IL Circuit Court Lowers the Boom: Tells IDPH to Add PTSD Within 30 Days

The Illinois Medical Cannabis Pilot Program (“MCPP”) received its second bombshell in two days.  Jabs v. IDPH, a case that the Illinois Cannabis Bar Association has been closely following, received a strong ruling in favor of petitioner Jabs and against the Illinois Department of Public Health (“IDPH”).

The director of the Illinois Department of Public Health has 30 days to add Post-Traumatic Stress Disorder to the list of medical conditions that are treatable with medical marijuana, a Cook County judge ruled today.

Cook County Associate Judge Neil H. Cohen found that IDPH Director Nirav Shah violated due process rights and used a standard not outlined in state law when he denied plaintiff Daniel Jabs’ petition to include PTSD on a list with 39 other conditions eligible for treatment with medical cannabis under the Compassionate Use of Medical Cannabis Pilot Program Act.

“This is a victory today for all those who suffer from PTSD, and especially our military veterans,” said Michael K. Goldberg, a partner at Goldberg Law Group LLC who represented Jabs.

Jabs, an Army veteran who served in the Iraq War, submitted a petition to the IDPH in February 2015 seeking to add PTSD as a debilitating condition for which medical cannabis can treat patients under the act.

The case is one of 8 similar cases filed by petitioners whose medical condition was not added to MCPP.  The decision rested with the IDPH Director, despite a supportive vote by the Medical Cannabis Advisory Board recommending the additions.  The judge in the PTSD case (Cohen) has two other cases on this matter including chronic post-operative pain and osteoarthritis.  Other conditions that have pending cases include migraines, IBS, polycystic kidney disease, intractable pain and autism.

Not surprisingly, this is a big relief for Mr. Jabs.  What is very surprising, however, is the strong language used by Judge Cohen:

“The Director’s legal duty was to review the evidence, review the advisory board’s recommendations based thereon and render a final decision accepting or denying the proposal.  Instead, Director Shah engaged in a private investigation, hidden from public view and more importantly, hidden from the parties and arrived at his conclusion based thereon.  This process was constitutionally inappropriate.” June 28, 2016 Memorandum and Order, Jabs v. IDPH, 15 CH 16344.

The real question remaining is whether this will matter at all?

As you might recall, SB10 is a bill that sits on Governor Rauner’s desk for signature. SB10 does several things, including extending MCPP through mid-2020, and explicitly added PTSD. If the Governor signs the bill (as he indicated he would), PTSD will be added on its own without the lawsuit.

The lawsuit ruling raises a number of legal and practical questions.

Will IDPH appeal the ruling? We don’t yet know, but it is possible.  A decision of whether or not a state agency appeals a ruling like this includes many factors, and many decision-makers including IDPH, the Office of the Governor and the Office of the Attorney General.  These moments are much more complicated than you might imagine.  We’ll soon find out the answer.

Will Judge Cohen rule the same way on the other two cases in front of him? Based on the tenor of his ruling, I would expect he will rule in a similar way on the other two cases so long as the facts are similar.

What about the other conditions sitting in front of other judges?  TBD. They may rule in a similar way, but they do not have to.

What about other conditions denied by IDPH that no one has filed a lawsuit for?  This ruling would have no immediate effect on those conditions.

Is this limited only to military-related PTSD?  No, all forms of PTSD certified by an eligible physician would be included.

How big of a deal is this decision?  Let’s just say, outside of the cannabis context, I am hard-pressed to recall such a scathing ruling against a state agency administrative decision.

Assuming this decision is upheld, and Governor Rauner follows through by signing SB10, will this impact the future makeup of the Advisory Board and the process used by IDPH in reviewing those recommendations?  Bet on it.

What other craziness could impact MCPP this week? Who knows, but stay tuned. There is surely more news to come.

A New IL Med Cann Coordinator: What Does It Mean?

For starters, the Illinois Medical Cannabis Pilot Program (MCPP) is going to be just fine.  For those that missed it, yesterday we learned that coordinator Joe Wright had resigned from his position:

Wright, who resigned Friday, was paid $53,770 last year, according to a public database of state employee salaries. He will be replaced by Jack Campbell, the program’s bureau chief in the Department of Agriculture, Kelly said.

The change in leaders comes as Rauner considers signing a bill to extend the pilot program by 2½ years and adding post-traumatic stress disorder and terminal illness to the list of qualifying conditions. Democratic state Rep. Lou Lang announced last month that he, the Republican governor and the GOP’s House leader agreed to extend Illinois’ four-year pilot program until July 2020.

A transition in leadership of MCPP does not jeopardize patient access to medical cannabis, nor does it suggest any policy changes from the Rauner administration.

We don’t know why Wright resigned, but what matters is that Jack Campbell will do well in the role (presumably pulling double-duty in his prior role at Ag).

Campbell joined the Department of Ag after a 20 year career in law enforcement.

Some might have a gut-reaction against someone who spent much of his career enforcing drug laws, but he has spent the last year learning about MCPP and his recent actions should comfort those enrolled in the program.

At key junctures Campbell has been deliberate, transparent, and fair with the state’s cultivation centers.  In my humble opinion, Campbell will seamlessly maintain the program’s status quo, and I wouldn’t be surprised if some of the program’s persistent issues (delays in new rule making, responsiveness) improve over time.

You may be unaware of exactly what the MCPP coordinator does.  The coordinator’s role varies depending on the status of the program.  During my tenure I focused on rule-making, patient registrations, competitive license processes for dispensaries and cultivation centers, and outreach to educate the public about the program.  Wright oversaw physical site inspections, the first cannabis cultivation, and initial cannabis sales to patients.  Campbell’s new role will be to fine-tune aspects of the program that have proven to impede patient access or unnecessarily penalize the businesses, pushing through new administrative rules, managing the selection process for unclaimed dispensary licenses, and hopefully steering MCPP through the next stage of patient growth with the addition of PTSD and terminal illnesses, and extension of MCPP through 2020.

I liken the coordinator role to being the quarterback for the MCPP teams at Ag, IDFPR, IDPH, and ISP.  The coordinator does not conduct every inspection of a cultivation center, nor does he/she respond to every patient inquiry, but instead ensures broader goals and timelines are met, and is the final say on complex, unanticipated questions.  Illinois is one of the few states that brings together several state agencies to tackle the cannabis program, and it is important for all agencies to follow the same script and work together towards common goals.  The coordinator helps counterbalance the tendency of state agencies to work in silos; without a guiding presence agencies do not always play well together in the sandbox.  Campbell’s track record gives me confidence that he’ll achieve these tasks as the new coordinator.

My advice to the state’s medical cannabis patient and business community would be to focus on encouraging Governor Rauner to sign SB10.  The state’s new Pot Czar is going to be just fine.

Kind Financial lands a Whale

Forgive the Father’s Day interruption, but I wanted to update everyone on a potentially significant new partnership.

While the cannabis industry continues to be fragmented and state-specific, the industry is moving into a new phase.  Institutional businesses across all sectors are starting to dip their toe into the cannabis world.  Kind Financial is the latest to make news by partnering with a global company – Microsoft.

Kind Financial provides various services to the cannabis industry, including seed-to-sale tracking software, a banking solution, and financing for cannabis businesses looking to make new investments without available capital.

Microsoft – well, it’s Microsoft.

Without question this will help Kind’s Agrisoft seed-to-sale business compete for government IT contracts, and it allows Microsoft a foot in the door for the cannabis universe without having to touch the plant, itself.

“No one can predict the future of cannabis legalization, however, it is clear that legalized cannabis will always be subject to strict oversight and regulations similar to alcohol and tobacco; and, KIND is proud to offer governments and regulatory agencies the tools and technology to monitor cannabis compliance,” said KIND Financial Founder and CEO David Dinenberg, said in a statement.

This will not be the last major corporations to wade into the pot-infused waters, and expect more newsworthy partnership on the retail, branding, pharmaceutical, and healthcare fronts.  Congrats to Kind for the big “get”…

Immaculate Conception – the first cannabis seed (or clone)

“Where does the first cannabis plant come from?”

This is one of the thorniest questions a regulator faces when medical cannabis is legalized in their state.  I guarantee you it is a question being asked of Ohio and Pennsylvania as they look to implement their medical cannabis programs.

As you might imagine, it is an uncomfortable question for state regulators to answer.  There is the whole “violating federal law” thing – if you really want to know how long you can go to federal prison for taking a trunk-full of pot from Illinois to Indiana, see here.

In fact, as much the federal government has indicated that state-legal marijuana is not a priority for them, an exception to that generosity is if you are involved with the “diversion of marijuana from states where it is legal in some form to other states.”  So – where does the state’s legal marijuana first come from?

I know I was asked the question on several occasions.  Just one example:

AUDIENCE MEMBER: I had one more question that I couldn’t quite hear earlier when you were answering. Did someone ask where the seeds would come from for the product or how we would acquire those? I missed that answer.

MR. MORGAN: The question was: Did we previously address where the seeds and clones will come from? And my answer was that the rules and statute don’t address that, and so we — we are not addressing that directly.

I like to consider myself an expert in the “non-answer answer.”

Hawaii recently received similar treatment, and Americans for Safe Access offered up the quote-of-the-year:

“Somehow, these things just have to kind of miraculously appear,” said Andrea Tischler, chairwoman of the Big Island chapter of Americans for Safe Access. “Short of Jesus showing in the heavens, I don’t think that’s going to happen … the original batch I know is going to be obtained illegally. You can’t (legally) transport it through the mail. You can’t bring it in from (another) state, so how are they going to get those clones or seeds?”

Internally, we referred to this as the “Immaculate Conception” problem.  The federal law could not be clearer, but yet Illinois cultivators found a way.  To my knowledge, no one was arrested transporting the first cannabis clones to Illinois, but we certainly fretted about this.  We discussed adding guidance in administrative regulations, but what could we possibly say?  In the end, we went with the best non-answer we could find: “I’m sorry, but the administrative rules are silent on that issue.”

A good day…

Today the Illinois Senate passed House Amendment 3 to Senate Bill 10 – sending to Illinois Governor Rauner a significant package of reforms and changes to the Illinois medical cannabis program – and believe it or not, he is going to sign the Bill.

We owe thanks to Representatives Lou Lang, Jim Durkin, and Governor Rauner.

                                                               

Anyone interested in reading the specifics can go here, and press coverage here and here.  The short version:

  • Extends the program several years to mid-2020 (instead of expiring Dec. 31, 2017);
  • Adds PTSD and terminal illnesses (terminal illnesses will have an expedited Dept. of Public Health approval);
  • Changes patient registration to 3-years before renewal, and the horrid patient fingerprinting need only be done once;
  • Clarifies that a doctor only certify a patient has a qualifying medical condition (not necessarily condoning the therapeutic benefit);
  • Dissolves the existing Medical Cannabis Advisory Board of patients, doctors and other health professionals, to be reconstituted under Gov. Rauner; and
  • Fixes a conflict in the law that threatened the lawful gun ownership of medical cannabis patients, plus more.

This Bill does not have everything for advocates (it does not add chronic pain, it does not add home-grow, etc), but with all the positive things SB 10 does, perhaps the most critical is that it gives hope and positive momentum to the Illinois program.

There is one notable (albeit minor) downside.

Having been involved in the creation of the Medical Cannabis Advisory Board, the dissolution of this Board gave me a moment of pause – the leadership of Dr. Leslie Mendoza Temple, Dr. Eric Christoff, Dr. Allison Weathers, patients Jim Champion and Michael Fine, and all the others has been outstanding, and frankly exactly what I had hoped for when we initially designed this team of volunteers and medical experts to consider the ever-changing research behind medical cannabis.

I will need to look past the downside of losing these wonderful volunteers, and focus on the huge benefit to the medical cannabis program.

One of the heroes of the Pilot Program, Leader Lou Lang, said it best:

“I have followed the work of the [Advisory] Board and they have done a stellar job.  They have listened to a lot of testimony, they read a lot of documents.  Before I made my final agreement to move this bill in this way, I called each of them to tell them what was in this bill.  Each of them said to me, ‘we think this board does good work… but if what we have to do to lengthen and strengthen this program, and make it better for patients and licensees and doctors and everyone in the pipeline, is to agree to reconstitute this board, then count us in.'”

Amen.