Brusic, 112118 WAAGO, AGO 2018-8

• Case Date: November 21, 2018
• Court: Washington

The Honorable Joseph A. Brusic AGO 2018-8 No. 2018-8 Washington Attorney General Opinion Washington State Office of the Attorney General November 21, 2018          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.          The Honorable Joseph A. Brusic          Yakima County Prosecuting Attorney          128 N Second Street Room 329          Yakima, WA 98901          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 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. ...