California became the first state to legalize medical marijuana

Between November 2016 and May 2017, Jonathan Fruchter, a 37-year-old Navy veteran, was receiving care at a post-traumatic stress disorder inpatient clinic with the Lyons New Jersey Veterans Affairs Medical Center. His days started with a check-in meeting every morning at 8 a.m., then a brief break before group therapy sessions at 9 and 10 a.m. and again at 1 and 2 p.m.

After therapy, Fruchter would leave the VA grounds and head to a nearby park where he kept a stash of medical marijuana - made legal in New Jersey in September 2016 to treat PTSD - prescribed by a private-care physician. He’d find his pot wherever he hid it last, usually in a white paper bag in a flower bed, pack the buds into an apple he’d fashion into a pipe, and get stoned. Occasionally, he’d walk up to the fence outside the clinic while smoking, watching as the cloud wafted over the perimeter, before drifting onto federal property. On one side, the pot was a way for Fruchter to manage his PTSD, free of the side affects of his pill-heavy treatment plan. On the other, it was an illegal drug that could leave him with a misdemeanor charge or worse.

Depending on the day, Fruchter would pee into a cup for his urinalysis screening, administered weekly at the zero-drug-tolerance facility. When the results came back, he’d test positive for cannabis. But Fruchter was never reprimanded or kicked out of the program for violating its drug policy.

“While on federal property in a federal rehab program, can be allowed to use a federally illegal substance,” Fruchter told Task & Purpose by phone. “On a patient-doctor level, if this is what you want, it’s doable.” Through a combination of persistence, vague regulations, and an open-minded medical team, Fruchter had stumbled upon an unusual loophole in the VA’s approach to medical marijuana - one that is putting individual VA clinics at odds with the department’s publicly stated policy.

In the 21 years since California became the first state to legalize medical marijuana, 29 others, along with the District of Columbia, Guam, and Puerto Rico, have followed suit, legalizing medicinal cannabis amid a growing body of research indicating the health benefits of the drug. However, even within these states, the extent of legalization varies in terms of diseases that it can be used to treat and in what form. For instance, in New York, medical marijuana can only be used for “debilitating or life threatening conditions,” such as cancer, Huntington’s disease, and multiple sclerosis, and can only be ingested as a liquid, capsule, or with a vaporizer.

Still, under the Obama administration, it seemed like the decriminalization of the sticky green herb was a matter of when, not if. It was Obama’s Deputy Attorney General James Cole who issued guidance in 2013 stipulating that drug enforcement was already carried out at state and local levels and that the federal government should remain hands off, cementing a policy of “non interference” that enabled Colorado, Oregon, and Washington to launch their marijuana markets.

But with the Trump administration came Attorney General Jeff Sessions’ war on weed. In a number of memos, public statements at hearings, and letters over the last year, the former Alabama senator has made his opposition to the drug clear, and now he’s in a position to help push the pendulum away from legalization by going after state-run medical marijuana programs.

While pot remains a Schedule 1 substance - “drugs with no currently accepted medical use and a high potential for abuse,” according to the Drug Enforcement Administration - states remain free to pass laws allowing for the creation of recreational or medical weed programs. However, at the federal level, one government agency is facing mounting pressure to adopt a different position on the use of marijuana for medicinal purposes: the Department of Veterans Affairs.

The VA and its medical arm, the Veterans Health Administration - which provides healthcare services to more than 9 million enrolled veterans - have maintained consistent, but vague guidelines on medical pot. VA doctors cannot prescribe medical cannabis (often misconstrued to mean recommend, or even discuss); and the department must rely on the results of state research (the same state-run research currently in Sessions’ crosshairs) even though the VA has a federally approved study running in its backyard that it has so far chosen not to participate in.

But a change may already be coming to the VA, and instead of taking place in back rooms around Capitol Hill, it’s occurring at the doctor’s office with conversations between veterans and their physicians.

“While on federal property in a federal rehab program, [veterans] can be allowed to use a federally illegal substance.”

In states where medical marijuana is legal, the VA’s existing policy allows for veterans and their care providers to candidly discuss cannabis use as part of their overall treatment plan, and in some cases, even test positive on a urinalysis for the drug without consequence - many of the same official changes to VA policy that veteran service organizations have been aggressively advocating for in 2017.

Under VA policy, veterans who participate in state-approved marijuana programs won’t lose access to VA health care, however, due to the drug’s Schedule 1 classification, the VA doesn’t allow physicians to prescribe pot; fill out forms for veterans seeking to participate in state weed programs; or pay for the drug. Nor is its use permitted on VA grounds, hence Fruchter’s daily trips to the park to get high.

What leaves VA guidelines open to interpretation is what they don’t address. The VA doesn’t explicitly bar patients from discussing their medicinal weed use with their doctors. The policy even leaves room for physicians to alter a veteran’s treatment plan to account for their pot use, but stops short of stating exactly what that entails. When it comes to specifics on how this all plays out in a doctor’s office, the policy at large, and the VA in particular, are quite vague.

In response to repeated requests by Task & Purpose for clarification on how the policy works at the clinical level, the department stated that its position was “covered” in a May 31, 2017 statement VA Secretary David Shulkin made at the White House.

“My opinion is, is that some of the states that have put in appropriate controls, there may be some evidence that this is beginning to be helpful,” Shulkin said. “But until the time that federal law changes, we are not able to prescribe medical marijuana for conditions that may be helpful.”

A July 7 letter from Shulkin to Rep. J. Louis Correa, a California Democrat, expands on how the administration’s policy plays out on the ground:

@SecShulkin responded to my letter on #MedicalMarijuana. #Veterans can use #Marijuana in states where it is legal w/o risking VA benefits pic.twitter.com/H3gwKtoP5P

- Rep. Lou Correa (@RepLouCorrea) July 11, 2017

“The policy does not administratively prohibit Veterans who participate in State marijuana programs from also participating in VHA substance abuse programs, pain control programs, or other clinical programs where the use of marijuana may be considered inconsistent with treatment goals,” reads the letter, which references VHA Directive 2011-004 - the administration’s policy on access to clinical programs for veterans like Fruchter, who are in state-approved medical cannabis studies. (The directive cited in the July 7 letter expired Jan. 31, 2016, but officials with American Legion and Veterans of Foreign Wars explained to Task & Purpose that VA policy is to follow expired directives unless specifically told not to do so.)

Shulkin’s letter goes on to say: “If the Veteran is using medicinal marijuana, however, individual treatment plans need to be modified to account for that use, if doing so is clinically appropriate.”

And it’s this line - if doing so is clinically appropriate - that’s relevant for vets interested in state-legal medical pot, and not just those at inpatient clinics. The policy as it is described in the letter implies there’s a level of discretion, permitted by the most senior official at the VA, for doctors to make decisions based on what is in their patients’ best interest and to adjust their treatment plans accordingly.

In Fruchter’s case, he and his care providers at the Lyons VA clinic reached an agreement: Every three months he had to print out his medicinal cannabis prescription and present it to his physician, psychologist, and care team. He had to agree not to consume or keep the weed on site. To give his VA doctors permission to contact the private-care doctor who wrote the prescription. The terms are noted in Fruchter’s VA medical file, which he provided to Task & Purpose; once he agreed to the conditions and followed them, “that was that,” Fruchter said.

“By the fact that they’re allowing him to stay in the program, they’re essentially blessing it in some way,” Marshall Spevak told Task & Purpose. Spevak is chief of staff for New Jersey Assemblyman Vince Mazzeo, who worked on New Jersey’s 2016 legislation to legalize cannabis for PTSD treatment.

“If it is a loophole on the VA’s part, they’re obviously okay with it,” he added.

A former Navy aviation warfare systems operator, Fruchter manned a door gun and served as a rescue swimmer aboard a Knighthawk helicopter during deployments to Bahrain, Kuwait, Iraq, and Qatar between 2004 and 2008. However, Fruchter’s time in the Navy came to a sudden halt when he tested positive for cannabis on a urinalysis - his first offense, he said - and he was administratively separated with a general (under honorable conditions) discharge in 2008.

He bounced from job to job for the next few years until he was fired from a gig as a medical support assistant at the East Orange VA Hospital in New Jersey in 2014, which Fruchter attributes to both his outspoken affection for weed, and what he said his employers deemed inappropriate behavior: being argumentative and combative - “Symptoms of the PTSD,” Fruchter said. “I kept getting fired from each job. I wouldn’t last more than a year.”

After leaving the VA, his finances took a dive, he turned to selling pot to make ends meet, and his personal life suffered amid a string of short-lived romantic relationships.

“When I got out of the service, I noticed I was using to self-medicate, to sleep at night and to get up in the morning, but I was in denial,” Fruchter said. He was eventually diagnosed by the VA with service-related PTSD in 2015. Then in August 2016, a motorcycle accident left him hospitalized. Around that time, he ended up homeless and living out of his car, drowning in a sea of medical expenses.

“I was depressed all the time,” he told Task & Purpose. “Suicidal - all that shit.”

Desperate for help, in November 2016, Fruchter checked into a clinic with the Lyons New Jersey VA Medical Center, where he would receive care for the next seven months.

Though Fruchter’s specific situation was covered by the VA’s policy, he still faced some initial resistance over his pot use.

“I basically had to fight them not to treat me like a drug addict, and had to sit through daily classes on the dangers of drug abuse, but they started to not make me go to those classes, because I wasn’t an addict,” Fruchter, who received his New Jersey medicinal marijuana card in October 2016, told Task & Purpose. “I was just using it as a medicine. It saved my life and it got me off of other medications that were driving me nuts.”

“If it is a loophole on the VA’s part, they’re obviously okay with it.”

While at the facility - he spent time in two inpatient units in Lyon, first at a domiciliary for homeless vets, then at an in-treatment clinic for PTSD - Fruchter was on a variety of anti-depression and anxiety medications and non-narcotic pain pills, but over time, the side effects of the drugs became harder to deal with than the symptoms they were meant to treat and left Fruchter feeling “like a zombie.” He weaned himself off the pills, going back on one here or there at a doctor’s recommendation, but as often as he could, Fruchter stuck to medical weed to treat his ailments.

“Being in the PTSD program last year really helped me, as far as the therapy - I learned how to cope better,” Fruchter said. “I was a complete mess. I don’t know how I’m alive sometimes.”

Fruchter isn’t the only person to successfully navigate the loopholes in the VA’s cannabis policy. There’s 46-year-old Boone Cutler, who served in the Army across three enlistments between 1990 and 2010. While deployed to Iraq’s Sadr City from 2005 to 2006, Cutler suffered a traumatic brain injury following a mortar attack. He was later diagnosed by the VA with post-traumatic stress disorder and early-onset Parkinson’s Disease.

After his injury, Cutler was wracked with chronic migraines and insomnia - at best, he could count on just a few hours of fitful sleep each night. Between 2006 and 2010, he was prescribed a range of drugs at Walter Reed Army Medical Center in Washington, D.C., and later at a VA clinic in Reno, Nevada. To help treat his insomnia and the pain from his sore joints and relentless headaches, Cutler received a prescription cocktail he called “zombie dope” and said it left him feeling disconnected, unable to feel or think clearly. Out of desperation, Cutler checked into a VA psychiatric ward in Reno in 2010. While there, he decided to try medical pot - made legal in Nevada in 2000 - to help him rest.

The first night he smoked, Cutler said he slept five hours and woke up “refreshed,” a feeling that had eluded him for nearly half a decade. Though he currently relies on just cannabis-based extracts, like cannabidiol, for a while he medicated with a mix of painkillers and herb, and informed his doctors he was doing so.

“What I found out was that there was this secret everybody used and nobody talked about it,” Cutler said. “My doctor’s just flat out didn’t have a problem with it. My VA docs - I had two at that time - they asked how my sleep was, and I said, ‘it’s fine, I use cannabis,’ and they asked how that’s working, I said, ‘it works great,’ and that was basically it.”

Cutler’s dealings with his care team lines up with what VA physicians told Task & Purpose: While they cannot write a prescription for medicinal weed, there’s no clear rule saying care providers can’t discuss it as a non-VA treatment option.

“I think the policy is clear, but I don’t think it’s well disseminated,” Dr. Jordan Tishler, who has worked as a physician in the Boston, Massachusetts VA emergency department for the last 15 years, told Task & Purpose.

According to Tishler, most vets “are concerned with retribution, within the context of testing positive” on a required drug test due to a contract called a narcotics agreement, which stipulates that a patient must agree to a urinalysis screening to ensure they’re taking their medication, and nothing else, or face losing their narcotics prescription. Both Fruchter and Cutler had to sign narcotics agreements, and both their provider-care teams understood the two veterans would test positive for marijuana. Because they reached an agreement with their physicians, Fruchter was able to remain in the zero-drug-tolerance PTSD program, and Cutler continued to receive his pain meds.

These candid chats make sense from a medical standpoint: Doctors should know what their patients are putting in their bodies.

According to Dr. Sam Foote, a primary care clinic director who blew the whistle on the Phoenix VA Healthcare System waitlist scandal in 2013, a VA physician can and probably should take a patient’s drug use into account to ensure the right drugs, at the right dosages, are being prescribed. This applies to patients using medical marijuana in states where it’s legal.

“The VA neither forces you nor does it prohibit you from doing that in that particular situation,” Foote said.

However, if this is allowed, then why is it such a well-kept secret? It may have to do with a mix of politics, and poor communication from the top levels of the VA down to the clinics. The end result: Different interpretations of the department’s pot policy depending on where you are, and who you ask, which leaves many veterans in the dark about their healthcare options.

“I’ve heard a couple of different things,” Lou Celli, American Legion’s director of national veterans affairs and rehabilitation division told Task & Purpose. “One, that the actual law and VA policy supports physicians being able to have these kinds of conversations with veterans. I’ve also heard that local policy and political pressure has caused them to believe that that’s not true.”

Though Fruchter successfully reached an agreement with his doctors at the Lyons VA clinic, he said “it was kind of like a silent approval.” Fruchter said he was asked not tell other patients of the arrangement he reached with his care team for fear it would “upset the status quo.”

Unclear guidance, while good for bureaucrats looking to shift responsibility by quoting a loophole, is ultimately bad for patients and their doctors.

“What I found out was that there was this secret everybody used and nobody talked about it.”

“This is where the federal government needs to get on board,” Celli said. “The federal government needs to recognize that administering medicine needs to be in the best interest of the patient, absent the political pressure, and absent the side-argument of whether they’re going to accept cannabis as a legal form of medication or not.”

Advocates of medicinal marijuana use for veterans - and those simply in favor of more research into its potential benefits - often point to its effectiveness in treating chronic pain, especially compared to highly addictive medications, like opioids. Its efficacy has been well-documented, with one observational study indicating a marked dip in opiate-related deaths in states where medicinal weed is legal, The Washington Post reported earlier this year. Still, when it comes to pot as a treatment option for veterans with PTSD and TBI, hard results are less readily available.

One of the consequences of the VA’s reliance on results from state-run studies and its lack of involvement in an ongoing federal study near a major VA hospital in Phoenix, Arizona, is that much of the research needed to further this conversation at the federal level, in any direction, remains out of reach, and it could stay that way for quite some time.

Currently, the marijuana PTSD study, the only federally approved research into the effects of herb on PTSD, has stagnated, with just 26 veterans enrolled out of the required 76 needed to be viable as of Sept. 19, and the hang-up stems from the VA’s refusal to recommend veteran patients for the study, due to the drug’s classification as Schedule 1. The lack of VA involvement, coupled with the study’s strict requirements - roughly 99% of applicants fail to meet the standards - has limited its recruitment pool. The federal research was further stymied by substandard pot - it had a low concentration of THC, but high levels of mold and lead - provided to the researchers by the federal government’s official grow operation at the University of Mississippi.

“What I want is access to safe and legal cannabis. I didn’t serve in the military to become a criminal. I didn’t set out in my civilian life after the military to become a criminal. This being a medical option I don’t legally have access to turns me into one.”

“More than half the states have legalized cannabis for medical use and the federal government now has a decision make,” Celli said. “Do we flip the switch and enact prohibition and clamp down on all of these states, or do we get on the bus and figure out a way to make it right for everyone?”

For now, in medical weed-legal states, VA policy leaves some room for interpretation, allowing for candid exchanges between physicians and their veteran patients. But when it comes to states where weed is illegal - it changes.

“That’s the crux of the current policy. VA policy is essentially: If it’s okay as a civilian, you can act as a civilian,” Tishler said. “If you’re in a state where it’s not legal for civilians, then it’s not legal for you as a veteran.”

For Tom Brennan, a Marine infantry veteran who suffered a TBI in Afghanistan in 2010, his decision to switch from VA-prescribed antidepressants, sedatives, amphetamines, and mood stabilizers to medical pot for treatment places him in a precarious position. Brennan, an Iraq and Afghanistan combat veteran and journalist lives in North Carolina, one of the 21 states where weed remains completely illegal.

“I don’t want a life of crime,” Brennan told Task & Purpose by phone. “What I want is access to safe and legal cannabis. I didn’t serve in the military to become a criminal. I didn’t set out in my civilian life after the military to become a criminal. This being a medical option I don’t legally have access to turns me into one.”

Until something changes, Veterans in states where weed is illegal are forced to use pot medically knowing they are committing a crime. As for those in weed-friendly states, the VA remains an option for vets looking for input on how cannabis will affect their treatment plan and interact with current prescriptions - really, everything short of a prescription, so long as they stay in policy’s gray area, and consult with physicians sympathetic to the idea.

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When Task & Purpose spoke to Fruchter by phone in early October, he was staying with his mother in Florida and sleeping on her floor while he waited for his paperwork to go through at an inpatient PTSD clinic in Miami. And just as he did before, he has a state medicinal marijuana card and a prescription from his private-care doctor.

But unlike the clinic in New Jersey, his new physicians have a different interpretation of where the VA stands when it comes to pot. According to Fruchter, he was told he wouldn’t be allowed to smoke pot while enrolled in the inpatient clinic.

“I’m currently fighting it and will probably win the same way as in New Jersey,” Fruchter said in an email to Task & Purpose. “I already called them back and told them officially over the phone that I was a registered patient with the Department of Health in Florida.