Proposed MA DPH regulations regarding medical-marijuana patients and caregivers
Posted by MikeCann via MikeCann.net
To: Massachusetts Department of Public Health
From: Andy Gaus
Re: Proposed regulations regarding medical-marijuana patients and caregivers
Thank you for providing this forum to comment on the proposed DPH regulations on medical marijuana.
Two provisions in particular appear to make it virtually impossible for caregivers to provide the marijuana patients need while dispensaries are slowly organizing themselves:
1) Each caregiver must provide marijuana for only one patient.
2) The caregiver is not supposed to receive any compensation whatever from the patient for providing the marijuana.
Put these two provisions together, and very few people can practically step forward and become caregivers.
Bear in mind that growing marijuana indoors requires investing several hundred dollars in equipment to get started, paying high electrical bills in the ensuing months as well as ongoing costs for soil and fertilizer, and putting in hours of very real physical labor. If a patient grows for herself, these costs are repaid by the marijuana harvested and the relief it brings. But if a patient cannot grow for herself, the very considerable costs and burdens of producing the marijuana fall totally on the caregiver, with all compensation prohibited. This isn't just unfair: it has the practical effect of making it virtually impossible to be a caregiver, which means no one can help the person who cannot grow for herself. If you wish to limit the ability of a caregiver to profit from their cottage industry, you could set a maximum number of patients (but not a maximum of one), or a maximum price per ouince, or both. A limit of, say, 20 patients per caregiver and $100 per ounce would keep caregivers and their homes from turning into for-profit dispensaries but would not leave patients with no one to turn to during a long period when cities and towns are enacting moratoriums and potential dispensary operators are clearing numerous legal hurdles.
The provision that a patient must have no more than two total sources of marijuana is also unnecessarily onerous. If all providers are supposed to use a common state database, any user of the database should be able to verify that the same patient isn't filling the same prescription multiple times at different locations. If a further check is needed, patients could be issued something like a ration book.
One senses in all these regulations the underlying assumption that a set of air-tight regulations is both necessary and sufficient to prevent medical marijuana from being diverted to healthy recreational users, and that without such air-tight regulations, large-scale diversion is inevitable, with disastrous social consequences, particularly the increased availability to minors.
Let's be realistic: recreational users, including minors, already have total access to marijuana if they want it. Kids themselves, when surveyed, report that marijuana is easier to get than alcohol. Those who get their dope from dealers needn't fear being rejected as too young, and most of them get it, not from dealers, but from each other, in a vast informal network where everyone is both a user and a distributor. Likewise, almost all Massachusetts adults who wish to consume marijuana recreationally have found or could find a connection: marijuana prices have actually come down in recent years due to market saturation.
As officials responsible for public health, your first priority must be to make sure that patients who need marijuana for relief of painful and debilitating conditions can get it.
Minimizing diversion cannot be the main goal: it will never be effective for its stated purpose and is certain to cause unnecessary stress and pain for patients who need relief now and for the caregivers who would like to provide it .
Seattle Times staff reporter
It was all for a good purpose. There was little convincing science showing how — or how much — marijuana impaired driving ability. So they did a field test.
The editors found that they could physically operate a car even while very high, and fared well on driving tests. But their attention spans got so fragmented that they agreed getting behind the wheel was a lousy idea.
That was 1980. Thirty-two years later, scientific consensus about marijuana's effect on driving remains as foggy as the editors' brains.
But it is now a big political issue as voters consider whether to make Washington one of the first states to legalize recreational marijuana sales. For the first time in our state, Initiative 502 would set a legal impairment level for THC, the psychoactive compound in marijuana.
Based on some studies, that level — 5 nanograms of active THC per milliliter of whole blood — may be equivalent to about 0.05 percent blood-alcohol level, less than the state limit for booze. But even the experts emphasize that establishing the cutoff point when crash risk rises is "preliminary" and could change, in part because marijuana research in the U.S. is hindered by the federal ban on the substance.
The proposal is complicated, legally and politically.
Initiative 502 sets a "per se" standard making it inherently illegal to drive with more than 5 nanograms of THC. But there are no handy charts showing the number of tokes it takes to reach that level, because marijuana varies in strength and affects novice and seasoned users differently. I-502 supporters describe the DUI provision as a political and law-enforcement necessity. "This is simple: Don't drive when you think you might be impaired," said Seattle City Attorney Pete Holmes, an I-502 sponsor.
But uncertainties about the DUI provision fuel strong opposition among some marijuana-legalization advocates. They predict a rash of DUI cases based on unsettled science, and object to a zero-tolerance level for drivers younger than 21, which is also prescribed in the new law.
That provision helped turn prominent DUI lawyer Jon Scott Fox of Seattle from a likely supporter into an opponent. "I think innocent people could be, and probably will be, prosecuted based on the per se aspect of the law," he said.
Setting a limit
About 10.5 million people — 4.2 percent of the country's drivers — reported in a 2009 federal survey that they drove under the influence of an illegal drug in the past year, with marijuana by far the most common drug. Among high-school seniors, one in 10 said they'd recently driven under the influence of marijuana, according to a University of Michigan survey.
Currently, there are plenty of DUI prosecutions for marijuana, and I-502 does not change legal standards for stopping or arresting drivers.
If something other than alcohol is suspected during a traffic stop, one of 217 "Drug Recognition Experts" — specially trained police officers throughout the state — are usually called in to do a 40-minute evaluation, said Washington State Patrol Sgt. Mark Crandall, who coordinates the program.
Based on that evaluation, the driver would be asked for a blood draw at a medical facility; a search warrant also can be obtained, and drivers with four previous DUIs must give blood. About a third of the blood tests in the past three years — 1,536 out of 4,581 — found marijuana, according to Washington State Patrol data.
Because there is no current cutoff for THC, even a positive blood test for any amount, alone, is not grounds for a DUI conviction. One Seattle driver was recently acquitted for DUI despite a positive blood test because of questions about the science.
Francisco Duarte, a defense lawyer specializing in DUI cases, said that makes prosecutors prone to plea-bargain marijuana DUI cases.
But I-502 would make DUI prosecutors' jobs easier. A driver with a blood test above 5 nanograms would be presumed impaired, just as drivers with 0.08 percent blood-alcohol levels are now.
"This definitely takes away a defendant's ability to argue what impairment really means," said Duarte.
The 5-nanogram level is based on tests for active THC, which usually dissipates within hours of use. Another marijuana compound, carboxy-THC — stored in fat cells for 30 days or more, often tripping up users in workplace drug tests — is not counted under I-502 as a basis for impairment.
State Rep. Roger Goodman, a Kirkland Democrat who champions stiffer DUI laws, believes the time required for a police officer to conduct a blood test — two hours or more — will deter unwarranted stops.
"We have no reason to expect police will start pulling people over with no evidence of impairment to have blood drawn," he said.
Crandall said I-502 would not change his officers' basic duty. "We deal with impairment. You have to go all the way back to the traffic stop: What happened for the guy to have his blood drawn?"
Thirteen other states have "per se" laws for THC, dating back to Arizona's 1990 zero-tolerance law. The Office of National Drug Control Policy has made "drugged-driving" an enforcement priority, expecting that it will lead to safer roadways. Paul Armentano, a DUI expert with the marijuana-advocacy group NORML, said there is no data supporting that premise. Nor is there a proven need to make prosecutor's jobs' easier, he said.
"When cases are brought now, it's highly likely that the state gets a guilty verdict," said Armentano, citing figures in Colorado and California, where about 90 percent and 79 percent of DUI cases, respectively, led to convictions.
The laws are based on evolving science. A 2011 analysis by the National Institute on Drug Abuse found that studies on driving under the influence of cannabis "vary considerably," and more research is needed.
In setting a new level for impairment, I-502 cites data from nearly 3,400 fatally injured drivers in Australia, which found the risk of crash began to rise between 3.5 and 5 nanograms. But other studies undercut a clear correlation between car crashes and marijuana use.
When would an occasional user hit that level? One federal study found recreational users' THC levels fell below 5 nanograms within hours of smoking a one-gram joint. But that study used government-grown pot; the typical cannabis sold at Seattle medical-marijuana dispensaries is quadruple that strength.
Roger Roffman, a respected marijuana researcher and I-502 supporter, acknowledges that the research is preliminary. But a legalized marijuana market should also come with a warning, he said.
"We need to be mindful of what the public is told," said Roffman, a professor emeritus at the University of Washington "The initiative needs to say this is risky, because we are at a sea-change moment."
Effect on chronic users
At a recent I-502 debate at the University of Washington, medical-marijuana entrepreneur Steve Sarich warned students they could be arrested for a DUI a week after smoking a joint. "There goes your Pell Grant, there goes your college," said Sarich, who is organizing opposition to I-502.
His prediction distorts a majority of research, which finds active THC dissipates in casual users within hours.
But it can linger in frequent users, such as medical-marijuana patients. One study of such users — smoking up to 10 big joints a day — found active THC in their blood even after six days of abstinence.
I-502 makes no exemption for heavy users, including chronic pain patients.
Alison Holcomb, campaign manager for the initiative, is sympathetic to them, but said a DUI law should not be dictated by relatively rare cases. "We don't establish public policy based on outliers," she said.
The Car and Driver magazine editors, back in 1980, knew impairment when they felt it. One editor, a former race-car driver named Patrick Bedard, found his driving times improved slightly — when he "could muster the concentration."
But the higher he got, he felt less inclined to do so. "I'm a vegetable, inert, wordless, focused inward, contemplating the rapture," he wrote at the end of the experiment. "Every once in a while, I snap to and can't figure out where we are. But who cares?"
New Jersey's first medical-marijuana dispensary wins clearance to begin sellingBy Jan Hefler
Inquirer Staff Writer
New Jersey's first medical marijuana dispensary has been cleared to begin selling the drug to patients who register with the state Department of Health.
After weeks of setbacks, Greenleaf Compassion Center received a permit Monday to open for business in a former drug paraphernalia shop in Montclair, Essex County. The nonprofit organization will be allowed to offer only strains with reduced potency.
Health Commissioner Mary O'Dowd said Greenleaf had passed its final inspections, but could not say when the dispensary would open for business. Asked if it would do so before the end of the year, she said: "I would expect that."
In August, when patients could begin signing up, O'Dowd had anticipated that Greenleaf would start dispensing marijuana in September. On Monday, she would say only that Greenleaf would open when it was ready.
Greenleaf chief executive Joe Stevens and his partner, Julio Valentin Jr., did not return calls seeking comment.
In August, Stevens also said he expected an early-September launch, but later explained that Montclair officials had told him it would take a few weeks to issue a certificate of occupancy after the building was renovated. He also said he did not know the Health Department would require laboratory testing of the marijuana before granting final approval.
O'Dowd said photo ID cards would be mailed to the 190 patients who registered with the Health Department after their doctors certified that they had medical conditions that can be alleviated by marijuana. An additional 130 patients are still going through the registration.
More than a year ago five other nonprofit companies received preliminary approval to open dispensaries, but they have been stymied by the lengthy process.
New Jersey is one of 17 states to allow medical marijuana despite a federal ban on the use of the substance. Federal officials have told the states they will not enforce the ban if marijuana is dispensed only to sick people and if state regulations are obeyed.
O'Dowd said her agency wanted to make sure New Jersey's program could withstand legal challenges and had taken the time to put together regulations to protect the public as well as patients. One of the challenges in implementing the program, she said, is that "the federal government views this as an illegal product."
Some dispensary owners and patients believe the state has been overly cautious and restrictive, causing patients to needlessly suffer.
Compassionate Care Foundation, one of the two nonprofits that plan to open a dispensary in South Jersey, has had to push back its estimated opening date many times in the last year because of problems getting local and state approvals. Its principal officers have had to undergo more than eight months of background checks, including extensive scrutiny of their finances.
William J. Thomas, the dispensary's chief executive, said last month that his company might be forced to abandon its plans if the background checks are not finalized soon.
O'Dowd said Monday those checks had not been completed. Thomas did not return a call and e-mail seeking comment.
Patients also have been getting anxious, especially those who paid the state's $200 registration fee in August and were expecting to receive their medicine last month.
"As each day passes, there's someone new who is suffering and someone new at risk of being prosecuted for self-medicating" by purchasing marijuana on the black market, said Rich Caporusso, a Medford man who was among the first patients to register.
He has Crohn's disease. He said his doctor believes his pain can be controlled by marijuana without the side effects of stronger drugs. In April, he sued the Health Department, saying it was stalling and ignoring patients' pain.
The medical marijuana law that then-Gov. Jon S. Corzine signed in January 2010 was supposed to be implemented that summer. But when Gov. Christie took office a few weeks after the signing, he wanted a full review of its provisions and also assurances from the federal government that there would be no prosecution.
The Health Department also took months to craft stringent regulations to limit the drug to patients with terminal illnesses, multiple sclerosis, and other serious ailments.
Jay Lassiter, an AIDS/HIV patient from Cherry Hill, said the Health Department's announcement was "wonderful news." He said he hoped there were no more snags.
He said the news was bittersweet because it came too late for Diane Riportella, a friend and patient activist who had testified at hearings, urging the Health Department to stop the delays in implementing the program.
She died last month of ALS (Lou Gehrig's disease). "She should have been first in line," Lassiter said.
Ads running to legalize marijuana in three states
By Carl Marcucci
In November, voters in Colorado, Washington and Oregon will consider legalizing marijuana for recreational use. Although similar initiatives have failed in the past, this time the groups fighting to legalize pot are well-organized, professional and backed by high-dollar donors willing to outspend the competition, reports Raycom News Network.
In Colorado, the Campaign to Regulate Marijuana Like Alcohol (CRMLA) has produced several ads that say marijuana is healthier than alcohol. The campaign’s website points to medical studies that claim marijuana, unlike alcohol, has not been linked to cancer, brain damage, addiction or high healthcare costs.
CRMLA was given nearly $1.2 million from the Marijuana Policy Project, a DC-based lobbying group, as well as more than $800,000 by Peter Lewis, the founder and chairman of Progressive Insurance. Lewis has been a vocal proponent of marijuana legalization for several years and donated millions to legalization efforts around the country.
In an online video ad campaign, CRMLA has young adults explaining to their parents they prefer marijuana to alcohol. In one of the ads, titled Dear Mom, a 20-something woman tells her mother marijuana is “better for my body, I don’t get hung-over and honestly I feel safer around marijuana users.”
In Washington, rather than comparing marijuana to alcohol, New Approach Washington (NAW) is focusing on legalization, arguing outlawing cannabis does more harm than good, by wasting tax dollars on law enforcement while letting gangs control the money. She describes the possible benefits of legalization through saved law enforcement dollars and extra tax revenue.
The TV spot has a professional/executive looking woman, “I don’t like it personally, but it’s time for a conversation about legalizing marijuana. It’s a multi-million dollar industry in Washington state, and we get no benefit.”
These efforts appear to be working. In Washington, 50% of voters say marijuana should be legal while 38% say it should not, according to an Elway Research poll. And in Colorado, a Denver Post poll showed 51% of Coloradans were in favor of legalization, while 41% opposed it.
In Washington, the effort to legalize marijuana is being fought with a bankroll of between $4 and $5 million, according to the Raycom News Network story. NAW used those funds to put $1 million into television advertising during August, and hope to put triple that amount into the weeks preceding the November vote.
In total, groups in Colorado fighting to get marijuana legalized have a war chest of $2.5 million.
The campaigns are especially targeting women ages 30 to 55, whom tend to be less supportive of legalization and regulation than men.
The only visible group opposing the marijuana ballot, SMART Colorado, has been given less than $200,000 – most of it from Save Our Society, a Florida-based anti-drug group.
RBR-TVBR observation: Interesting that the Chairman of Progressive Insurance is donating so much money in this legalization effort. Perhaps legalizing it would create fewer accidents/injuries from police chases and save the insurance industry money? We doubt drivers with the stuff in their car would try to flee if it’s no more illegal than a pack of cigarettes. Who knows, but Progressive is a big corporation and Lewis seems to not be concerned about sticking his neck out on this.
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- Happenens again... Surprise Suprise...
Arapahoe County District Judge Carlos Samour dismissed the case against Dr. Manuel Aquino-Villaman following a hearing Friday. Samour said Aquino-Villaman's actions were lawful under the Colorado Constitution, according to a court summary of the hearing. He also said the charges should be dropped because officials failed to preserve key evidence. Aquino-Villaman had been charged with felony conspiracy to distribute marijuana, in addition to forgery and attempt to influence a public servant.
It is rare for a judge to dismiss charges before trial, but this is the second time it has happened for a medical-marijuana doctor this year in Arapahoe County. In May, a different judge dismissed the case against Dr. Toribio Robert Mestas, also saying that the doctor's actions were protected by the Colorado constitution.
The Arapahoe County district attorney's office declined to comment on the most recent dismissal, saying it has not yet decided whether to appeal.
Attorney Lauren Davis, who represented Aquino-Villaman, said both cases show a hostility toward medical marijuana by prosecutors in the 18th Judicial District, which includes Arapahoe County.
"Their bias against medical marijuana in Arapahoe and Douglas counties is an affront to the constitutional rights of patients and recommending physicians," Davis said.
Although the doctors — two of more than 1,000 physicians who have recommended medical marijuana in Colorado — are no longer facing criminal charges, neither is currently practicing medicine.
In March, Aquino-Villaman voluntarily surrendered his license in the midst of a state Medical Board investigation into a marijuana recommendation he wrote for a pregnant woman. Aquino-Villaman denied wrongdoing and said the woman never disclosed her pregnancy. But his attorney said Aquino-Villaman, now 71, could not afford to continue fighting for his license.
Last month, Mestas agreed to temporarily stop practicing while he is the subject of a Medical Board investigation. A public document about the investigation says only that a Medical Board inquiry panel "had significant concerns that (Mestas) provided substandard care to multiple patients."
In both Aquino-Villaman's and Mestas's criminal cases, undercover police officers posed as patients who complained of injuries or other aches in attempting to obtain a medical-marijuana recommendation. After brief exams, the doctors provided the recommendations.
Prosecutors argued that the exams were substandard and that the officers never complained of "severe pain" — the condition for which they were recommended marijuana. But the judges ruled the doctors' diagnoses were reasonable based on the officers' statements.
"The presumption is that doctors are entitled to rely on what patients tell them in the course of an examination," Davis said. "It's not the doctor's job to play policeman."
John Ingold: 303-954-1068 or firstname.lastname@example.org
Read more: Medical-marijuana case against Aurora doctor dismissed - The Denver Post http://www.denverpost.com/news/marijuana/ci_19542409#ixzz1gUpCPTtT