Proposed Rules on Medical Marijuana are Illegal, "Cruel and Unreasonable," Says Valley Doctor
Proposed restrictions on Arizona's voter-approved medical marijuana law are worse than illegal, says one Valley doc -- they're "cruel and unreasonable."
Edgar Suter, a Mesa doctor of nuclear medicine, writes in an a lengthy call-to-arms today that the state Department of Health Services' suggested rules concerning Proposition 203 probably violate the 1998 Voter Protection Act.
We came to the same conclusion last month after reading the draft rules and sitting in on a DHS news conference.
Suter's criticisms are broad, but he's particularly troubled by the bureacrats' attempts to make patients jump through hoops to get state approval to possess pot. He points out that a doctor in Arizona can prescribe Adderall to a kindergartener after one visit, but the proposed rules would require four doctor visits prior to obtaining a marijuana recommendation. Patients would suffer during the four-visit system, he writes.
We could summarize his other points, or we could simply post his bulletin. So, without further ado, here's what Dr. Suter e-mailed us this morning, in its entirety:
Written comments on the Arizona DHS draft regulations on medical marijuana must be received before January 7. There will be public hearings Feb 16-18 to receive verbal comments. I have attached both the Arizona Medical Marijuana Act and the AzDHS draft regulations. You are welcome to use my objections or compose your own, but PLEASE OBJECT!
ARS 36-2803.4 of the Arizona Medical Marijuana Act requires that the Arizona Department of Health Services rulemaking be "without imposing an undue burden on nonprofit medical marijuana dispensaries...."
ARS 28.1 Section 2 "Findings" of the Arizona Medical Marijuana Act requires the department to take notice of the numerous studies demonstrating the safety and effectiveness of medical marijuana. Arizona's pharmacies and physician offices dispense addictive, dangerous, and toxic drugs that, unlike marijuana, are potentially deadly, yet Arizona's pharmacies and physician offices are not required to have 12 foot walls, constant on-site transmission of video surveillance, residency requirements for principals, or any of the other cruel, arbitrary, and unreasonable regulations proposed by the department.
R 9-17-101.10 is an undue and unreasonable burden. 9 foot high chain link fencing, open above, constitutes reasonable security for outdoor cultivation.
R 9-17-101.15 is unreasonable and usurps authority denied to the department. It violates the 1998 Arizona Voter Protection Act. The department does not have the authority to deny the involvement of naturopathic and homeopathic physicians as defined by ARS 36-2806.12.
R 9-17-101.16, R 9-17-101.17, R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h), R9-17-202.G.13(e)I , R9-17-202.G.13(e)iii , R9-17-204.A.4(e)i-ii, R9-17-204.A.4(h), R9-17-204.B , R9-17-204.B.4(f)I, and R9-17-204.B.4(f)Iii are cruel, arbitrary, unreasonable, and usurp authority denied to the department. Those sections violate the 1998 Arizona Voter Protection Act. ARS 36-2801. 18(b) defines an assessment, singular, as sufficient. The Arizona Medical Marijuana Act does not give the department authority and the 1998 Arizona Voter Protection Act denies the department authority to require multiple assessments, require "ongoing" care, or redefine the patient-physician in any way, much less to promulgate a relationship among patient, physician, and specialist that is found nowhere in the practice of medicine. Nowhere in medicine is a specialist required to assume primary responsibility for a patient's care. Nowhere else in the practice of medicine does Arizona require a one-year relationship or multiple visits for the prescription or recommendation of any therapy, including therapies with potentially deadly outcomes. Marijuana is not lethal, but the department usurps authority to treat it with cruel and unreasonable stringency far beyond the stringency imposed upon drugs that are deadly. Plainly, it is dangerous and arbitrary for the department to suggest that a cannabis specialist assume primary care of cancer, HIV/AIDS, ALS, multiple sclerosis, Hepatitis C, and other potentially terminal qualifying conditions when the cannabis specialist may not have the requisite training or experience to do so. The department's regulations are a cruel, unreasonable, and arbitrary usurpation of authority and denial of patients' rights of choice, including their rights to choose other medical providers, other sources of care or information, or even to choose not to seek (or cannot afford to seek) other medical care at all (whether prior or subsequent to application).
R9-17-102.3, R9-17-102.4, R9-17-102.7, R9-17-102.8, R9-17-104.5 , R9-17-105.4, R9-17-203.A.3, R9-17-203.B.8, R9-17-203.C.5, R9-17-304.A.11 usurp authority denied to the department. ARS 36-2803.5 only gives authority to the department for application and renewal fees, not for changes of location or amending or replacing cards.
R9-17-103, R9-17-202.F.1(h), R9-17-202.G.1(i), and R9-17-204.B.1(m) are cruel, arbitrary, and unreasonable. Though many qualifying patients, qualifying patients' parents, and their caregivers suffer financial and medical hardship, the sections make little or no provision for patients, parents, and caregivers without internet skills or internet access.
R9-17-106.A(2) is cruel, arbitrary, and unreasonable. The regulation does not allow for addition of medical conditions that cause suffering, but do not impair the ability of suffering patients to accomplish their activities of daily living. For example, conditions such as Post-Traumatic Stress Disorder (PTSD), Anxiety, Depression, and other conditions may cause considerable suffering, yet still allow patients to accomplish their activities of daily living.
R9-17-106.C is cruel, arbitrary, and unreasonable. The regulation only allows suffering patients of Arizona to submit requests for the addition of medical conditions to the list of qualifying medical conditions during two months of every year.
R9-17-202.B is cruel, arbitrary, and unreasonable. Qualifying patients may need more than one caregiver to ensure an uninterrupted supply of medicine.
R9-17-202.F.5(e)i-ii , R9-17-202.F.5(h) cruel, arbitrary, unreasonable, and usurps patients' rights to choose other providers or sources of information
R9-17-202.F.6(k)ii, R9-17-204.A.5(k)ii , R9-17-204.C.1(j)ii , R9-17-302.B.3(c)ii, R9-17-308.7(b), R9-17-308.7(b), and R9-17-309.5(b), are arbitrary and unreasonable. If a caregiver already has a valid caregiver or dispensary agent registry card, no additional fingerprints need to be submitted.
R9-17-205.C.2 and R9-17-320.A.3 are arbitrary and unreasonable. A registry card should not be revoked for trivial or unknowing errors. Revocation of a card should not be allowed unless the applicant knowingly provided substantive misinformation.
R9-17-302.A, R9-17-302.B.1(f)ii, R9-17-302.B.1(g), R9-17-302.B.3(b) , R9-17-302.B.3(d)i-ix, R9-17-302.B.4(c), R9-17-302.B.4(d), R9-17-302.B.15(a), R9-17-302.B.15(b), R9-17-302.B.15(d), R9-17-306.B, R9-17-307.A.1(e), R9-17-307.A.3, R9-17-307.C, R9-17-308.5, R9-17-319.A.2.(a), R9-17-319.B are arbitrary, unreasonable and usurp authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department does not have the authority to establish residency requirements, control the occupation of the principal officers or board members, require surety bonds, require a medical director, require security measures that are an undue burden (security measures for non-toxic marijuana that exceed security measures required for toxic potentially lethal medications stored at and dispensed from Arizona pharmacies and physician offices), require educational materials beyond what the law requires, require an on-site pharmacist, require constant, intrusive, or warrantless surveillance, or regulate the portion of medicine cultivated, legally acquired by a dispensary, or transferred to another dispensary or caregivers.
R9-17-310 is arbitrary, unreasonable and usurps authority denied to the department. These sections violate the 1998 Arizona Voter Protection Act. The department has no authority to require a medical director, much less to define or restrict a physician's professional practice.
R9-17-313.B.3 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping for cultivation or to require the use of soil, rather than hydroponics or aeroponics, in cultivation of medicine.
R9-17-313.B.6 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an undue burden on recordkeeping by requiring the recording of weight of each cookie, beverage, or other bite or swallow of infused food.
R9-17-314.B.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. Especially in the absence of peer-reviewed evidence, the department has no authority to require a statement that a product may represent a health risk.
R9-17-315 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to place an unreasonable or undue burden by requiring security practices to monitor a safe product, medical marijuana, that is not required for toxic, even lethal, products.
R9-17-317.A.2 is arbitrary, unreasonable and usurps authority denied to the department. This section violates the 1998 Arizona Voter Protection Act. The department has no authority to require the daily removal of non-toxic refuse.
Attorneys are already preparing legal action against these cruel and unreasonable draft regulations.
If you are happy with such an outcome, do nothing. If you want to reduce your suffering and your costs, you must speak out now and also at the public meetings I have listed below.
The good news: As best I can tell, the AzDHS does NOT have the authority to enact the cruel and unreasonable package of regulations they propose. Obviously, I am not an attorney, so we are soliciting the input of qualified attorneys. Because I am a physician, I am restricting my comments here to the matter of patient-physician relationship. Others with expertise in dispensary and caregiver matters will share similar analysis and commentary concerning the draft regulations for dispensaries and caregivers. I have attached the AzDHS Timeline.
Please familiarize yourself with the Arizona Medical Marijuana Act (AzMMA):
If you pay special attention to Section 36-2803 "rulemaking," you will notice that the AzMMA does NOT give authority to the Arizona Department of Health Services to define-or redefine-the patient-physician relationship and does NOT give the authority to amend the AzMMA language, e.g., adding "ongoing" to "patient-physician relationship." The Arizona Voter Protection Act specifically DENIES authority for such usurpations.
Please note that even the Director of AzDHS questioned his own authority to do what he proposes:
See also: http://blogs.phoenixnewtimes.com/valleyfever/2010/11/prop_203_legal_weed_will_be_av.php
Next please familiarize yourself with the draft regulations:
Then please participate in the public comments online and in person:
Please plan to testify. Please also mobilize other suffering patients to comment online, in writing, and to testify at the Public Meetings:
Phoenix, February 15, 2011, 1PM, 250 N. 17th Avenue
Tucson, February 16, 2011, 1PM, 400 W. Congress, Room 222
Phoenix, February 17, 2011, 1PM, 250 N. 17th Avenue
The AzMMA requires this:
18. "WRITTEN CERTIFICATION" MEANS A DOCUMENT DATED AND SIGNED BY A PHYSICIAN, STATING THAT IN THE PHYSICIAN'S PROFESSIONAL OPINION THE PATIENT IS LIKELY TO RECEIVE THERAPEUTIC OR PALLIATIVE BENEFIT FROM THE MEDICAL USE OF MARIJUANA TO TREAT OR ALLEVIATE THE PATIENT'S DEBILITATING MEDICAL CONDITION OR SYMPTOMS ASSOCIATED WITH THE DEBILITATING MEDICAL CONDITION. THE PHYSICIAN MUST:
(a) SPECIFY THE QUALIFYING PATIENT'S DEBILITATING MEDICAL CONDITION IN THE WRITTEN CERTIFICATION.
(b) SIGN AND DATE THE WRITTEN CERTIFICATION ONLY IN THE COURSE OF A PHYSICIAN-PATIENT RELATIONSHIP AFTER THE PHYSICIAN HAS COMPLETED A FULL ASSESSMENT [NOTE: "assessment," singular, not plural; 1, not 4] OF THE QUALIFYING PATIENT'S MEDICAL HISTORY.
So, one full assessment, specify the qualifying condition, sign, and date-done!
Without the authority to do so, Az DHS proposes:
5e. A statement, initialed by the physician, that the physician:
Has a professional relationship with the qualifying patient that has
existed for at least one year and the physician has seen or assessed the qualifying patient on at least four visits for the patient's debilitating medical condition during the course of the professional relationship; or
Has assumed primary responsibility for providing management and routine care of the patient's debilitating medical condition after conducting a comprehensive medical history and physical examination, including a personal review of the patient's medical record maintained by other treating physicians, that may include the patient's reaction and response to conventional medical therapies;
• Any Arizona physician may in a single visit prescribe "speed," e.g., Adderall, to a kindergartener-without 4 visits spread out over 1 year any Arizona physician may prescribe to a kindergartener a drug that can kill that child by heart attack, stroke, seizures, or other "side effects."
• Cancer, HIV, Hepatitis C, and ALS patients often do not have 1 year to live.
• The patients that do live are cruelly being told to change doctors or suffer for 1 year.
• Deadly and addictive drugs such as the opiates are prescribed in a single visit by Arizona physicians and, despite the best efforts of physicians, some of those deadly and addictive drugs are illegally diverted, but that does not cause the AzDHS to demand 4 visits, 1 year of visits, or that the pain specialist assume primary care of the patient.
• Marijuana is 100% safe, gives patients good relief, and cures some conditions-Marijuana is not deadly and is not addictive.
• The alternative offered by the AzDHS to avoid 1 year of suffering, the cannabis specialist takes over the primary care of the pt's qualifying condition, is done nowhere else in medicine-Nowhere else in medicine does a specialist take over a patient's primary care.
• The AzDHS does not have the authority to define or re-define the patient-physician relationship or the number of doctors visits, or the length of time for those visits-that infringes on the patient's choice
• The draft regulations are cruel and unreasonable.
We still believe that an evaluation and a signed physician recommendation stating the patient's qualifying condition currently gives an "affirmative defense" in the event of a legal encounter at least until the final regulations, not merely the draft regulations, are announced by the AzDHS. Once the final regulations are promulgated, we will, of course, abide by them. Until then, we are still making recommendations to qualified patients. If the AzDHS succeeds in forcing 1 year and multiple visits upon patients, it is to the advantage of qualifying patients to start the process as soon as possible.
Please speak out now and defend your rights! Mobilize other patients and family!
Edgar A Suter MD
(formerly Arizona Comfort Care)