ASA in the News

By Steph Sherer for The Hill

John Flickner, a 78-year-old, wheelchair-bound senior, is a certified medical cannabis patient in New York, who consumes cannabis from a vaporizer to avoid having to use the types of opioids that kill more than 115 Americans every day. Earlier this month Flickner was evicted from his home in a federally subsidized building in Niagara Falls, NY and lost access to doctors and transportation due to his use of medical cannabis to treat post-injury back pain and muscle spasms that make it difficult for him to breathe.

Flickner’s eviction into 28-degree weather is the result of federal laws and policies that conflict with NY state laws regarding medical cannabis. While 33 states have comprehensive medical cannabis programs and a total of 47 states have programs that allow some form of medical cannabis, Congress has yet to pass laws to legalize the medical use of cannabis at the federal level and the current Administration has yet to implement medical cannabis safeguards for patients through executive agencies like the U.S. Department of Housing and Urban Development (HUD).

Where does that leave suffering patients who qualify for subsidized housing? In John Flickner’s case, the freezing cold. More broadly, patients are forced to decide between staying in their homes and taking potentially addictive and potentially lethal pain pills, or risking their homes in order to use a safer alternative legally recommended by a doctor. One HUD administrator felt compelled to weigh in on Dec. 9: “State & federal law needs to catch up with medicinal marijuana usage and require private landlords to legally permit the same. Period,” tweetedLynne Patton, who oversees HUD Region II (New York and New Jersey).

Current federal policies inflict additional suffering on our country’s most vulnerable residents. Federally subsidized housing helps low-income Americans find homes in otherwise unaffordable areas. Those in subsidized housing are the least able to withstand and recover from economic shocks and hardships – like suddenly finding themselves homeless.

A February 2011 HUD memorandum interpreting the Quality Housing and Work Responsibility Act (QHWRA) of 1998 explicitly directs public housing agencies to “establish standards and lease provisions that prohibit admission into the [public housing] and [housing choice voucher] programs based on the illegal use of controlled substances, including state legalized medical marijuana.” The memo correctly notes that “State laws that legalize medical marijuana directly conflict with the admission requirements set forth in QHWRA and are thus subject to federal preemption.”  

HUD guidance requires Public Housing Authorities to establish occupancy standards and lease provisions that allow landlords to terminate assistance for use of a controlled substance. Landlords currently can not affirmatively permit the use of controlled substances, but housing authorities do have discretion to determine, on a case-by-case basis, when it is appropriate to terminate current residents’ tenancy based on medical cannabis use.

To be clear, Niagara Towers was not legally required to evict Flickner. Public housing agencies are required to bar the admission of new residents who are medical cannabis patients. They are required by QHWRA to establish occupancy standards and leave provisions that will allow the PHA to terminate assistance for use of a controlled substance (including medical cannabis), but they are not compelled to do so.

Nearly a week after being kicked out of his home, Flickner was informed that he would be welcome to move back to his old apartment at Niagara Towers. That meant he would not have to spend another night in a homeless shelter. Yet, Flickner did not at that time receive assurances that he could use his doctor-recommended cannabis and would not face re-eviction for doing so. A statement from the company that runs Niagara Towers simply stated that the company was “revisiting [its] policy for this evolving issue.”

John Flickner’s story is not a unique one. Individuals all over the country are being evicted despite being compliant with state law in the state where they reside. Medical cannabis patients deserve the same rights and protections against discrimination as any other citizen. Congress and HUD’s continuing failure to reconcile state and federal law to allow qualified individuals to use medical cannabis in federally subsidized housing is an affront to decency. Patients’ health, well-being and housing status cannot be left to the whims of private companies worried about losing federal funds.

It is my hope that this holiday season those providing HUD housing utilize their federally granted discretion and show compassion towards people, like  Flickner, that need this medicine and are legally abiding by state law.