On
January 31, the Massachusetts Department of Public Health announced
that it had identified twenty provisionally-approved applicants for
certificates of registration to operate medical marijuana dispensaries. DPH is running point for the state under the medical marijuana law passed in Massachusetts by ballot question in November 2012.
Since the announcement, the local media have published innumerable stories raising questions about the medical marijuana dispensary application review process.
Many of these stories are about local and state elected officials,
public safety officials and disappointed applicants airing concerns
about the process in a variety of different manners and forums,
including a Boston City Council committee hearing, an inquiry into the
process by leadership of the state legislature, and at least two appeals
(1Releaf, Apex) filed in court thus far.
The DPH mantra to date has been that no applications have been approved yet, that the review and verification processes are ongoing, and that any applications containing misinformation will be dealt with appropriately.
(At this point I should tell you, gentle reader, to see my disclosure, at the bottom of this post.)
So what has happened as a result of all these questions being raised?
Not much, yet, though as time goes on, the DPH announcement of
provisional approval has been described by DPH such that it seems now to
be much more provisional than it did intially.
Following discussion of opposition to its site at a Boston City
Council committee hearing, one applicant announced that it would be seeking a new site for its proposed dispensary.
News reports and court papers allege that other applicants failed to
disclose on their applications all sorts of things, ranging from
multimillion dollar federal tax liens to full information about their
executive leadership teams.
The question of the moment is whether the application process, whose
decision rules are so specific (regulations, application form
instructions, online Q&A posted by DPH) can permit amendments to the
applications to bring them up to date. Thus far, all DPH has said is
that additional materials may be submitted only if they were not
available at the time the application was filed due to causes beyond the
applicant's control. A high bar. We'll see if it stands. More
generally, a number of voices in this conversation are contending that
the decision rules were not followed by DPH in its process to date.
DPH has stated that it is in the process of verifying the veracity of
the application materials submitted by the twenty applicants already
identified as having gained provisional approval. Some have asked why
the verification did not precede the announcement.
State Representative Jeffrey Sanchez, Chair of the Joint Public
Health Committee, has been investigating the Department's review process
at the behest of House Speaker Robert DeLeo. Last week, the Executive
Director of the medical marijuana program at DPH, Karen van Unen, wrote
to Rep. Sanchez an 18-page letter in response to his questions (see DPH letter to Rep. Sanchez
-- recommended reading to get a flavor of the current state of affairs
from the DPH perspective). The initial reaction from Rep. Sanchez was
that the letter was not fully responsive and that additional information would be required of DPH. The latest news ("No pot experts on pot panel") raises questions with respect to part of the Department's response to Rep. Sanchez.
Some folks have questioned whether DPH should be trusted with this
process, due to the questions that have come up over the past six weeks,
and due to other DPH missteps in recent memory -- including the
compounding pharmacy matter (see the special commission report
on the question of DPH's inadequate oversight of compounding pharmacies
linked to a meningitis outbreak) and state lab issues (see story on a former DPH Commissioner's resignation
following the revelation of a state lab employee's falsification of
thousands of police crime lab sample analyses). The current Commissioner
does not seem ready to resign over this issue, but who knows what next
week may bring? The prior Commissioner's resignation was likely
triggered by the ripple effect that the state lab employee's misconduct
had -- it was extremely damaging to the State Lab's reputation, and also
wreaked havoc with prisons, courts, public defenders and public safety
personnel. The ripples of the current issue have not spread so far as of
yet.
It's worth noting that the State Police have stepped in to handle the
crime lab duties previously managed by DPH (though that may not be a
best practice -- the lab should be more independent of law enforcement),
and that the State Police have a leading role in the background check
work being done for the gaming commission as the Commonwealth heads down
the path to legalized gambling. Perhaps there is a role for the State
Police in the DPH process.
Some elected officials have said, essentially, that the process is so tainted that DPH must start from scratch
and have new applications filed; that is also the tenor of the
complaints filed thus far in court. (Read them at the links above.)
Others have said: no need to start 100% from scratch, just re-review the
applications under the rules. The initial review was conducted in the
main by private contractors, according to van Unen's letter, and court
papers detail allegations of applications not being reviewed according
to the Department's decision rules, so a re-review by DPH staff and/or
other contractors -- particularly in light of the most recent
revelation, that no medical marjuana experts were on the expert review
panel -- would not be out of order.
The state's Attorney General (and gubernatorial candidate) Martha Coakley has been critical of the DPH process
and has therefore had to have the state retain a private law firm to
represent DPH in the lawsuits filed against it already (more are sure to
follow) rather than have her office represent the Department in this
litigation. The complaints filed to date raise a broad range of issues,
and ultimately seek a fair and reasonable administration of the
dispensary selection process. Rather than having these issues decided by
the courts, it will be interesting to see whether DPH can simply
re-review the applications in a transparent manner -- with or without
the assistance of appropriate outside resources -- that satisfies the
decision rules announced at the outset of the application process.
Ultimately, this is a balancing act. The Department needs to balance
(a) the needs of patients to have access to medical marijuana via
registered dispensaries in each county sooner rather than later, (b) its
obligation to ensure that the dispensaries are selected in accordance
with the Department's own decision rules in an evenhanded manner and (c)
the rights of local communities to determine how best to address site
selection and public safety issues. These needs and obligations are not
mutually exclusive. The Department is in the midst of its informal
review of its decisions on the applications, and the results of this
process may yet satisfy the various constituencies that have taken issue
with the Department's handling of these matters to date.
David Harlow
The Harlow Group LLC
Health Care Law and Consulting
(Disclosure: I represent an applicant for a medical marijuana
dispensary certificate of registration. I'm writing about how the
process is playing out based entirely on public information because I
think it's interesting, and those of you who don't read the Boston
papers have been missing out.)
photo: flickr cc Neeta Lind