COLUMBUS — Louis Johnson, managing director of OMNI Medical Services, showed up Monday at a hearing about proposed rules governing physicians under Ohio's newly legal-medical marijuana program in hope the murky waters of “affirmative defense” might be cleared a bit.
But he never heard the words mentioned in testimony before the hearing officer, and the words won't be found in the rules written by the Ohio Medical Board.
“It's confusing a lot of municipalities and a lot of courtrooms...” Mr. Johnson said afterward. “They're applying the wait-for-the-state-is-ready rules to affirmative defense, and that's not how [the law] is written.”
OMNI physicians, including some in Toledo, have been writing recommendations for patients to acquire medical cannabis, often from Michigan, well before final rules have been put in place that would lead to their certification to do so.
The hearing officer will take the handful of public comments heard Monday back to the legislative Joint Committee on Agency Rule Review, which will serve at a later date as the rules’ last set of eyes before they take effect.
Certified physicians would ultimately be on the front lines of Ohio’s program, which could still be more than a year away from being fully implemented.
In the meantime, doctors have been caught in a sort of legal limbo. They are allowed under the law to write letters now before Ohio’s program is up and running, so patients may obtain medical cannabis from other sources.
Under the law, that would allow patients to assert an “affirmative defense” until the program is operational to avoid prosecution for possession if they can show the letter and demonstrate they are otherwise complying with the law as written. The law spells out 21 illnesses and conditions as qualifying under House Bill 523.
The Ohio State Medical Association has urged members to proceed cautiously given the uncertainty.
Mr. Johnson, who did not testify, said after the hearing that OMNI's patients have run into situations where their affirmative-defense argument has not worked in Toledo and in Wyandot County. Ultimately, a third case in Defiance County was dismissed, he said.
He said the vast majority of OMNI patients have not had trouble, despite the situation’s murkiness.
None of the rules written for various elements of the program deal with the affirmative defense. It is just found in House Bill 523.
“Those rules have nothing to do with affirmative defense,” Mr. Johnson said. “We should be shoring up the affirmative defense to more closely match what the state is expecting, but that's not within the rules.”
The law legalizing medical marijuana took effect on Sept. 8, 2016, but Ohio is still in the process of licensing those who would grow the product as well as those who would process, test, and ultimately sell it at retail.
The only set of rules approved to date is for cultivators, and the state recently received 185 applications for what would be a total of 24 licensed small and large growing operations. Licenses are to be granted in September.
All other rules must be in place by Sept. 8.
Ohio’s law prohibits smoking or home growing of marijuana, allowing only vapor, oil, patch, tincture, edible, and plant matter form, and all products must be purchased from a state-licensed dispensary.
The rules require physicians to be licensed with the state, have prescription-writing privileges in good standing, and undergo two hours a year of continuing education to receive and maintain a certificate to recommend medical marijuana.
The law refers to it as a recommendation, not a formal prescription, because marijuana is still considered an illegal drug without therapeutic use under federal law.
Ohio’s law requires certificated doctors to have an ongoing relationship with patients for whom they’ve recommended marijuana, maintain extensive records on the treatment, and make annual reports to the state on the treatment’s effectiveness.
It also requires doctors to cancel recommendations if they suspect patients are abusing the drug or illegally providing it to others.
Theresa Daniello, a patient advocate from Chagrin Falls, questioned the decision to include a deadline in the rules for petitions to be submitted to the State Medical Board to consider adding new other illnesses of conditions to the list of those considered qualified under the law.
The rules would allow the board to limit the number of petitions it receives and prevent a new petition for a condition that's already been rejected.
“As quickly as research is happening, is that problematic?” she said. “It's something we should look at.... Not only are you going to limit the time period, you're also going to limit the amount of petitions.”
The JCARR hearing officer also heard testimony Monday on the Department of Commerce’s proposed rules applying to processors and testing laboratories. The last of the hearings affecting retail dispensaries, patients, caregivers, and the forms and methods of marijuana will be held Tuesday.
Contact Jim Provance at: firstname.lastname@example.org or 614-221-0496.
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