Medical Cannabis Advisory Boards

On January 29, 2016, the Illinois Department of Public Health (“IDPH”) announced that Director Nirav Shah had once again rejected adding debilitating medical conditions to the Illinois Medical Cannabis Pilot Program Act (“MCPP”).

Though highly disappointing, this came as no surprise to those of us closely monitoring the words of Illinois Governor Rauner.  See hereHereHere.  And even his January 2015 comments here.

“I’m concerned about the process,” Rauner said today during a signing ceremony in Springfield.  “I don’t think it’s been run well.’

No offense taken.

The new Rauner Administration has been a mixed bag with regards to the medical cannabis program (on the bright side, cannabis businesses received their licenses, were allowed to initiate cultivation, and the program was allowed to start patient sales in November 2015 without any government obfuscation or inexplicable delays).

Yet the Illinois Department of Public Health, guided by the principles of Governor Rauner, has twice rejected the recommendations of the Medical Cannabis Advisory Board (“Advisory Board”) to expand the program.  The truly outstanding and overly qualified Advisory Board, comprised of doctors and patients, nearly unanimously urged IDPH to add new medical cannabis conditions such as PTSD and chronic pain.

advisory-board

The recommendations were rejected.  No explanation was given.  There is no reason to expect a different result in the future – you know that old saying about doing the same thing over and over again but expecting a different result…

While many of us are upset and disappointed about the news, I want to focus on the legal side of the ledger.

The Advisory Board is one of the better aspects of the MCPP – designed for the law to evolve over time.  [Full disclosure: I am also a former general counsel for IDPH, and was involved in the creation and appointment of the Advisory Board.]  As more medical cannabis research provides stronger justification for how it benefits PTSD, for example, IDPH has the authority to add the conditions through administrative rules (specifically through the Administrative Procedure Act and the Joint Committee on Administrative Rules).

Seems a bit boring, but wait… What if the Advisory Board recommends adding a condition to the MCPP and the IDPH says “no” to the recommendation?  Of course, that is exactly the situation we find ourselves in.

Not surprisingly, those who applied to add their medical condition are heartbroken, and some have even sued IDPH:

“An Illinois veteran is asking a judge to reverse a state decision against adding post-traumatic stress disorder to the list of diseases eligible for medical marijuana treatment.

“In the case of PTSD, the advisory board voted unanimously to recommend that it be added to the list after hearing testimony about the existing medical evidence.

“Potential patients ‘are disappointed in the governor for going against the recommendations of his own medical cannabis advisory board,’ [Attorney Michael] Goldberg said.  ‘The governor’s office has reversed the board’s recommendations without giving any reason, and they are seeking relief from the judicial branch.”

Can IDPH continue to refuse adding any conditions in the face of repeated Advisory Board decisions to the contrary?  Does IDPH need to give a reason for the denial?  If so, would any reason be legally sufficient?  What role, if any, does the Office of the Governor have?

Much of this will be addressed in court, so I’ll let those questions linger.  But we have some other states to take cues from.

Arizona’s medical marijuana law is one of the models for our program in Illinois, and also includes a Medical Advisory Committee to consider adding new conditions.  Arizona’s Advisory Committee recommended against adding conditions like PTSD in 2012 and again in 2014.  Based on these recommendations, their Director of the Department of Health Services denied the addition of PTSD citing “a lack of scientific evidence.”  When challenged in administrative review, the Department was ordered to reconsider and the Director ultimately acquiesced to adding PTSD as an eligible condition under their program.

“At the hearing, there was substantial evidence showing that PTSD sufferers receive a palliative benefit from marijuana use.

“The preponderance of the evidence shows that marijuana use provides a palliative benefit to those suffering from PTSD.”

Minnesota’s medical cannabis program closely mirrors Illinois program in many ways, including an advisory panel to consider new conditions.  Despite the panel recommending against intractable pain, the Minnesota Commissioner of Health decided to add the condition.

As disheartening as the gutting of the Advisory Board in Illinois may be, the Board still offers a unique and high-profile opportunity to present the litany of latest research supporting the medicinal benefits of cannabis.  The Advisory Board may not succeed at adding medical conditions any time soon, but it continues to be valuable and we all benefit from the Board’s thoughtful and passionate members.

If there is any takeaway from this, we should acknowledge that reasonable government officials and medical professionals can disagree on substantive decisions like adding eligible conditions to a medical cannabis program.  But when we are considering treatments for our country’s heroes returning from battle and suffering from PTSD, or solutions for millions of Americans battling chronic pain with addictive opioids freely prescribed by their doctors, we should not stand in the way of medicine that can improve their lives.

What’s in a Name?

What’s in a name?  Hello, world.  I spent a fair amount of time thinking about creating this blog.  What will the focus be?  Who’s the audience?  How formal do I need or want to be?  The name was an easy decision – welcome to the Pot Czar Blog.

 

When I ran the Illinois Medical Cannabis program, not a day went by without hearing a pot joke.  Indeed, many in the Governor’s Office only referred to me as the “pot czar.”  I successfully kept this moniker out of the press until the end of my tenure, but I privately enjoyed the name as a badge of honor (despite my pleas, my wife would not join the chorus).  In hindsight, I am very proud to have been a part of getting medicine to patients suffering from a range of ailments – even if that comes with a tongue-in-cheek title I will someday have to explain to my son (“Dad, why does everyone ask me if you can get them a pot brownie?”).

 

With the blog name settled, I reflected on the importance of a name in this industry.  Cannabis or marijuana?  Resin or Shatter?  Patient or criminal?  The distinctions obviously matter and have driven this spectacular shift in society’s capacity to rethink the benefits and relative risks of this medicinal plant.

 

I was first approached in the Fall of 2012 about medical cannabis in Illinois.  I was working in the Office of the Illinois Governor as an attorney focused on healthcare and environmental issues.  At that time it was increasingly likely that a medical cannabis law could be passed in the Spring 2013 Illinois General Assembly.  A few of us were tasked with negotiating the final bill with legislative sponsors and others.  It is safe to say that I had no idea at the time how the cannabis industry was going to take over my career.

 

The world has changed a great deal in the last 4 years with regards to cannabis.  Here in Illinois, medical cannabis is available to a small percentage of the population – the law and rules keep many from participating.  There are a number of barriers that should be removed for patients – and I will continue advocating to tear down those walls.  Dozens of dispensaries and cultivation centers are operational here, and several entrepreneurial cannabis-related startups and investors are sprouting in Chicago.  There are advocacy organizations, regular media stories, dedicated Facebook pages, and ongoing political discourse about the industry.  We are even on the verge of significant criminal justice reform.

 

I will keep this blog focused on the cannabis industry, warts and all.  There are many things to discuss – patient access, business innovations, legal implications, criminal justice issues and more – and I look forward to hearing your feedback.  Who knows what will happen next in the world of cannabis, but the Pot Czar Blog will chronicle it all.