HUD Issues Memo on Use of Marijuana in Multifamily Properties
On Mon., Dec. 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued this memo, “Use of Marijuana in Multifamily Properties,” on the use of medical marijuana in HUD senior housing and other multifamily communities.
The memo was issued due to questions concerning the use of marijuana in HUD properties in states, such as New York, that allow the use of medical marijuana.
The Department of Health (DOH) released proposed regulations governing the use of medical Marijuana under the recently enacted Compassionate Care Act. The DOH website on medical Marijuana is available here, and the full text of the proposed regulations is available here.
The HUD notice clarifies that while the use of marijuana is illegal under federal law, HUD multifamily owner/operators have discretion on developing policies and procedures when not to evict a resident for marijuana use under certain conditions.
The policy specifies that HUD owners must deny admission to any applicant (or member of the household) that is illegally using a controlled substance, including marijuana. In addition, owners must develop policies which “allow the termination of tenancy of any household with a member who is illegally using marijuana or whose use interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.” Further, owners may not establish lease provisions or policies that affirmatiely permit occupancy by any member of the household who uses marijuana. Yet, the notice provides owner/operators the discretion to determine, on a case-by-case basis, when it is appropriate to terminate, or not to terminate, tenancy for use of marijuana.
In the prosed NYS regulations the conditions that allow a patient to access marijuana as a medical therapy are: cancer, HIV/AIDS, Lou Gehrig's disease (ALS), Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies and Huntington's disease. The law includes these conditions when there is a clinical association with or complication of the condition resulting in cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms.
There is some question at this time as to how the “vaporization” regulations may correspond and/or conflict with smoking policies in senior congregate living settings. The proposed regulations states: “Approved medical marihuana products shall not be vaporized in a public place. In no event shall approved medical marihuana products be consumed through vaporization in any location in which smoking is prohibited.”
Specifically regarding the “vaporization” of marijuana in nursing homes, the regulations state: “general hospitals and residential health care facilities as defined in article twenty-eight of the public health law, and other health care facilities licensed by the state in which persons reside; provided, however, that the provisions of this subdivision shall not prohibit vaporization by patients in separate enclosed rooms of hospitals, residential health care facilities, and adult care facilities established or certified under title two of article seven of the social services law, community mental health residences established under section 41.44 of the mental hygiene law, or facilities where day treatment programs are provided, which are designated as smoking rooms for patients of such facilities or programs.”
The proposed state regulations allow for “vaporization” of marijuana in “separate enclosed rooms” in certain health care facilities and would seem to allow the same practice in senior housing.
LeadingAge NY will continue to track developments concerning the use of marijuana in HUD senior housing properties.
Contact: Ken Harris, kharris@leadingageny.org, 518-867-8835