Medical Marijuana Patients in Federally Assisted Housing

Q I am trying to figure out something with medical marijuana. I believe I’ve read that “regular” marijuana is still not permissible in HUD properties. One of our tenants has been prescribed medical marijuana in the form of liquid drops. Is this legally permissible according to HUD? And, if so, then is it an allowable medical expense?

A HUD does not permit project entry to anyone using marijuana regardless of whether it is in a smokable or liquid form, says assisted housing consultant A. J. Johnson, an expert in HUD rules.

Although some states permit marijuana use for medical or recreational reasons, federal housing is based on federal laws. At this time, marijuana use is still prohibited by federal law. Federally, marijuana is considered a Schedule 1 substance, and for this reason, the manufacture, distribution, or possession of marijuana is a federal criminal offense. The use of “medical marijuana” is illegal under federal law even if it’s permitted under state law.

However, guidance from HUD shows the nuances in laws that federal housing projects are operating under. On Dec. 29, 2014, HUD sent a memorandum to all HUD offices regarding the use of marijuana in multifamily assisted properties. The purpose of the memo was to clarify HUD’s position regarding renting to applicants who use marijuana and the treatment of current residents who use marijuana.

For new applicants, the memo makes it clear that owners of federally assisted housing are required by the Quality Housing & Work Responsibility Act of 1998 (QHWRA) to deny admission to any household with a member who is determined to be, at the time of application, illegally using a controlled substance as that term is defined by the Controlled Substances Act.

In contrast to the provisions regarding applicants, the requirement of federally assisted housing projects is different for existing tenants. QHWRA states in part:

Notwithstanding any other provision of law, a public housing agency or owner of federally assisted housing (as applicable) shall establish standards or lease provisions for continued assistance or occupancy in federally assisted housing that allow [emphasis added] the agency or owner (as applicable) to terminate the tenancy or assistance for any household with a member (1) who the public housing agency or owner determines is illegally using a controlled substance; or (2) whose illegal use (or pattern of illegal use) of a controlled substance...is determined by the public housing agency or owner to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.

According to Johnson, the memo makes it clear that current users of marijuana, even if medically prescribed, are not eligible for admission to federally assisted housing. However, the law “allows” the owner to terminate occupancy, but it is not a requirement. The determination of when to terminate occupancy based on the use of marijuana may be made on a case-by-case basis. Johnson notes that owners should be aware that there may be no lease provision for a HUD-assisted property that specifically permits the use of marijuana, including medically prescribed marijuana.

As to whether medically prescribed marijuana may be deducted as a medical expense, HUD has provided no clear guidance. While it’s reasonable to assume that since the use of marijuana is illegal under federal law, the answer would be “no,” this may not be the case. Since, as noted above, HUD gives owners some discretion with regard to allowing existing residents who use medical marijuana to remain at a property, it’s not a stretch to take the position that in such cases, if a resident uses medically prescribed marijuana, it may be deducted as a medical expense, says Johnson. HUD’s own guidance states that medically prescribed medications are legitimate medical expenses. On this issue, since there is no firm HUD guidance, Johnson recommends that you consult directly with your contract administrator.