an investigation. Consistent with the recently issued DoJ medical manjuana policy, however, DEA remains committed to the enforcement of the Controlled Substances Actin all states.”Page 2. The Honorable Kirsten Gilibrand If VA were to modify Directive 2011-006 to allow its providers to complete forms ‘and make recommendations needed for Veterans to participate in state marijuana ‘programs, it would subject VA providers to uncertainty about whether DEA would {investigate their conduct and then, whether the U.S, Attomey would pursue prosecution. ‘Although I understand the 2016 Miltary Construction- Veterans Affairs Appropriaticn bill Contains language preventing DEA interference with state marijuana programs, this prohibition does not extend to VA providers, nor does it extend beyond September 30, 2016. Forthese reasons, VA cannot update VHA Directive 2011-004 to allow VA providers to complete forms and make recommendations for state marijuana programs, | stand ready to assist with input from VA clinicians on any new Congressional proposals to align Federal marijuana laws with state laws. | offer this assistance so that Glinical considerations, particularly in patients with mental health diagnoses, can help strengthen any proposals. | will also ensure that the next update to VHA Directive, 201 1-004 willbe clearer that patient-provider discussions about marijuana use are not prohibited, and I wil immediately clarify this with VA providers. In addition, under VA Policy itis very clear that a Veteran's participation In a state marijuana program does not affect their abily to participate in VA treatment programs. \VA is grateful for your continuing suppor of Veterans and appreciates your efforts to pass legisation enabling VA to provide Veterans with the high-quality care they have eamed and deserve. As the Department focuses on ways to help provide access to health care in your state and across the countty, we have identified a number of necessary legislative items that require action by Congress in order to best serve Veterans, Flexible budget authority would allow VA to avoid artificial rectritions that impede our delivery of care and benefits to Veterans. Currently, there are over 70 ine items in VA's budget that dedicate funds to a specific purpose without adequate flexibility to provide the best service to Veterans. These include limitations within the ‘Same general areas, such as health care funds that cannot be spent on health care ‘needs and funding that can be used for only one type of Care in the Community, Program, but not ethers. These restrictions limit the abilty of VA to deliver Veterans with care and benefits based on demand, rather than specific funding lines. VA also requests your support for the Purchased Health Care Streamlining and ‘Modemization Act. This legislation would allow VA to contract with providers on an individual basis in the community outside of Federal Acquisition Regulations, without forcing providers to meet excessive compliance burdens. Already, we have seenPage 3. ‘The Honorable Kirsten Gillibrand certain nursing homes not renew their agreements with VA because of these burdens, requiring Veterans to find new facilities for residence. VA further requests your support {or our efforts to recruit and retain the very best clinical professionals. These include, {or example, flexibility for he Federal work period requirement, which is not consistent with private sector medicine, and special pay authority to help VA recruit and retain the best talent possible to lead our hospitals and health care networks, ‘Should you have further questions, please have a member of your staff contact, Mr. Tim Embree, Congressional Relations Officer, at (202) 461-5552 or by email at Timothy.Embree@va.gov. A similar response has been sent to the casigners of your letter. Thank you for your continued support of our mission. Sincerely, David J. Shulkin, M.O. Enclosure.U.S. Department of Justice Drug Enforcement Administration Office of Chief Counsel Wnwrdeagov (OCT 19 2009 Will A. Guna General Counsel Department of Veterans Affairs Office of the General Counsel ‘Washington, D.C. 20420 Re: Letter dated uly 8, 2008, Soliciting Opinion Regarding Marijuana Forms Dear Mr. Gunn! tis our understanding that Department of Veterans Affairs (VA) physicians are being asked to complete non-VA forms that have the single purpose of helping patients procure marijuana under various state marijuana programs. By a letter dated July 8, 2008, you inquired whether a VA physician's ‘completion ofthese forms is a violation ofthe Controlled Substances Act (CSA), potentially subjecting ‘the physician to enforcement action under the CSA. This ofice has delayed responding to your letter in anticipation of receiving further guidance from the Department of Justice (DOI). Today, October 19, 2008, the DOY issued guidance intended to clarify its policy regarding the prosecution of individuals, involved in the manufacture, distribution and possession of marijuana. Although the guidelines do not specifically address the prosecution of doctors completing state marijuana forms, we belive thatthe {uidelines nevertheless are helpful in responding to your inquiry. The guidelines are attached for your Under the Controlled Substances Act (CSA), marijuana is a schedule I controlled substance. As the (CSA states, and as the United States Supreme Court has reiterated, schedule I controlled substances hhave “a high potential for abuse," ‘no currently accepted medical us in tealment in the United Stats," and a "lack of accepted safety for use. under medical supervision." 21 U.S.C. § 812(0); United States ¥. Oakland Cannabis Buyers! Cooperative, 32 US. 483,491-$92 (2001), [No schedule I controlled substance, including marijuana, has been approved bythe Food and Drug ‘Administation (FDA) for medical use. Accordingly, human consumption of marjusna (or any her schedule I substance) is prohibited. The only exception isthe use of marijuana as a part of FDA- approved research, where the researcher is registered withthe DEA. Oakland Cannabis Buyers! Cooperative, 832 US. at 491 ‘The CSA prohibits the knowing or intentional deliver ordstibution of any controled substance except as authorized by the Act. 21 U.S.C. § 841()(1). Accordingly, any knowing or intentional delivery o distribution of marijuana (or anyother schedule I controlled substance) forthe purpose of human consumption - other than by a DEA repitant acting pursuant to a FDA-authorized research rotocol- violates section 841(8)(1) ofthe CSA.A. Gunn Page 2 1onsr2008 Furthermore, ay person who "ais, abets, counsels, commands, induces, or procures” the commission ofa violation ofthe CSA provisions governing marijuana isin violation of federal law. 18, USCC. § 2(). Likewise, "[s}ny person who attempts or conspres to commit any (CSA] offense isin violation of federal law.21 U.S.C. § 846, ‘The Supreme Cours holding in Oakland Cannabis Buyers' Cooperative, supra, makes it clear that there is no “medical necessity" exception to the foregoing provisions ofthe CSA; nor ist of any legal ‘consequence thatthe illegal marijuana activity takes place ina state that has legalized such conduct for purposes of state law. See also Gonzales». Raich, 54US. 1 (2005) (ejecting clam that purportedly intrastate manufacture and distefbuton of marijuana, allegedly in compliance with California la, is bbeyond Congress's authority under the Commerce Clause). Thus, othe extent that California aw permits conduct prohibited by the CSA, itis preempted by federal lw to the contrary. Raich, 54 U.S. at 27-28 ‘We recognize thatthe 98 Cireuit has concluded tha: a physician's recommendation of marijuana to histher patient is protected speech under the First Amendment. Conant v. Walters, 309 F34 629 (9th Ci 2002), cert. denied $40 U.S. 946 (2003). Further, to ensure that there is no encroachment upon such speech, the 9* Circuit has upheld a district cour order enjoining the Federal govemment fom "() revoking any physician class member's DEA regstatien merely because the doctor makes a recommendation for the use of s medical marijuana based on a sincere medical jadgment and (i) from initiating any investigation solely on that ground.” I, euoting Conant v. McCaffery, 2000 WL 1281174 (ND. Cal). The Conant decision is sited law inthe 9 Cireit; however, the reasoning in Conant has ‘not been adopted in the other Federal circuit, ‘The Conant decision has limited application othe circumstances posed here. Is decision is premised upon the need to preserve open and frank communications between a physician and hisher Patient. Conant, I. at 635-638. The communication described in your July 8, 2008, eter is not between a VA physician and hisher patient, but rather between a VA physician and a state entity. The physician i responding to questions posed by a state enity in is offi physician the patient's suitability to participate in the state's marijuana program. While seeking to protect the physician-patent relationship by upholding the district court order, the Conant Court made clear thatthe order "didnot enjoin the govemnmeat fram prosecutin physicians when government officials in good faith believe that they have "probable cause to charge under the federal siding and abetting and/or conspiracy statutes." at 635, quoting Conant v. McCaffrey, 172 F.R.D. 681, 701 (ND. Cal. 1997). Itstated that "if, in making the recommendation, the physician intends forthe patent 'o use it 5 a means for obtaining marijuana a a prescription is used fora patient to obtain a controlled substance, then a physician would be gult of aiding and abeting the violation of federal law. * Id. at 6635 (emphasis added). Similarly, "[a) doctor would ad and abet by acting withthe specific inten to provide a patient with the means to acquire marijuana.” /d, at 636 ‘The CSA contains no provision that would exempt from criminal sanctions individuals who ‘knowingly o intentionally manufacture, distribute, dispense or possess with the intent to ‘manufacture, distribute or dispense marijuana in violatien of 21 U.S.C.§ 841(@)(). Nor does the CSA exempt from criminal sanetions individuals who aid and abe, or conspire to commit, such Violations. Therefor, a physician who acts with the “specific intent to provide the means” by whichWill A. Gunn Page oris72009 his/her patient may obtain marjuara does so in violation of 21 US.C. 841(a)(D), and is subject tothe ‘enforcement provisions of the CSA. ‘The decision to pursue a prosecution of @ VA physician for completing and submitting a state ‘marijuana form on behalf of a patent ies within the broad discretion of the US. Attomey's Office with venue over the unlawful conde, Investigative resources as well as the facts surrounding a particular case dictate whether DEA would pursue such an investigation. Consistent with the recently issued DOJ medical marijuana policy, however, DEA remains committed to the enforcement ofthe Controlled Substances Actin all states, ‘Thank you for seeking DEA'sirput regarding this matter. Ifyou have any further questions, or ‘would like to discuss this mater fuer, please contact me at (202) 307-7324, or Associate Chief ear tee ff — Donna C. Sanger Deputy Chief Counsel Operational LawUS. Department of Justice S Oice of the Deputy Ano-ney Generat Ocsober 19, 2009 MEMORANDA EDR SE J5ED UNITED STATES ATTORNEYS x 3d a HOM: avis Osa Deputy Aterey General SUBIFCT: — Investigations and Prosecutions in States This memorandum prevides crifcation and guidance to Federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in thee Substantive provisions and inthe extent of tate repultory oversight, both mong the enacting States and among loca jurisitions within those Sates. Rather than developing differen tvidoines for every posible vacant of tal ed local aw this mimorkraum provides unifom _uidance to foes federal invesigaions and prosecutions in these States on core federal enforcement priorities, ‘he Department of Justice is comic tothe enforcement af the Controed Substances Ac inal Stes. Congress aa detorminad that marijuana ia dangerous drug. andthe lege! Uistibuion an sue of matjuan i serious erie and provides significant source of revenue 'o lange-scle criminal enterprives. gangs, und catls. One timely example underscores the Importance of our eff wo prosectsesigaiicant mariana alickes: marljuane disbution the United States remains dhe single largest sours of revenue forthe Mesican eens, The Department is aso commited o making elicent and ational use of its ied {nvenigatve and prosecutorial resources. tn genera, United Sates Attomeys ae vested with plenary authority with regard to federal criminal mtr” within ther discs, USAM 9-2 O01 In evercising this authority, Sted States Atomeys ae “iavested by statute and delegation from ‘he Attomey General with ie broadest diseretion i the enerise of such aor.” A. Th authority should, of cous, he eneresed consistent wth Departient priors and guidance he proseeuton of sgniicunt ralickers olga! drugs, including mariana, and the lisruption of illegal dry mamottcturing and waffcking newark continu to bea cure pry inthe Departments efforts against narcotics and dangerous drug, andthe Departments ‘investigative and prosecutorial resources should be directed towards these vbjecives Asa ‘snr mater, pursuit of thse priori should ot Lacs federal resources in you State on“Memorandon for Selected United States Attorneys Page: Subjoc: Investigations and Proseeuions in Sat Authoring the Medical Use of Marijuana individuals whose actions ae in clear and unamhiguous compliance With existing sta laws providing for the medical use of marijuana, For example, proscetion of individuals wih exer ‘rother serious illness who use marijuana a pot ofa yeeommendd eaiment given ‘consistent with applicable stat las or those caregivers in clest and unargnous compliance with essing state aw who provide such individ with marijuana, i unlikely to Bean efficient, use olimied federal resources. On the eee hand, prosecution of eommerval ener tht nla market an sel marijuana for prot eontinves to bean enforcement pron ofthe Department. To be sre claims of compliance with sae or loca aw may mask operons inconsistent with he ters. conditions, ee porosesof those ls, and Federally enforement should othe deterred by such assertions when atherise pursuing the Departmen ore ‘enforcement priorities ‘Topieally, when any ofthe fellowing characteristics is present, the conduct wll not bein clear and unambiguous compliance with applicable ste law and may indicate egal drug, tnllcking activity of potential federal intrest Lunlafial possesion or unit use of fren Violen sales to minors; Financial and marketing activities inconsistent with the ters, conditions, oF purposes oF satel, ineluing evidence of money laundering atviy andor Roni yas oF essesive amounts of cash inconsistent with purported compliance wih ae ot eel ls ‘+ amounts oF marina ineonssent with pureed compliance with state ola at: 1 illegal possession or sle of ther conrlid substances; oF + tiesto ther criminal enterprises. Ofcourse, no State can authorize violins of federal la, and the ia of Fatt above i not intend to desribe exhaustively when federal prosecution maybe warned, ‘Accoinuly. in prosecutions under the Conralled Substances Act, feral rusceon ae mt expected i charge pave. o ocrwisecxablish ny state la violations, Indeed his mmemarandum dees tot als in any way the Deparment aor to enor eal including laws prohibiting the manufature, production, isiibtion, possession, owe of ‘marijuana on federal property. This guidance regarding resource allraion docs not Ieqalize” ‘marjuana or provide egal defense to violation of fede! law, nari intended to crate ay privilepes, benefits, o rights, substantive of procedural, enforceable by any individual, party or ‘wie in any admis, evi oe criminal mate. [Nor does clear and unamnbigoses compliance wit state law orth absence of one o al ofthe above factors cca a eal defense toa violation ofthe Contoled Substances Act. Rather, this memorandum i intend solely 288 bide 1 the exeris of investigative and prosecutorial discretion,Memorandums fo Secced United States Auoreys Page 3 Subject: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana Finally. nothing herein precludes investigation or prosecution where thee is a reasonable bess to believe that compliance with state la is beng invoked 35a pete for he production or Airibuion of manijuana foe purposes nt authorized by site laws. Nor dos this guidance rece investigation or prosecution, even when the is clear and unambiguous compliance with existing sate lav, inpanicular cieeumstances where investigation a prosecution olherise serves important fr ineests, ‘Your offices should continue to review marijuana cases for prosscution on # ese-y-case tests consistent wih the guidance on reuse alloation and esa! pies st fon her the consideration of requests for ledeal asssance fom sat and lel aw enfgement uorites and he Principles of Feral Vrosevtion ce: All Und Sates Attomeys Lamy A. Breer Assistant Astomey Genera (Criminal Dission 1B. Todd Jones United States Adomney District of Minnesots Chai, Attormey General's Advisory Commitee Michele M, Leona, ‘Acting Administrator aug Enforcement Administration 1H Marshal Jaret Director Executive OMe for United States Anomeys Kevin La Perkins Assan Dirstor Criminal tnvesigative Divison Federal Bureau of Investigation