Texas Compassionate-Use Act: What You Need To Know

By | November 1, 2018

You might have heard that marijuana is legal in Texas now. That is not entirely true, but the devil is in the details.

In 2015, the Texas Legislature passed the Texas Compassionate-Use Act.  This act permits a dispensing organization which has been licensed by the Department of Public Safety to dispense low-THC cannabis.

What is low-THC cannabis?

The answer is that it is marijuana, or anything made from the plant that contains not more than 0.5% by weight of tetrahydrocannabinols; and not less than 10% by weight of  cannabidiol. (Texas Occupations Code section 169.001 (3)).

“Who can a doctor prescribe it for?” The answer is: “a patient with ‘intractable epilepsy.”

“What is “intractable epilepsy?” It’s a seizure disorder in which the patient’s seizures have been treated by two or more appropriately chosen and maximally titrated antiepileptic drugs that have failed to control the seizures. (Texas Occupations Code section 169.001 (2)).  In plain English, it means somebody with really, really bad epileptic seizures that have not responded to heavy-duty antiepileptic drugs.

Who can prescribe this low-THC cannabis?

Only a physician qualified to prescribe it can do so. To become qualified, the physician must be licensed to do so under the Texas Occupations Code; must dedicate a significant portion of his clinical practice to the evaluation and treatment of epilepsy; and is certified by the American Board of Psychiatry and Neurology in epilepsy, neurology, child neurology, or neurophysiology. (Texas Occupations Code section 169.002 (b)). Not only must a physician be qualified, the physician must have registered as a prescriber  for the patient with the compassionate-use registry maintained by the Texas Department of Public Safety.

Does it seem like the Texas Legislature is not just shutting the door to legalized marijuana, not just slamming the door, not just locking the door, not just bolting the door shut, but actually welding the door to the door frame? It does to me. But I digress.

To what patients may a qualified physician prescribed the low-THC cannabis?

The answer is that the patient must be a permanent resident of Texas; must suffer from intractable epilepsy; the physician must determine that the risk of the medical use of low-THC cannabis by the patient is reasonable in light of the potential benefit for the patient; and  a second physician who is also qualified to prescribe the low-THC cannabis agrees with the first doctor’s opinion. (Texas Occupations Code section 169.003).

Exactly how a physician will know that a patient is a permanent resident of Texas is an interesting question. What proof of permanent residency is a doctor supposed to have? A birth certificate? Utility bills from every place the patient has lived in Texas? A sworn statement that the patient writes promising not to leave the state? The legislature doesn’t want out-of-staters wandering into Texas to scoop up low-THC products, but why?

What else does the law require of the doctor?

Texas law requires a qualified, registered physician to maintain a patient treatment plan that indicates the dosage, means of administration, and planned duration of treatment for the low-THC cannabis. The plan must further detail how the patient’s symptoms will be monitored. And the plan must further spell out how indicators of tolerance or reaction to low-THC cannabis will be monitored. (Texas Occupations Code section 169.005). To get registered, a physician would have to go to this link: https://curt.dps.texas.gov/app/application/physicianEmailInvitation.xhtml.

What if I am a qualified, registered physician whose patient has intractable epilepsy and I have another equally qualified physician who agrees with my treatment plan. Am I good to prescribe the low-THC cannabis?

Truth be told, I would be a little nervous if I were a physician, even if I complied with all of these Texas laws. Why? Because marijuana is still illegal under federal law and it is the United States Drug Enforcement Administration that permits me to write prescriptions for other controlled substances. I do not want to mess around with those guys.  Federal law defines “marijuana” as “all” parts of the plant Cannabis sativa L., Whether growing or not. This includes the seeds, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. (21 U.S.C. 802(16)).

To complicate things even more, the Texas Department of State Health Services (DSHS, pronounced “dishes”) had a proposed protocol that would have required all food and supplements containing cannabidiol oil removed from Texas store shelves.  The curious thing is: why did DSHS get involved at all, when the legislature only authorized the Department of Public Safety to administer the Texas Compassionate-Use Act? (Tex. Health & Safety Code sec. 487.051.)  In any event, DSHS  pulled its proposed protocol after getting a lot of public feedback.

Nonetheless, four physicians in Austin (as of the time I’m writing this) have registered with DPS. No doubt, these doctors have dotted their legal “i”s and crossed their “t”s.  Just the same, they are brave souls, and deserve praise because they are putting their patients’ needs first.

The bottom line is that federal law prohibits the possession of marijuana, regardless of the form. State law permits under very tightly defined and regulated circumstances, prescriptions for low-THC oil.

More to the point, you can’t use it to get high. Still, even a baby step in the right direction is better than a step in the wrong direction.