The Hawaii Department of Health doesn’t plan to hold a public hearing or accept public comments on rules governing the state’s new medical marijuana dispensary system before releasing draft rules by Jan. 4, 2016.
That means entrepreneurs will have only a few days to review the rules before applying between Jan. 11 and Jan. 29, for eight coveted licenses to grow and sell medical cannabis.
The recently enacted state law establishing the dispensary system exempts the department from seeking public input because legislators want to establish a medical marijuana system by July 2016.
“We’re taking full advantage of that exemption so that we can spend the time to get the necessary rules done,” Health Department official Keith Ridley told legislators during a briefing Thursday at the Hawaii State Capitol.
The briefing provided insight into the status of the state’s existing medical marijuana program, in which patients and caregivers can grow their own plants, as well as the Health Department’s progress on setting up a medical-marijuana cultivation and dispensary program that was legalized in July.
The Department of Health is still working through the kinks of adapting the medical marijuana program it inherited from the Department of Public Safety earlier this year, and is struggling with a backlog of 1,000 applications.
The department is still hiring staff to run the dispensary program: and while it plans to outline selection criteria for licensees in its January draft rules, the agency hasn’t decided how much information about the applications it will make available to the public.
Ridley said the department doesn’t plan to release the names of the applicants for licenses until it selects the grantees on April 15, “because it may frustrate the state’s process of determining the licenses.”
Sen. Will Espero, who previously called for the department to hold two public-comment periods, said he’s not surprised that the agency won’t hold any public hearings. He said that there’s nothing the Legislature can do, for now.
“At this stage, we can’t force them to do any,” he said, noting that anyone can contact the department with suggestions. “We gave the DOH the flexibility and authority to get the program up and running … Things are going to move real fast in the next couple of months. At this stage, it’s all in the hands of the Department of Health.”
But although Espero said he understood the agency’s views on public transparency, he was visibly frustrated about the existing backlog for medical cannabis cards.
About 1,000 patients are waiting for the cards, Health Department official Peter Whiticar testified on Thursday.
He said the program was temporarily short-staffed after it was transferred from the Department of Public Safety to the Department of Health this year.
It wasn’t an easy transition: according to Whiticar, the agency received only one staff position from DPS; no organizational charts, policies or protocols; no general funds; and 128 banker’s boxes of files filled with applications that DPS staff members had painstakingly copied into a primitive database.
The Health Department has since created new staff positions, drafted new rules for the program, and is developing a new online application process.
The department currently receives about 1,000 new applications for cards each month; and it tries to process 1,000. The number of applications is expected to increase once dispensaries open next summer.
Espero has been trying to convince the department to issue letters granting temporary permission to grow and use medical marijuana to patients stuck in the backlog. The Department of Public Safety did just that when the program was under its purview.
But Whiticar said the agency isn’t comfortable doing so, and he has the backing of Attorney General Doug Chin. In email to Espero on Tuesday, Chin wrote that issuing temporary registration cards “could result in unauthorized persons possessing and using marijuana under color of law.”
He wrote that the state must follow the advice of the U.S. Department of Justice’s Cole memorandum, which offers guidance to states regarding marijuana regulation.
But Espero was blunt in his assessment of Chin’s opinion, telling Civil Beat that it’s “overly restrictive and unnecessary.”
“The attorney general is clearly wrong in his reading,” Espero said at Thursday’s briefing. “Nowhere does (the Cole memorandum) say that we want to be an impediment for a patient or obstacle to get their medicine.”
Sen. Rosalyn Baker agreed, contending that she didn’t understand why the Health Department couldn’t allow temporary cards when the Department of Public Safety did so previously.
She noted that when she advocated moving the medical-marijuana program to the Health Department, she thought that would make it easier for patients to receive their medicine.
“You guys are — rather than helping patients — you are putting another barrier that wasn’t there when it was in Public Safety” — State Sen. Roslyn Baker
“You guys are — rather than helping patients — you are putting another barrier that wasn’t there when it was in Public Safety,” she said.
Whiticar said that the staff has been working overtime on weekends to reduce the backlog. He said a new processing system expected to come online next month should help as well.
After the hearing, Espero said Chin’s opinion doesn’t make sense in light of a recent federal budget law that bars the U.S. Department from Justice from spending money enforcing federal laws against state medical marijuana programs.
He said that if the Department of Health and Chin don’t change their minds, he’ll introduce legislation to force the department to provide temporary letters to applicants for medical marijuana cards.
“It’s unfounded, and another unnecessary obstacle in light of the fact that when the program was under DPS, temporary registration was available to Hawaii patients; and they never gave us any good reason why they switched it,” he said. “My understanding is there are patients out there who may very well sue DOH … There is no other medication that has to go through this process.”