Michigan Medical Marijuana Lawsuit Charges State Registry Is Not Complying With State Law
Posted on | October 1, 2012 | No Comments
A lawsuit filed last week in Ingham County Circuit Court charges that the state agency responsible for issuing Michigan’s medical marijuana registry identification cards is violating the law by not properly carrying out its legal responsibilities.
The suit, filed Sept. 19 against Steven H. Hilfinger, Director of the Michigan Department of Licensing and Regulatory Affairs (LARA), and Rae Ramsdell, Director of the Bureau of Health Professions with LARA, alleges that the Michigan Medical Marihuana Program (MMMP), which they oversee, is not acting in accordance with the state’s marijuana act passed in 2008. The plaintiff in the lawsuit is Martin Chilcutt, a U.S. Navy veteran in his late seventies, who is the founder of a group called Veterans for Medical Marijuana Access.
The suit requests a writ of mandamus, a court order used to force government officials to perform their duties. Those who don’t comply risk being found in contempt of court.And it charges that the MMMP program has not established a review panel to add new medical conditions to a list allowing qualified patients to legally use pot according to the timeline set forth in state law; has not issued registry cards in a prompt manner; and has failed to issue annual reports.
There are currently 130,965 active patients and 26,896 active caregivers registered with the MMMP.
In order to get an ID card an applicant must send the registry written certification from a physician of a qualifying condition; a form providing information about themselves, their physician and, if necessary, a caregiver designated to handle and grow plants for them; a copy of photo ID; and a processing fee. Applications are supposed to be approved or denied in 15 days. There are roughly a dozen conditions or symptoms, such as Chrohn’s disease, cancer and severe chronic pain, that would qualify a person to become a patient under the program.
In an interview last August, attorney Matt Abel of Cannabis Counsel, PLC, the law firm now filing the suit, told The Huffington Post that state had not yet set up the program’s required review panel and because of that was at least two years behind in issuing recommendations to add new conditions to the program. According to a state statute that took effect in April 2009, a review panel is supposed to issue a recommendation to the Department of Community Health within 60 days of a petition being received; the department’s director is supposed to approve or deny a petition within 180 days of it being filed with the department.
The MMMP has also struggled to issue registry cards to patients in a punctual manner. In March of last year the program got bogged down with a substantial backlog after it received over 16,000 applications in one month. The agency had to purchase new equipment to keep up with the influx.
Attorney Thomas Lavigne filed the lawsuit against the MMMP. He said medical marijuana advocates decided to appeal to the courts after efforts to press the matter with the agency and state legislators went nowhere.
“They’re failing to uphold their duty to follow the law by issuing these cards in a timely manner and their time limits have long passed. It should be a no-brainer,” he said. “It’s just part of a larger pattern of complete disregard for patient and caregiver rights by the state apparatus on every level.”
State Sen. Rick Jones (R-Grand Ledge) supports the use of medical marijuana for chronic pain and cancer treatment but says the law is unclear and has sponsored a state senate bill that would outlaw its use by glaucoma patients.
Although he wouldn’t comment directly on the lawsuit, Jones was supportive of LARA’s work with the medical marijuana program.
“It is my understanding that the cards are being produced much faster,” he said. “I do know that initially when the program first started they were slow, but it’s my understanding they’re now being done in a timely fashion.”
Jones also said he was puzzled by the claim medical marijuana advocates were upset about not having access to reports from the MMMP.
“There’s been information published in the newspapers — how many cards there are and what percentages of different afflictions that they’re being issued for. I think the information is available,” he said. “I don’t understand this group’s inability to find what they want.”
LARA spokeswoman Lori Donlan told The Huffington Post in an email that the state’s medical marijuana program currently complies with the Michigan statute that concerns issuing cards in a prompt manner. She said all applications are reviewed and approved within 15 days of receipt; denials are issued and sent out in 15 days; and cards are printed and sent out within 24 to 48 hours.
In reference to the medical marijuana review panel, Donlan said the department still needs to include two more people on panel, but will schedule a meeting for before the end of the year. She added that the department willingly provides information on request and said a report will be put together “by fiscal year” and posted in the coming months.
“It was difficult to create annual reports at a time when the department had a significant backlog of applications to review and process,” she said.
“When creating a new program it is difficult to estimate the number of participants and with the high volume of applications combined with the challenges in processing thousands of requests per month, the department has worked through these issues.”
LARA had no comment about the recent lawsuit, which they said was being reviewed by the Attorney General’s Office.
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Posted on | September 30, 2012 | 2 Comments
Michigan’s Most Trusted MMJ Certifications – 866-649-9034 (Ann Arbor)
Posted on | September 30, 2012 | No Comments
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Posted on | September 19, 2012 | No Comments
AS SEEN ON WEEDMAPS, THCFINDER, and 420ANSWERS.COM
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THIS WEDNESDAY, SEPTEMBER 19th stop in for your Risk-Free Michigan Medical Marijuana Certification with one of our Board Certified and Michigan Licensed physicians.
Don’t Get Stuck Waiting For Over 3 HOURS In A Hallway With “CHEAP” immitations. This is your life…. don’t take the risk with people who don’t know what they are doing…
First Natural Wellness has assisted over 20,000 patients in getting legal.
100% PATIENT SATISFACTION!
WE HAVE NEVER HAD A PATIENTS PAPERWORK RETURNED!
Michigan’s Most Trusted MMJ Certifications – 866-649-9034
Don’t take the risk!, Do your homework!
** Michigan’s Most Trusted Certification Clinic ** SINCE 2009
Appointments Now Available for Medical Marijuana Certifications!
No prior medical records required.
Must have a condition under the Michigan Medical Marihuana Act to be approved.
.
Confidential and Discreet appointments with Same Day Certifications!
Call Now to set up your appointment!
866-649-9034
www.FirstNaturalWellness.com
getlegal@firstnaturalwellness.com
‘Bona fide’ Doctor/Patient Relationship Defended In Michigan Medical Cannabis Case
Posted on | September 19, 2012 | No Comments
Traverse City Defense Attorney Shawn Worden successfully defended the bona fide dr/pt relationship in the case of Robert Ward in Antrim Co Court 9-17-12. Mr. Ward had been arrested for felony manufacturing of marijuana. Mr. Ward was arrested after 23 plants were discovered in a secured enclosure on his property. The court ruled the plants were secured, so the prosecution attacked Mr. Ward’s card by questioning the bona fide doctor patient relationship.
The case revolved around Dr. Robert Townsend (Dr. Bob), the certifying physician. Dr. Townsend was qualified as an expert in Internal Medicine, Cannabis Medicine, and the bona fide Dr/Pt relationship at the onset of his testimony. He was then questioned by Attorney Worden as to his visits with Mr. Ward, the records he reviewed, his follow up procedures, and the criteria for certification, the elements of a bona fide relationship, and the methods used to determine whether the patient was growing a ‘sufficient amount’ of marijuana to meet his needs to qualify for ‘medical use’.
Key points of Dr. Townsend’s testimony in this case included the following:
- Dr. Townsend began treating narcotic addiction with suboxone in 2006, long before the MMMA passed. He began to use marijuana with his patients as a direct extension of this treatment, as the indications for medical marijuana matched the symptoms of narcotic withdrawal in his patients. In addition to marijuana certification, Dr. Townsend continues to treat narcotic addiction and chronic pain in his medical clinics demonstrating his practice is diversified and not limited to making recommendations under the MMMA. Dr. Townsend meets with EVERY patient. There are no through the mail certifications where the patient and physician do not meet.
- Records are required to establish the diagnosis on each of Dr. Townsend’s patients. This is standard medical practice in a ‘consulting practice’. If patients do not have medical records they are required to get them and not certified (there are some exceptions, but they are clearly exceptions in extraordinary circumstances). A key measure of ‘enough’ medical records is that an outside physician reviewing the same records reviewed by Dr. Townsend would reach the same conclusions about the patient’s medical conditions as Dr. Townsend did (the results are reproducible and stand up to peer review)
- Free follow up to reassess the patient is offered of all patients, and approximately 50% take advantage of that follow up visit, demonstrating an effort to re-assess the therapy over time, rather than just having them come in for re-certification in a year.
- The patient had 23 plants as a caregiver with 2 patients. This was well below the 36 presumed to me ‘medical use’ under the law. There is no need to justify this amount as by law it is ‘presumed’ medical use. Questions were asked about the amounts needed for different methods of ingestion from an occasional puff on a ‘one hitter’ to medibles to oils, as well as the differences in pharmacology and duration of effect between smoking/vaporization and medibles.
- The patients are counseled at the time of visits on broad categories of cannabis (indica vs sativa) and that MOST patients can control their symptoms on 1 oz or less per week of cannabis (to give a rough measure of an appropriate amount). The fact the federal gov issues 8.3 oz of marijuana in tins of 300 cigarettes also gives evidence to the appropriateness of the state limits of 12 plants and 2.5 oz of usable MMJ per patient.
The prosecution then questioned Dr. Townsend. Key features of the line of questioning used are
- There is no determination of the potency of marijuana, the amount, frequency of use, method of use, and total amount used per month. Dr. Townsend responded with the schedule 1 status of cannabis under state and federal law. What the prosecutor was asking, according to Dr. Townsend, was a formal prescription for cannabis (type, amount, frequency, duration). This would be a violation of federal and state law on the part of the physician.
- What other controlled substance is left to the patient to fully determine amount and use? Dr. Townsend cited the example of ‘Lomotil’ a controlled substance that is purely used ‘as needed’ in patient determined amounts.
- Unfortunately, the patient’s chart, which was part of the original packet reviewed by Dr. Townsend prior to the trial, was NOT included in the trial packet. The prosecutor hammered at this for awhile, trying to imply the visits were not recorded or formal visits.
- Was the amount of marijuana produced by Mr. Ward’s 23 plants ‘more than needed’ for medical use. Dr. Townsend explained that under the MMMA, 12 plants and 2.5oz per patient was presumed medical use, and did NOT need to be justified further. Only if the patient exceeded the limits with an example of a cancer patient needing 15 plants, did the amount need to be justified. If the prosecutor wanted to try and prove Mr. Ward had more than he needed, he was welcome to make his case, but the law presumes medical use at the levels involved and that is quite a burden of proof.
When it was said and done the judge made his ruling. There are 3 elements to prove, a bona fide relationship existed, the patient had a qualifying condition (qualified by the physician according to the MMMA), and that the amount was appropriate for medical use.
- Due to Mr. Ward’s obvious injuries and ample medical records, he was clearly qualified under the law to get a card. This was obvious even to the court.
- Although the law was ‘badly written’ 12 plants are allowed per patient (with no mention of the plants being 6 inches or 6 feet tall) so the patient was within his limits for medical use.
- A bona fide Dr/Pt relationship existed, as it was not a visit by a ‘hotel or internet’ doctor, the doctor did formally interact with the patient, required records to support the diagnosis, and the court agreed with ‘what was being done by Dr. Townsend’ though they didn’t like his CV as it didn’t specifically list the locations of his clinics and he should have had his chart with him.
- There are MANY examples of consultation visits for specific problems by non-primary care doctors, and literally MILLIONS of ‘take as needed’ medications. The lack of specific directions for use, potency, amounts, etc is not an issue.
The court further indicated what it DIDN’T want to see. Listing a diagnosis of exclusion without objective evidence like ‘fibromyalgia’. Large numbers of tie dyed T-Shirts with MiNorml and pot leaves. Lack of formal follow up with documentation. Certifications as the only services offered by ‘clinics’.
Overall a very positive court experience according to Dr. Townsend. Though the court misinterpreted his comments about meeting Mr. Ward at least 5 times at rallies and club meetings over the last several years (the court seemed to think these informal meetings were unrecorded ‘follow up visits’ when they simply demonstrated a familiarity with the patient and his condition over time), and characterized his testimony as ‘long on substance and short on procedure’ due to the lack of the chart and the CV, the outcome of the case was a clear message.
- Records are required to objectively support the diagnosis.
- A formal meeting conducted as any other office visit with a physician is required.
- Formal follow up is required.
One change to procedure for Dr. Townsend as a result of this successful hearing is that a nursing phone call to patients will be made and a chart record maintained at the 6 month mark in the certification to document follow up even for those patients that do not take advantage of the free follow up they are offered and encouraged to make use of at the time of certification. And don’t assume because the chart is in the prep packet that it will be there at trial, bring it from the office.
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