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.