A Pot Policy Paradox

There was an interesting paradox in the news about the Arizona Medical Marijuana Act (AMMA) this week.  As Arizoneout reported in a June 7, 2012 post, Tuesday, August 7,  2012 was the day the Arizona Department of Health Services (ADHS) conducted a lottery to determine who would get the chance to open dispensaries in areas where there were multiple qualified applicants.

The Arizona Republic ran a piece on August 7 under the headline, "Big day for medical pot," featuring a photo of a 30-year-old Qualified Patient (QP), Scott, hanging long stems of cannabis on a line like laundry.  Scott and his girlfriend, Jody, 44, also a QP, invested $5,000 to turn a spare bedroom of their "nondescript, tan stucco home in a booming Maricopa neighborhood" into a grow-room for marijuana.

Scott and Jody smoke marijuana throughout the day to ease chronic pain caused by vehicle and other accidents.  Scott apparently is employed as an ironworker.  (Sounds safety-sensitive, donʼt you think?) He and Jody were complaining to the Republic that the opening of dispensaries would be a financial hardship to them, because then they would lose their cultivation privileges when they next renewed their QP ID cards.

Thatʼs because the AMMA was designed to restrict dispersed urban cultivation of the kind that is going on all over Phoenix, Tempe, Scottsdale, Tucson, Flagstaff, and Prescott today.  The drafters of the AMMA crafted it so that QPs who live within 25 miles of a dispensary must  buy their pot from a dispensary.  The folks who put the AMMA on the ballot thought it was better to have the cultivation and sale of marijuana tightly controlled and strictly regulated.

Governor Jan Brewer and Attorney General Tom Horne delayed the implementation of the dispensaries envisioned by the act for a year by suing on the eve of the original "go" date, and ultimately had their lawsuit dismissed.  On Monday, August 6, 2012, the eve of the dispensary lottery, Horne issued a formal "Attorney Generalʼs Opinion," declaring that the AMMA provisions authorizing dispensaries were preempted by federal law.  The other parts of the AMMA, such as those giving QPs and their caregivers the right to possess and use marijuana and making it a violation of Arizona law for employers to hold that against them, are not preempted, however, according to Horneʼs formal opinion.   

The dispensary lottery went forward as scheduled, with AG Horneʼs blessing, because having a dispensary registration certificate is not state permission to open and start selling pot.  There are other steps that have to be completed, including a state inspection, and dispensaries must have an operating certificate to open.

So now there are 68 folks who are the proud holders of dispensary certificates, thanks to the bounce of the bingo ball.  Another 29 have certificates because they were the only qualified applicants in the areas.  (Two areas have would-be dispensaries, but the issue is tied up in litigation.  Naturally.)

ADHS Director Will Humble at one point was predicting there could be dispensaries open by September.  But who knows now how long the legal wrangling will block them.  Horne ended his press release about the formal legal opinion by advising dispensary certificate holders "that it would be prudent to delay additional work and expenditures pending resolution of the preemption issue by a court."

So once again the stateʼs top lawyer has moved to block the full implementation of the AMMA and put the dispensaries in limbo.  And all the while, ADHS will continue to license QPs, and they will be working for you and buying from criminal drug dealers or growing their own in homes scattered across the state.  Because Horne thinks thatʼs better?

Catch-22 Accurately Describes Science of Medical Marijuana

Two different commentators to the Arizona Department of Health Services (ADHS) invoked the same literary reference while stating their views on whether four conditions should be added to those for which the Arizona Medical Marijuana Act (AMMA) legalizes the medical use of pot.  As we reported in a July 23, 2012 post, ADHS Director Will Humble denied all of the petitions this first time around.

In Joseph Hellerʼs satirical novel Catch-22, the title was an absurd military rule that prevented the World War II bomber pilot protagonist from ever avoiding combat missions.  It has come to mean any circular, self-contradictory bureaucratic policy that renders absurd results.

In the general written comments submitted to ADHS, someone who self-identified as a social science researcher, implored Humble: "Please help eliminate this 'Catch-22.'"

There is a "Catch-22" in this process. Because marijuana is illegal for the most part, research is sparse.  And, because pharmaceutical companies seem to prefer their medications, there is little funding available for research on marijuana and it takes a lot of time. . . . More research will likely not occur until marijuana is legal.  However, states want research to show it should be legal for some individuals.

The other commentatorʼs reference was more indirect.  One of the speakers at the May 25, 2012 public hearing that ADHS conducted referenced an article written by J. Michael Bostwick, M.D., who is in the Mayo Clinicʼs Department of Psychiatry and Psyhcology in Rochester, Minnesota.  The article, "Blurred Boundaries: The Therapeutics and Politics of Medical Marijuana," was published in February 2012 in the Mayo Clinic-sponsored, peer-reviewed general and internal medicine journal, Mayo Clinic Proceedings. 

Dr. Bostwick writes that the purpose of his article is to educate physicians, "so that they can decide for themselves whether marijuana is a panacea, a scourge, or both."  He concludes that it is both, finding great promise in the pharmacological development of the active ingredients in pot, which he calls "botanical cannabis."   He identifies the same federal barriers to good scientific research as did the other commentator: 

The involvement of an alphabet soup of federal agencies with divergent missions creates a series of potential barriers because several have the power to veto proposed [research] initiatives.  The FDA, for example, authorizes research to proceed on safety and efficacy, the National Institute on Drug Abuse provides the research material, and the Drug Enforcement Agency grants the investigator the actual license to perform the research.  Any one of these agencies has the power to halt an initiative in its tracks.

His Catch-22 reference is to the poor quality of pot available even for research that clears all of the federal hurdles.  "The current catch-22 is that the cannabis that should be studied—diverse strains hybridized by entrepreneurial drug dealers—is illegal and the cannabis that can be legally studied—the decades-old Mississippi strain—is essentially kept off-limits," he says.

Policy makers want to base their decisions on science.  Bad federal policy prevents good science.  Which leaves all of us − patients, physicians, regulators, employers, citizens − in the current Catch-22 state we find ourselves:  dealing with the reality of medical marijuana without a full understanding of its risks and benefits.

Humble Wonʼt Grant Any New Conditions

As Arizoneout predicted in the July 16, 2012 post, the University of Arizona (UA) evidence review gave Arizona Department of Health Services (ADHS) Director Will Humble all the justification he needed to deny the four petitions seeking to add debilitating medical conditions whose sufferers can become certified cannabis users under the Arizona Medical Marijuana Act (AMMA).

Humble announced his decision to deny all four petitions on Thursday, July 19, 2012, just two days after ADHSʼ Medical Advisory Committee issued its recommendation that he do so.  Based on the UA medical reviews, the committee concluded:  "Because marijuana has not been subjected to any high quality, scientifically controlled testing for any of the petitioned conditions, we find no convincing evidence that marijuana provides a benefit."

If I were on the side of the medical marijuana advocates, I would be arguing that Humble and his committee set an impossibly high standard for the evidence reviews because of the difficulty in getting approval for solid scientific research from the federal government, which is the only legal source of pot for research use.  The argument would be that by the standards set, the current debilitating medical conditions that the voters authorized would not get approval under those standards either.  Thus, Humble, an opponent of the AMMA before it was approved by voter initiative in November 2010, applied the wrong standard, one that frustrated the votersʼ will.

As we have seen already , the earliest judicial opinions on the AMMA have been deferential to the voters in construing the law and in limiting the discretion of ADHS to enact rules and policies that run contrary to what the voters intended.

Petitioners to add post-traumatic stress disorder, depression, anxiety disorder and migraine headaches have lost round 1.  Arizoneout is confident there will be many rounds to come.  Whatʼs more, ADHS will accept the next set of petitions for a week starting today.

PTSD Petitioners Will Attract Sympathy

Post traumatic stress disorder (PTSD) is by far the most sympathetic of the pending petitions to add to the list of debilitating medical conditions for which medical cannabis can be prescribed under the Arizona Medical Marijuana Act (AMMA).  Arizoneout discussed the petition procedures in a July 5 post.

The Arizona Department of Health Services (ADHS) has not posted the actual petitions on its website.  The written public comments ADHS has received, however, are overwhelmingly in support of adding PTSD.  Many of the supportive comments come from military veterans. 

One of the scientific articles in support of allowing medical cannabis to treat PTSD is authored by Dr. Sue Sisley, a Scottsdale physician in private practice who also is on the clinical faculty at St. Joseph’s Hospital and Medical Center and is an assistant professor in the telemedicine program at the University of Arizona (UA) College of Medicine.  Her paper summarizes a number of research studies, and one that she relies on the most was conducted on rat subjects. 

ADHS partnered with the College of Public Health at UA to have faculty researchers conduct evidence reviews of available peer-reviewed scientific research on each of the four conditions under review for inclusion as AMMA debilitating medical conditions.  The structure of the UA evidence review basically excluded from the starting point of its analysis the types of articles that Dr. Sisley relies on.  The UA reviewers considered only English language articles and human studies, and rejected considering animal studies, case reports or case series, editorials or opinions, and experiments on biochemical or pathophysiological pathways.

As a result, the UA faculty evidence review concluded that there were no studies that directly addressed the benefits and harms of marijuana use for treatment of PTSD, and that no conclusions could be drawn about those benefits and harms from the available scientific evidence.

Because ADHS Director Will Humble, the final decision maker (at least until we get into litigation and a judge will have to decide), has insisted that he will make his decisions on science.  Thus, the UA evidence review gives him the justification he needs to deny the petition to add PTSD as a debilitating medical condition under the AMMA. 

A lot of veterans will be disappointed if Humble decides to reject the PTSD petition. 

The U.S. Department of Veterans Affairs began to allow patients treated at its medical facilities to use medical marijuana in states where it is legal back in 2010.  Because the drug remains illegal under federal law, however, VA doctors themselves cannot recommend it.

Federal law also makes it very hard to conduct solid scientific research on the effectiveness of medical pot in treating PTSD.  Dr. Sisley herself is trying to conduct a research study, and gained approval from the Food and Drug Administration in April 2011.  She is still waiting for the Department of Health and Human Services’ scientific review panel to approve the study; that is the agency that has to supply the marijuana Dr. Sisley must use in her research.  The AMMA itself does not allow for the use of marijuana for research purposes.

One thing the public comments make clear is that a number of Arizonans already are using medical marijuana to treat PTSD.  Several of the public comments in support of  the PTSD petition were from people who already are Qualified Patients authorized to use medical pot for other conditions. 

The comments are similar to these from a military veteran allowed to use cannabis for chronic pain: “ My job evaluations have improved, people at work comment how much better I am to get along with, and did I mention that I have actually started sleeping nearly all night.  Before being on this program, I would be awake every 3-4 hours either with a nightmare or jolting awake to get up and check around the house (hyper-vigilant).”

That veteran says he started using medical marijuana because of its ability to moderate the pain he had from a severe back injury.  “[B]ut the benefits to my PTSD makes me wonder why no one is jumping up and down and shouting from the rooftops at the VA that ‘This Works’ and a whole lot better than Trazadone, Zoloft and other . . . medications.  I am more productive at work, more pleasant to be around and feel immensely better than I have in nearly twenty years.”

Whether ADHS Director Humble can turn all these passionate veterans down  remains to be seen.  Nevertheless, it is clear that veterans out there are using marijuana legally while also working a variety of jobs here in Arizona.

July Is Pivot Point For Scope Of AMMA Impact

The Arizona Medical Marijuana Act (AMMA) as adopted by the voters contained a limited universe of debilitating medical conditions that patients had to have to become Qualified Patients (QP)  legally authorized to possess and use cannabis. That universe included eight specific diseases and five symptoms that could be caused by any chronic disease or condition or the treatment of any of them.  Arizoneout detailed the specifics in a June 6, 2011 post.

But that universe was not static, as the AMMA itself requires a process where the citizens can petition the Arizona Department of Health Services (ADHS) to add new debilitating medical conditions for which medical pot use could be authorized.  ARS § 36-2801.01  The law requires ADHS to set rules for the consideration of such requests, and to act on them within 180 days.

The rules ADHS created allow it to designate a very short window in which ADHS will accept petitions in January and July of each year.  The first such window was open for five days at the end of January 2012, and ADHS received a number of petitions during that window. 

Per ADHS rule, the petition had to include: 

1. evidence that the medical condition impairs the ability of the individual to accomplish activities of daily living;
2. evidence that marijuana provides a therapeutic or palliative benefit for the condition; and
3. whether conventional medical treatments provide a benefit for the medical condition.

Petitioners also had to submit supporting data from peer-reviewed scientific journals.

ADHS' medical review team made a preliminary decision that four of the petitions had enough evidentiary support to warrant a full hearing.  ADHS accepted on-line public comments, and conducted a public hearing on those four petitions on May 25, 2012.  The decision is due by the end of July.

Of the original debilitating conditions in the AMMA − the ones we have been operating with for more than a year − the one the overwhelming majority of QPs cite in their applications is chronic pain.  That condition, which is extremely subjective and, some would say, easily faked, has been cited by nearly 89% of the nearly 31,000 applications ADHS has received so far.  The next most prevalent condition is muscle spasms, at nearly 14%, and nausea, at just over 10% of applicants.  Like chronic pain, muscle spasms and nausea are largely self-reported and subjective.  In other words, a recreational user could fake it easily enough, especially with the help of a cooperative physician.

The four conditions currently under consideration arguably fall in the same category as chronic pain, muscle spasms, and nausea.  The pending petitions seek to add post-traumatic stress disorder, depression, migraines, and generalized anxiety disorder to the list of eligible debilitating medical conditions.

ADHS has assembled a lot of information and public comments on these four conditions, including research ADHS commissioned from the University of Arizona College of Public Health,  all of which is available on its website.  Between now and the announcement of the decision on the four petitions, Arizoneout will be reviewing the collected materials and offering tidbits of particular interest to employers.

ADHS Director Will Humble is quite firm that the decision will be based on the medical evidence.  "I want to make sure I'm basing my decision on good science, and Iʼm really looking at the full weight of the evidence," he told the Arizona Republic.

Humble has no illusions, however, that the ADHS decision on the petitions will go down without challenge.  No, being the litigation veteran he has become since passage of the AMMA in November 2010, he probably expects to be sued no matter what ADHS decides.  The AMMA itself authorizes judicial review of decisions on petitions to add debilitating medical conditions.
 
July also likely will bring another round of petitions, and some probably will propose the same four conditions now under ADHS review, if more scientific evidence has become available in the last six months.  ADHS will accept such petitions for five days from July 23 to 27.  Just part of the AMMA's never-ending, ever-expanding mechanism for making marijuana available for medical use.

 

Timely Court Ruling Keeps Dispensary Application Process on Track

The Honorable Richard Gama, Judge of the Maricopa Superior Court, has again acted again to ensure Arizona voters that the Arizona Medical Marijuana Act (AMMA) will be implemented.   In a February 2, 2012 post, we highlighted Judge Gama’s first in the state interpretation of the AMMA in the Compassion First v. Arizona case.

It was Judge Gama’s ruling, issued in January 2012, that cleared the way for the dispensary process to begin.  He ruled again in that case on May 8, 2012.  In that case, he characterized his earlier ruling in his own words.  In January, he did “precisely” what the would-be dispensary applicants who sued asked, and ordered the State “to promptly implement the AMMA.”

He simultaneously threw out regulations that required dispensary applicants to be an Arizona resident who has submitted a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and is current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.  Judge Gama found that those regulations exceeded the limited authority given to ADHS by the AMMA to issue regulations to prevent theft and diversion.

In May, Judge Gama stopped the dispensary applicants who brought the case from coming back with a new challenge to another regulation requiring a medical director.  He did not reach the merits of the claim, ruling on grounds of interest only to litigation attorneys like me.  So there may be future challenges to the medical director requirement.

Arizona Department of Health Services (ADHS) Director Will Humble believes that the medical director requirement is a “key component to making sure that future dispensaries act in the best interest of patients and prevent recreational diversion.”

The timing of the ruling allowed ADHS to move forward with the medical director requirement for the first dispensary application period, which opened May 14 and will last for only two weeks. 

Seven applications were dropped off in the first two hours they were accepted, and there were 18 after two days, and 32 after three days.

The AMMA sets the number of dispensaries as a fraction of the number of pharmacies in the state, 1 dispensary for every 10 pharmacies, with the caveat that there can be at least one per county.  ADHS has decided to issue 126, one for every Community Health Analysis Area (CHAA), a geographic area defined by the agency for various disease monitoring programs.

Humble was candid that the intent of the system was to encourage dispensary applicants to “think rural.”  The rules allowed dispensaries to transfer marijuana on a wholesale market, with the hope that rural dispensaries would also take up cultivation, keeping the grow operations out of Arizona’s urban areas.

Another rule allows dispensary operators to move anywhere in the state after three years.  The hope clearly was that there would be applicants for each of the 126 CHAAs.  That also meant that fewer Qualified Patients (QP) could grow their own, as cultivation is allowed by the AMMA only for QPs who do not live within 25 miles of a dispensary.

So how’s that working out? So far, the applicants are clustered in Arizona’s urban areas.  The most so far are from the Flagstaff area, 12 in its 3 CHAAs, two of which have 5 and 6 applicants.  So far, there are only 4 from the greater Phoenix area, and two from Tucson.  There are many rural areas with zero so far.

Medical Marijuana Fuels Lottery Fever For Dispensary License

A birthday present from Arizona Department of Health Services (ADHS) Director Will Humble awoke Arizoneout from its long winter's nap with a newfound commitment to keep those posts coming on a more regular basis.  Humble's blog post on April 11, 2012 − yes, that is the anniversary of Dinita James' birth − said his agency was dropping the flag on the race to apply for a dispensary license.

The demands of my law practice and other professional commitments seemed to call me away from blogging about the Arizona Medical Marijuana Act (AMMA) and its impact on workplaces in the state during the first quarter of 2012.  On starting my own personal new year, I had resolved to get back on the blog, with a goal of one or two posts a week.

So the email announcing Humble's blog post seemed to hit my inbox with karmic significance.  Full implementation of the AMMA may be in sight, barring another litigation explosion or a raid by the feds.  More Arizonans are bound to seek ID cards as Qualified Patients (QP) authorized to use medical cannabis if there are stores where they can go buy the stuff, or brownies and milkshakes containing it.

More QPs mean more issues about marijuana for Arizona employers to face.   More need for Arizoneout, then, too.

ADHS will start accepting dispensary applications on May 14, and the window to apply is only 11 days. 
ADHS will review the applications as they come in, and will issue registration certificates on August 7.  There's another certification and inspection required before dispensaries can open, but it appears likely that some dispensaries will be up and running long before the end of 2012.

One post Arizoneout did make during 1Q 2012 was to announce the clearing of the litigation logjam that had interrupted implementation of the AMMA.  The event that Humble called the flag drop was the filing of revised regulations with the Secretary of State.  Faced with a court order to strike several selection criteria ADHS had been planning to use in awarding dispensary licenses and to move forward to implement the law, Humble said that's "what we're doing."

If there are competing applicants for a dispensary license in a given territory, ADHS will determine the winner by random draw.  Megabonus for the winners!

ADHS Avoids Groundhog Day By Signaling Dispensaries By Summer

Happy Groundhog Day!  The 1993 movie bearing that name is a favorite.  Arizoneout has something of that same, deja vu feeling that Bill Murray had, because the last post was an admission of error on a prediction, and this post starts with the same confession.

When Arizona Department of Health Services (ADHS) Director Will Humble said the dispensary application process might be further delayed by a pending lawsuit challenging his agencyʼs regulations implementing the Arizona Medical Marijuana Act (AMMA), even after the State's federal lawsuit was dismissed, Arizoneout predicted the dispensaries' legal limbo would extend for many months.

Wrong, wrong.

Under the headline "Dispensaries in AZ this Summer?", Humble's blog on January 25 announced the goal to begin accepting dispensary applications by April. Of 2012.  Humble further said that dispensaries could be operating by July or August.  That would be a year behind schedule, sure, but much faster than Arizoneout thought possible.

What appeared to be a persistent logjam cleared so quickly only because of a decisive and well-reasoned opinion issued a week earlier by Judge J. Richard Gama of the Superior Court for Maricopa County.   Judge Gama spent 22 years as a civil trial lawyer before being appointed to the court in 2000.  He has handled family and juvenile court dockets, but has had a civil docket since 2007.

The case was brought by would-be dispensary applicants who were not eligible to apply for a license because of regulations issued by ADHS.  The agency tried to get the case dismissed on procedural grounds, by arguing that it had complied with the AMMA by issuing regulations on the voter-adopted timetable, even though it had stopped implementing them back in May 2011. 

Judge Gama was having none of that, labeling the State's argument "disingenuous." He ruled that the specific statutory language giving any citizen the right to sue to compel ADHS to implement the dispensary system if it failed to do so within 120 days gave him mandatory jurisdiction over the case.  He added, "it would be a Pyrrhic victory for the voters were the Court to conclude otherwise."

That strong language was followed by an even stronger ruling.  He threw out regulations hinging eligibility to apply for a dispensary license on being an Arizona resident and submitting a personal state income tax return for the previous three years, never filing for corporate or personal bankruptcy, and being current on child support, taxes and penalties, judgment debts to the government, and government subsidized student loans.

The AMMA itself specifies those persons who may be considered for dispensary licenses, and the list of exclusions is short:  no felons, no one whose dispensary certificate has been revoked, and no one under 21.  ADHS claimed authority to impose the other exclusions based on language in the AMMA authorizing regulations to protect against diversion and theft, and setting a cap on the total number of dispensaries. 

Judge Gama was direct in his rejection of those arguments, saying ADHS could not "bootstrap substantive regulations of who may apply" onto its duty to regulatie dispensaries for the purpose of theft and diversion prevention. 

Judge Gama let stand other regulations as "supplementary rules" to protect against theft and diversion that prohibited absentee ownership of 20% or more of a dispensary, and required proof either of ownership of the proposed site or the landlord's consent to use of the site as a dispensary.

The fact that Humble announced within a week of the ruling that his teams were "dotting the i's and crossing the t's" on revised regulations to comply with the ruling and to begin accepting applications immediately is a strong signal that the State does not plan to appeal Judge Gama's decision or to pursue any other legal remedies.  Having lost two cases, the State apparently does not want to prolong its Groundhog Day on medical marijuana.

The case is important for reasons beyond its practical effect of clearing the roadblock and letting the dispensary licensing program go forward.  It is the first opinion interpreting the AMMA, and it will be cited by the lawyers and judges deciding future AMMA cases.  To disagree with Judge Gama, that future judge is going to have to explain why, which is why it is more often the case that the second judge finds the first judge's opinion to be persuasive precedent.

Compassion First LLC v. State established that officials of the State must carry out the will of the voters as expressed in the AMMA.  Sooner than expected, Arizona will have dispensaries.  That means employers will have more employees lawfully using or possessing marijuana among their workforce.  Smart employers will be prepared by knowing their rights and responsibilities.

Wrong On Appeal, Not On Length Of Dispensary Limbo

In a January 5, 2012 post, Arizoneout predicted that the state would appeal the dismissal of its lawsuit against the U.S. Government, and that the status of the 126 dispensaries that voters authorized when they passed the Arizona Medical Marijuana Act (AMMA) would remain in limbo for many months.

As it turns out, Arizoneout was wrong about the appeal.  Last Friday, which happened to be a Friday the Thirteenth and the eve of a three-day holiday weekend, Governor Jan Brewer issued a press release announcing that the state was not going to refile in federal district court, and that she had directed the Arizona Department of Health Services (ADHS) to begin accepting and processing dispensary applications.

“With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law,” Governor Brewer said in the statement.

ADHS Director Will Humble posted notice of the Governor’s decision on his blog.  But Humble’s post made it clear that full implementation of the dispensary system created by the AMMA still was full of uncertainty and was many months away, even under the best case scenario.

Step one according to Humble is setting up a new timetable for dispensary applications, a rulemaking process that itself will take so much time that the earliest ADHS will begin taking applications is sometime this summer!

But Humble sent a strong signal that other litigation may delay the process further.  Humble referred to another pending lawsuit that challenges the scope and constitutionality of ADHS’ medical marijuana rules, stating that it “complicates” the process.  Only if that lawsuit is withdrawn or settled could ADHS start taking dispensary applications this summer, Humble says.  So best case, the dispensaries would be in place a full year after Arizona voters anticipated they would be.

That best case scenario is unlikely to present itself, however, as Compassion First AZ, the organization prosecuting the suit, has announced that it does not plan to drop the case.

For her part, Governor Brewer does not promise a hands-off approach going forward.  She concluded her press release with this warning:  “Know this:  I won’t hesitate to halt State involvement in the AMMA if I receive indication that State employees face prosecution due to their duties in administering this law.”

What Are They Thinking? Maricopa Supervisors Create Grow-Your-Own Havens

The Maricopa County Board of Supervisors on August 31, 2011 undid the work it invested late last year in creating a zoning classification for medical marijuana dispensaries and cultivation sites in the unincorporated areas of the giant, most-populous county in Arizona.

The Arizona Medical Marijuana Act (AMMA), adopted by the voters in November 2010, allows cities and counties to impose reasonable zoning restrictions on dispensaries and cultivation sites.  Maricopa County was quick to act, with its Board of Supervisors taking action to amend its zoning ordinance on November 17, 2010, only days after the unofficial election results showed that Proposition 203 had passed.  Supervisor Mary Rose Wilcox lauded the staff for their "proactive move that will be good for the community," and the Board unanimously adopted a text amendment that provided the requirements and regulations for dispensaries in the unincorporated "county islands" whose development it governs.

That was then.  Bill Montgomery was elected Maricopa County Attorney in the same election, and he was one of the most vocal opponents of Proposition 203.  On May 26, 2011, he issued a formal legal opinion advising the Board to take no steps to implement the AMMA.  His opinion coincided with the announcement that Governor Jan Brewer was going to sue the federal government in federal court, the first of a flurry of lawsuits that brought a halt to the dispensary application process.

The recent Board action -- again unanimous with Commissioner Fulton Brock absent -- was in response to Montgomery's legal opinion.  Maricopa County did away with the zoning definitions it adopted just after the AMMA's passage, instead reclassifying dispensaries and cultivation sites as ones which must not be in conflict with any federal law.  So as long as marijuana is an illegal drug for all purposes under the federal Controlled Substances Act, no one can set up a dispensary in unincorporated Maricopa County.

That means that when and if the dispensary application process gears up again, the county islands of Maricopa won't be getting any.  And Qualified Patients (QPs) who live in those areas -- and have no dispensary within 25 miles -- will be able to grow their own so long as the zoning classification remains in place.

One of the purposes of the AMMA and the detailed implementing regulations developed and adopted by the Arizona Department of Health Services (ADHS) was to give QPs -- and only QPs and their Designated Caregivers -- safe and legal access to medical marijuana at tightly regulated dispensaries.

ADHS Director Will Humble even touted the incentives built into the regulations to encourage dispensaries to locate in rural areas.  "We made sure that inventory could be transferred between dispensaries (and their cultivation facilities) by allowing for a wholesale market.  That way, dispensaries in rural Arizona that may have a limited number of qualified patients can decide that a core part of their business plan is to cultivate for the wholesale market and sell their inventory to dispensaries in urban Arizona," Humble said in a March 2011 blog post.

Surely having marijuana growing in homes scattered all over unincorporated Maricopa County is a worse option than having QPs in those areas able to buy medical cannabis products at a few well-controlled, non-profit dispensaries.  Arizoneout certainly thinks so.

Humble Follows Through On Reporting Suspect Physicians

In a June 7 post, Arizoneout reported on Arizona Department of Health Services (ADHS) Director Will Humble’s outreach to physicians on the requirements for certifying Qualified Patients (QPs) eligible to use marijuana under the Arizona Medical Marijuana Act (AMMA).  While seeking to educate physicians, ADHS also warned then that it would monitor demographics and report physicians suspected of unprofessional conduct to their licensing boards.

Director Humble has followed through on his threat.  On August 19, 2011, Humble announced that he and his Chief Medical Officer, Laura Nelson, M.D., had written letters to the licensing boards of 8 physicians, 3 of them M.D.s and 5 of them naturopaths.  Humble did not identify the physicians in a post to his blog, but he did say that among them, the eight physicians accounted for nearly half of the 10,000 medical marijuana certifications ADHS has received since the program started taking applications in April 2011.

The certification form requires a physician to affirm that he has checked the QP’s profile on the Arizona Board of Pharmacy’s Controlled Substances Prescription Monitoring Program database.  Director Humble had identified 10 physicians who had issued more than 200 certifications each, and then checked with the Board of Pharmacy to see if the 10 physicians have been logging in and checking the database as they have attested.  The reports he got back from the Board of Pharmacy caused him to report that it appears that 8 of the 10 physicians were making false statements in their certifications.

According to a story in the August 20, 2011 Arizona Republic, one physician issued more than 1,000 recommendations, yet checked the database only 56 times.  Three physicians had never even accessed the database.  Humble said it was obvious the physicians were not acting “on the up and up.”

Arizona Board Of Medicine May Lack Experts Qualified to Judge Pot Docs

In a June 7, 2011 post, I reported on Arizona Department of Health Services (ADHS) Director Will Humble's promise to report what ADHS judged to be unprofessional conduct by certifying physicians to the physician's appropriate licensing board.

As of now, that may be a futile gesture.  In a recent report by the Arizona Office of the Auditor General, one of those licensing boards, the Arizona Board of Medicine, reported that it expected to get an increase in complaints because of ADHS referrals of doctors who are not following ADHS rules.

The Board of Medicine expects to have "challenges" in handling these complaints.  That's because the way the Board of Medicine reviews complaints is by having staff doctors and hired consultants to review the case and determine whether the doctor's conduct met the professional standard of care. 

The staff doctors and consultants have to be qualified in the type of care at issue to judge the work of the doctor being investigated.  Because medical marijuana is an "emerging" practice area, the Board of Medicine is concerned that it may have a shortage of qualified consultants available to conduct the professional conduct investigations of pot docs.

That conclusion surfaced in the auditor's report, of which the overall finding was that the Arizona Board of Medicine needed to "improve staff doctor and medical consultant selection, medical consultant training, and problem resolution practices."

That doesn't give Arizona employers a lot of confidence that the Board of Medicine is going to be effective at keeping the word "medical" the prominent focus under the AMMA.

A Humble Word of Praise

I don’t know Arizona Department of Health Services (ADHS) Director Will Humble.  I have never met him, I don’t know his politics, or anything about him other than what I have learned from viewing videos on his website, reading news reports about him, and following his blog posts on the Arizona Medical Marijuana Act (AMMA).

He’s catching a lot of heat these days.  He’s a defendant now in two lawsuits.  From my perusal of various medical marijuana advocacy websites (to which I won’t link because the content is such a mixed bag of propriety levels), Director Humble is getting tagged with the hypocrite label along with Governor Jan Brewer and Attorney General Tom Horne.  The common outcry on those sites is that all three state officials are interfering with the will of the voters, to whose mandate they usually trumpet their loyalty.

Director Humble did oppose Proposition 203.  But he seems genuinely wounded by the hypocrite allegation.  In a June 14 blog post, he protested that ADHS “worked very hard to implement the law.”  From the vantage point of this observer, that hard work is evident.

The AMMA was drafted to ensure against foot-dragging by ADHS in its implementation duties, setting strict deadlines for rulemaking and action on applications from Qualified Patients, Designated Caregivers and Dispensaries.  Director Humble met those deadlines, and produced a comprehensive set of rules that appeared to strike a balance appropriate to the spirit of the AMMA.

Humble also was acting on legal advice from Attorney General Horne in shutting down the dispensary application process.  A director of a state agency can’t just ignore the advice he gets from the top lawyer for the state.  One publication even claimed Horne admitted that he “directed” Humble to start denying dispensary applications.
    
Director Humble strikes me as an honorable and conscientious public servant who faithfully tried to implement the will of the voters.  Until he was ordered to stop.  Whatever your stance on medical marijuana, Director Humble deserves your respect.

Lawsuits Pepper ADHS Director Will Humble

Back on June 2, I wrote that the lawsuits were “flying” as Governor Jan Brewer filed a federal lawsuit, ADHS Director Will Humble halted the dispensary application process, and dispensary advocates announced their own plans to sue.  That was a bit of an overstatement, as only the Governor’s federal suit had been launched.

It took the dispensary advocates another couple of weeks, but two suits were filed on Tuesday, June 14.  One suit was filed in Maricopa County Superior Court against ADHS and Director Humble.  The other was filed in the Arizona Court of Appeals, also against Director Humble.  Both are “special actions” with special Arizona procedures, not your ordinary civil lawsuits.

Essentially, both suits are asking the courts to order Director Humble and ADHS to do the job voters tasked them with when they passed Proposition 203 – set up an application program and issue licensing certificates to non-profit medical marijuana dispensaries.

What this means for Arizona employers is that their workers may continue to be able to grow their own, or grow marijuana for others, for many months to come.  Until the dispensaries are up and running, any Qualified Patient (QP) who asks will get an ADHS card permitting cultivation of up to 12 marijuana plants, by the QP or his or her Designated Caregiver (DC).

Proposition 203 set out a detailed control system designed both to give QPs ease of access to marijuana for medical use and to restrict access to recreational users.  A limited number of dispensaries was the linchpin of the scheme. 

The current state of affairs – no dispensaries but pot gardens in thousands of Arizona homes – appears to me to be much riskier for employers and all Arizona citizens than the law the voters adopted.

Many Physicians Eligible to Prescribe Medical Marijuana in Arizona

The Arizona Medical Marijuana Act (AMMA) authorizes medical doctors, osteopaths, naturopaths, and homeopaths who are licensed in the state to provide the medical certification to the Arizona Department of Health Services (ADHS) that equates to a valid medical marijuana prescription.

During the ramp-up to the AMMA’s implementation, one of the most closely watched issues was whether the ADHS regulations would require a long-standing physician-patient relationship before the physician could provide a medical certification as part of the Qualified Patient (QP) application process.  The proposed regulations issued originally by ADHS contained a requirement that the physician-patient relationship either:

(1) had been in existence for at least a year and had included at least four in-person visits during the course of the relationship in which the physician had assessed the debilitating medical condition for which the medical marijuana was being prescribed; or

(2) be one in which the certifying physician has assumed primary responsibility for the management and routine care of the patient’s debililtating medical condition at the time of certification

In essence, the original proposed regulations would not allow a physician to provide a medical certification solely for the purpose of prescribing medical marijuana. 

When the final regulations came out, the requirement that the physician have a yearlong preexisting relationship with the patient or assume primary responsibility for the ongoing treatment of the condition had been eliminated. 

Instead, as the ADHS FAQ on QPs states,

The written certification given to a qualifying patient does not have to come from the physician diagnosing the qualifying patient’s debilitating condition or from the qualifying patient primary care provider.  The written certification can be obtained from a different physician whom the qualifying patient has consulted about the qualifying patient’s medical use of marijuana.”

In other words, a QP can see a physician solely for the purpose of obtaining a prescription for marijuana.  All that is required of the certifying physician is that he or she

• Make a confirmed diagnosis of a debilitating medical condition.
• Establish and maintain a medical record for the QP as required by state law.
• Conduct an in-person medical exam “appropriate” to the debililtating medical condition.
• Review other medical records from physicians who have treated the QP within the past 12 months, the QP’s responses to conventional medications and medical therapies, and the QP’s profile on the Arizona Board of Pharmacy Controlled Substances Prescription Monitoring Program.
• Explain the potential risks and benefits of medical marijuana to the QP.
• Disclose the physician’s relationship with any dispensary to which he refers the QP.
• Attest that in his or her professional opinion, the QP is likely to receive therapeutic or palliative benefit from medical marijuana to treat or alleviate the QP’s debilitating medical condition.

ADHS Director Will Humble and Chief Medical Officer Laura Nelson, M.D. sent a joint open letter to physicians just after the final regulations were released.  The letter characterizes the Arizona regulatory program as one crafted to “be the first true medical marijuana program in the country” because of the expectations it sets for the clinical assessment required to issue a medical marijuana certification.”  Director Humble and Dr. Nelson say this is their way to try to avoid a program that over time becomes “largely recreational.”

ADHS has warned physicians that it will review the demographics of the QPs.  If ADHS determines that a physician is engaging in unprofessional conduct, it has promised to provide information to the physician’s licensing board.

The warning is not stopping the “pot docs” from advertising their services.  A couple of days ago, my craigslist search for “medical marijuana certification” located 17 offers in the Phoenix area alone.  The weGrow outlet whose grand opening I reported on last week offers medical certification assistance.  Several medical providers have set up dedicated websites.

Thus, despite the sincere efforts of the ADHS regulators, it appears that some Arizona physicians are making a thriving practice out of medical marijuana certifications.  Your employees should not have a difficult time getting a QP ID card if they need one, and maybe if they just want one.  Only time will tell.

No Matter the Headlines, Legal Marijuana Can Still be in Arizona Workplaces

Despite my intention to proceed logically and deliberately through the three possible categories of marijuana cardholders protected by the Arizona Medical Marijuana Act (AMMA), the bold headlines just won’t let me.

As you probably have heard, the lawsuits are flying as Governor Jan Brewer and other state officials have sued federal government officials in the latest installment of the long-running series of federal-state conflicts over medical marijuana. That lawsuit is spawning others, because Arizona Department of Health Services (ADHS) Director Will Humble, another plaintiff in the state-federal lawsuit, has decided not to accept applications from folks wanting to open marijuana dispensaries.

Yesterday was the day ADHS was scheduled to begin accepting those applications under the timeline Director Humble and his staff issued at the same time they finalized the regulations to implement AMMA.  To lay a foundation for another lawsuit, a prospective dispensary applicant showed up at Humble’s office yesterday to try to submit an application, and he was turned away.  The would-be applicant is now going to sue the state officials for failing to implement the will of the people expressed in Proposition 203, the vehicle by which AMMA became law.

To Arizona employers, I say, none of the legal wrangling matters much for you and the challenges AMMA presents for your workplace.  Director Humble intends to continue issuing marijuana ID cards to Qualifying Patients and their Designated Caregivers.  So regardless of the headlines, the AMMA is not on hold for you.