Senate Approves Veterans Medical Cannabis Access, but 'Gag Order' Remains in Effect
November 11, 2015 | Allayne Sherer
On Tuesday, the Senate approved the Military Construction and Veterans Affairs and Related Agencies (MilCon-VA) Appropriations Act for fiscal year 2016 which contained the Veterans Equal Access Amendment. If signed into law, the amendment would forbid the Veterans Administration from punishing V.A. doctors who write medical cannabis recommendations in states where it is legal to do so. However, the current "gag order" policy forbidding V.A. physicians from writing medical cannabis recommendations or even discussing the benefits of medical cannabis therapy, known as VHA Directive 2011-004, remains in place for the time being.
Changing the policy could take place through some combination of Congressional action and/or revising the policy internally at the V.A. It's important to note from the outset that Directive 2011-004 is set to expire at the end of 2015. At that point, the V.A. could reissue the directive, issue a new directive with a different policy on medical cannabis, or (however unlikely) simply let it expire without a replacement policy. The most likely outcome seems to be a revised policy. In spite of the "gag order" nature of Directive 2011-004, it was actually an improvement upon the previous policy which allowed the Administration to deny health care to veterans enrolled in state medical cannabis programs. Despite this improvement from the pre-2011 policy, the current directive still puts veterans at a disadvantage by having to go out of network and out of pocket to see a doctor if they require medical cannabis therapy. Of course, any change in policy would have to conform to whatever budget riders are attached the MilCon-VA Appropriations bill, but the likelihood of the amendment language becoming law is slim.
While the Senate version of the MilConVA bill contains Veterans Equal Access Amendment that was offered by Senators Daines (R-MT) and Merkley (D-OR) and was added in committee by a vote of 18-12, the language does not appear in the House version of the bill, where the amendment was narrowly defeated by a floor vote of 210 - 213. Considering Republicans control both the House and Senate, it seems unlikely that Senate Judiciary Ranking Member Mikulski (D-MD) will be able to successfully negotiate to keep the language in the final bill that makes it way to the President's desk. Had the amendment passed both the House and Senate, the language would be all but assured to be included.
With the directive set to expire at the end of the year, the most likely way for the "gag order" to be lifted is through the V.A. issuing a new directive that removes it. However, the V.A. could issue an unsatisfying improvement that allows V.A. physicians to discuss the benefits of medical cannabis, but still explicitly forbid them from writing recommendations in states that have medical cannabis programs.
Even if the V.A. were to take that "split the baby" approach, Congress could create access to medical cannabis through the V.A. by passing the CARERS Act. In addition to permanently ending the "gag order," CARERS would also end the federal crackdown on state legal medical cannabis programs and expand research opportunities. ASA encourages people to take action in support of CARERS by calling their Members of Congress.