Medical Marijuana in Massachusetts: Is the Application Process Broken?

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