Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2018 No. 8 - Nov 21 2018
Attorney General

MARIJUANA—RETIREMENT, LEOFF—COUNTIES—DISABILITY—Authority Of A City Or County Disability Board To Reimburse LEOFF Plan 1 Members For Their Authorized Use Of Medical Marijuana

1.         A city or county disability board may permissibly reimburse LEOFF Plan 1 members for their authorized use of medical marijuana, if that use is properly authorized and if the board determines use of marijuana is medically necessary.

2.         The potential effect, if any, of a board’s reimbursement decision on city or county eligibility for federal funding depends on federal policy and the conditions of specific federal grants.

November 21, 2018

The Honorable Joseph A. Brusic
Yakima County Prosecuting Attorney
128 N Second Street Room 329
Yakima, WA 98901

 

Cite As:
AGO 2018 No.8

Dear Prosecutor Brusic:

            By letter previously acknowledged, you have requested an opinion on a question we have paraphrased and addressed as two questions:

1.         Does Washington law permit a city or county disability board to reimburse LEOFF Plan 1 members for their authorized use of medical marijuana?

2.         If a city or county disability board reimburses a LEOFF Plan 1 member for the member’s authorized use of medical marijuana, does that jeopardize the city’s or county’s eligibility for federal funding?

BRIEF ANSWERS

            1.         Yes. A city or county disability board may permissibly reimburse LEOFF Plan 1 members for their authorized use of medical marijuana if that use is authorized by a health care professional, and if, in the board’s discretion, it determines that the authorized use of medical marijuana is medically necessary.

            2.         We cannot definitively answer this question because the answer depends on fluctuating federal law enforcement policy and the conditions of the specific federal grants at issue. That said, over 30 states now authorize the use of marijuana for medical reasons, and we are

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unaware of any example of the federal government denying a grant to a state or local government on the basis of its authorization of medical marijuana use.

ANALYSIS

1.         Does Washington law permit a city or county disability board to reimburse LEOFF Plan 1 members for their authorized use of medical marijuana?

            The Washington Law Enforcement Officers’ and Firefighters’ Retirement System Act, RCW 41.26, establishes an actuarial reserve system to pay death, disability, and retirement benefits to Washington law enforcement officers, firefighters, and their beneficiaries. RCW 41.26.020. Two retirement plans exist under the Act: LEOFF Plan 1, for persons who became members of the retirement system before October 1, 1977; and LEOFF Plan 2, for persons who became members on and after that date. RCW 41.26.030(22), (23). LEOFF Plan 1, the plan at issue in your question, creates city and county disability boards, which are empowered to act on, approve, and disapprove all disability claims by individuals covered under LEOFF Plan 1 and employed by, respectively, Washington cities and counties. RCW 41.26.110.

            When a LEOFF Plan 1 member requires medical services and meets other requirements set by the Act, “the employer shall pay for the active or retired member the necessary medical services not payable from some other source[.]” RCW 41.26.150(1). Disability boards “shall designate the medical services available to any sick or disabled member.” RCW 41.26.150(1)(b). Such medical services for LEOFF Plan 1 members “shall include” several categories of services “as minimum services to be provided. Reasonable charges for these services shall be paid in accordance with RCW 41.26.150.” RCW 41.26.030(20). Minimum reimbursable services include “charges for the following medical services and supplies: Drugs and medicines upon a physician’s prescription[.]” RCW 41.26.030(20)(b)(iii)(A). A city or county disability board may choose to pay for medical services beyond those listed in RCW 41.26.030(20) (and must designate the services they choose to provide), but must pay for at least the services listed in that section.

            The Washington legislature has enacted a comprehensive statutory framework, enforced by strict regulation, for the lawful medical use of marijuana. See generally RCW 69.50; RCW 69.51A; WAC 246-70 to WAC 246-72; WAC 314-55-080, -430 (regulations promulgated by the Washington Department of Health and the Washington Liquor and Cannabis Board). The Medical Marijuana Authorization Form, standardized by the Washington Department of Health, must be completed by the authorizing healthcare practitioner for a patient to lawfully obtain medical marijuana, per RCW 69.51A.030(3). That authorization form requires an authorizing healthcare practitioner to attest that, because a patient has one or more terminal or debilitating medical conditions that is severe enough to significantly interfere with the patient’s activities of daily living and ability to function, the patient may benefit from the medical use of marijuana. The healthcare provider completing the authorization form must have an established patient relationship and meet the other requirements in RCW 69.51A.030(2)(a).

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            The LEOFF Plan 1 statutes require reimbursement only for medicines if provided pursuant to prescription. Under RCW 41.26.030(20), “[r]easonable charges for [certain minimum] services shall be paid in accordance with RCW 41.26.150.” Such minimum services include “[d]rugs and medicines upon a physician’s prescription[.]” RCW 41.26.030(20)(b)(iii)(A). An authorization by a healthcare provider for a patient to lawfully obtain marijuana for a medical use is not a “prescription” under state law. Green Collar Club v. Dep’t of Revenue, 3 Wn. App. 2d 82, 98, 413 P.3d 1083 (2018). Thus, reimbursement for medical marijuana would not fall under the definition of “minimal services” that must be reimbursed.

            This does not end the inquiry, because city and county disability boards have discretion to authorize payment for services beyond the minimums of RCW 41.26.030(20), as long as the boards determine those services to be medically necessary. Washington courts have held that disability boards have wide discretion either to approve the payment of necessary medical services beyond those listed in RCW 41.26.030(20), or to deny payment for medical services not listed in RCW 41.26.030(20) if it deems them not medically necessary.

            A LEOFF Plan 1 disability board “may designate medical services beyond those listed in RCW 41.26.030(20) as reimbursable.” Snohomish County Fire Dist. 1 v. Snohomish County, 128 Wn. App. 418, 420, 115 P.3d 1057 (2005); see also Stegmeier v. City of Everett, 21 Wn. App. 290, 294, 584 P.2d 488 (1978) (“RCW 41.26.030[(20)] defines ‘medical services’ as certain minimum services and the Board has the discretion to pay for more than these minimum services.”). In Snohomish County Fire District 1, the Snohomish County Disability Board promulgated a set of rules providing for payment of preventive dental services, such as check-ups and teeth cleanings. Snohomish County Fire Dist. 1, 128 Wn. App. at 421. Among the issues before the court was “whether the Board may approve reimbursement for medical services beyond those enumerated in RCW 41.26.030[(20)] that are preventive in nature and not necessitated by a present sickness or disability.” Id. at 422. The court rejected the argument that any additional medical benefits, beyond the minimums listed in RCW 41.26.030(20), must be “necessitated by a present sickness or disability.” Id.at 423-24. Instead, the court held, the “Board has the discretion to determine what additional medical services are medically necessary,” id. at 424, and to approve payment for those services as long as they are medically necessary, id. at 425. While the court observed that RCW 41.26 does not define what medical expenses are “necessary,” it found reasonable the board’s argument that “spending money on preventative services would prevent unnecessary medical expenses.” Id. at 425.

            In addition, this office has consistently advised that, under Stegmeier, RCW 41.26.030(20)’s definition of “‘medical services’ . . . only lists the minimum medical services to be provided and paid for by the member’s employer or former employer. Services other than those listed in the statute may also be ‘necessary medical services’ and thus may be designated by the LEOFF disability board[.]” AGO 1985 No. 7, at 2-3; AGO 1980 No. 18, at 2; see also AGO 1986 No. 12, at 6 (“RCW 41.26.150 does allow the local disability board some discretion in determining which services are ‘necessary medical services.’”).

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            We note that the Stegmeier court upheld a city disability board’s decision not to pay for a member’s medical bill for prescription eyeglasses. The court held that eyeglasses were not expressly listed among the minimum services of RCW 41.26.030(19) for which payment was required. Stegmeier, 21 Wn. App. at 293-94. The court observed that the disability board had previously exercised its discretion by paying for prescribed eyeglasses for other members, but held that its decision not to pay for the eyeglasses of the member in question was supported by “due consideration to the facts and circumstances” of the member’s request for payment. Id. at 295. Stegmeier, therefore, further illustrates the discretionary nature of disability boards’ decisions whether to reimburse medical expenses beyond the minimums of RCW 41.26.030(20).

            Thus, the approval of additional expenses that are deemed medically necessary is fundamentally a question of a disability board’s discretion. LEOFF Plan 1 disability boards act as quasi-judicial entities, such as when they determine whether applicants are entitled to a disability allowance. Malland v. Dep’t of Ret. Sys., 103 Wn.2d 484, 490, 694 P.2d 16 (1985). Courts review disability boards’ determinations of whether services are medically necessary for abuse of discretion. Snohomish County Fire Dist. 1, 128 Wn. App. at 426. The concept of discretion allows quasi-judicial bodies wide latitude to make decisions within the bounds of their statutory authority, as long as those decisions are not ultra vires and not otherwise expressly prohibited by law. E.g., State ex rel. Reilly v. Civil Serv. Comm’n of City of Spokane, 8 Wn.2d 498, 502, 112 P.2d 987 (1941) (“If the action of the commission is not palpably illegal, the court should not intervene.” (Internal quotation marks omitted.)).

            Here, as observed above, the Washington legislature has enacted a comprehensive statute governing the use of medical marijuana in this state. The statute requires that the medical use of marijuana be in “strict compliance” with the statute’s terms, RCW 69.51A.005(2), including furnishing designated marijuana providers with an authorization developed by the Department of Health, RCW 69.51A.005(2)(c). If such an authorization was duly completed for a LEOFF Plan 1 member, including a healthcare practitioner’s attestation that the member “may benefit from the medical use of marijuana” due to the diagnosis of one or more “terminal or debilitating medical conditions,” RCW 69.51A.005(2)(a), a local board could reasonably conclude that this constitutes a medically necessary service under Snohomish County Fire District 1. Moreover, Snohomish County Fire District 1’s holding that disability boards may approve reimbursement for medical services “that are preventive in nature and not necessitated by a present sickness or disability,” Snohomish County Fire Dist. 1, 128 Wn. App. at 422, applies a fortiori here, where the facts supplied with your question indicate that the LEOFF Plan 1 member in question has a malignant form of cancer.[1] A cancer diagnosis is certainly a “present sickness or disability,” and is one of the “terminal or debilitating medical conditions,” RCW 69.51A.010(24)(a), for which a health care professional may provide a medical marijuana authorization, RCW 69.51A.030(2)(b).

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            To comply with RCW 41.26 and the above cases, the disability board should expressly determine whether the authorized use of marijuana is medically necessary given the member’s current condition. It should also make clear the circumstances under which the disability board will and will not reimburse members for their authorized use of marijuana. If these conditions are met, we believe that reimbursement for the LEOFF Plan 1 member’s medical use of marijuana would be permissible under Washington law.

2.         If a city or county disability board reimburses a LEOFF Plan 1 member for the member’s authorized use of medical marijuana, does that jeopardize the city’s or county’s eligibility for federal funding?

            Federal law currently prohibits marijuana use for any purpose, including medical uses. 21 U.S.C. § 812(b)(1)(A) & Sched. I (c)(10); 21 U.S.C. § 841(a)(1); 21 U.S.C. § 843(a)(1). Nonetheless, over 30 states authorize the use of marijuana for medical purposes.

            As you are likely aware, federal law enforcement policy regarding marijuana has undergone significant changes in the recent past. Notwithstanding marijuana’s listing as a Schedule I controlled substance, the United States Department of Justice under Attorney General Eric H. Holder, Jr. observed a policy that did “not focus federal resources in [the] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”[2] Effective January 4, 2018, however, Attorney General Jefferson B. Sessions, III rescinded these guidance memos in favor of an approach that “require[s] federal prosecutors deciding which cases to prosecute to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General[.]”[3]

            Given these fast-moving and unpredictable changes to federal marijuana enforcement policy, it is impossible to say for certain what impact, if any, a disability board’s decision to reimburse members for medical marijuana would have on its jurisdiction’s eligibility for federal funding. That said, despite dozens of states allowing medical marijuana use, we are unaware of any example of a federal grant being denied to a state or local government on the basis that its jurisdiction allowed the use of medical marijuana.

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            Some guidance, which may be helpful to you, is provided by South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), which sets forth the circumstances under which Congress may, in the exercise of its spending power, impose conditions on state recipients of federal funds. These constitutional requirements have been summarized as:

(1) the exercise must be in pursuit of the general welfare, (2) any conditions placed on the funds must be unambiguous, (3) the conditions may be illegitimate if they are unrelated to the federal interest in particular national projects or programs, and (4) there may not be an independent constitutional bar to the conditions imposed.

Am. Civil Liberties Union v. Mineta, 319 F. Supp. 2d 69, 79 (D.D.C. 2004) (citing Dole, 483 U.S. at 207-08). In Mineta, the court considered the constitutionality of a section of a congressional appropriations bill that prohibited making federal mass transit funds available to “any Federal transit grantee . . . involved directly or indirectly in any activity that promotes the legalization or medical use of any substance listed in schedule I of section 202 of the Controlled Substances Act (21 U.S.C. 812 et seq.).” Mineta, 319 F. Supp. 2d at 75 (internal quotation marks omitted). As part of the plaintiffs’ advocacy for the reform of marijuana policy, they placed advertisements relating to marijuana laws and policy on Washington, D.C.’s public transportation system, WMATA, which was a federal mass transit grantee. WMATA rejected the plaintiffs’ advertisement because it was concerned about jeopardizing its federal funding. Id. The court granted the plaintiffs’ request for a permanent injunction against the section’s language, holding that while “the connection between the funding restriction and the purpose of the funding does not have to be particularly closely related to withstand a challenge,” id. at 80, the First Amendment’s prohibition on viewpoint discrimination (i.e., against advertisements that promoted decriminalizing marijuana) was an “independent constitutional bar” that rendered the section unconstitutional under Dole, id. at 86-87.

            The answer to your question may depend in part upon both the exercise of discretion by federal officials and the specific terms of the federal grants in which Yakima County participates. We therefore cannot reliably assess whether the Yakima County disability board’s reimbursement of LEOFF Plan 1 members for their authorized use of medical marijuana would jeopardize the County’s eligibility for federal funds. If any of Yakima County’s federal grants include specific terms relating to the use of marijuana, the holdings of Dole and Mineta may provide guidance in evaluating whether such conditions would pass constitutional muster.

            We trust that the foregoing will be useful to you.

ROBERT W. FERGUSON
Attorney General

STEPHEN T. FAIRCHILD
Assistant Attorney General

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[1] Indeed, even the Snohomish County Disability Board, which opposed having to reimburse LEOFF Plan 1 members for preventive services, argued that additional medical benefits beyond RCW 41.26.030(20)’s minimums “must be necessitated by a present sickness or disability.” Snohomish County Fire Dist. 1, 128 Wn. App. at 423-24.

[2] Memorandum from David W. Ogden, Deputy Att’y Gen., U.S. Dep’t of Justice, to Selected United States Attorneys, Re: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (Oct. 19, 2009), https://www.justice.gov/archives/opa/blog/memorandum-selected-united-sta... see also Memorandum from James M. Cole, Deputy Att’y Gen., U.S. Dep’t of Justice, to United States Attorneys, Re: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use, at 1 (June 29, 2011), https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/dag-gu... (“it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law”).

[3] Memorandum from Jefferson B. Sessions, III, Att’y Gen., U.S. Dep’t of Justice, to All United States Attorneys, Re: Marijuana Enforcement (Jan. 4, 2018), https://www.justice.gov/opa/press-release/file/1022196/download.