Medical pot regs slowly developing

By DARA KAM
THE NEWS SERVICE OF FLORIDA

After state lawmakers failed to act, health officials on Thursday laid out a framework for adopting regulations required by a voter-approved constitutional amendment that could make Florida one of the nation’s largest medical-marijuana markets.

The Florida Department of Health on May 25 issued a “Notice of Regulation Development Procedure” establishing the process the agency intends to use to carry out Amendment 2, given a thumbs-up by more than 71 percent of voters in November.

The amendment gave doctors the authority to order marijuana for a broad swath of patients with debilitating conditions, including cancer, epilepsy, glaucoma, HIV, AIDS, post-traumatic stress disorder, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease and multiple sclerosis.

Doctors also have the power to order marijuana for “other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”

During the legislative session that ended May 8, lawmakers failed to reach agreement on a measure to carry out the constitutional amendment. A key sticking point involved a cap on the number of retail outlets the state’s licensed medical-marijuana operators would be allowed to run.

Currently, Florida’s seven medical marijuana operators can open an unlimited number of dispensaries. That’s based on a 2014 law, intended to provide non-euphoric cannabis treatment for children with severe epilepsy. That law paved the way for the state’s medical marijuana industry.

The industry is expected to explode after the passage of the constitutional amendment, under which at least 420,000 patients in Florida could be eligible for medical marijuana, according to the most recent health department estimates.

The regulation-creating process proposed Thursday by the Department of Health is a shift from typical proceedings, governed by Florida administrative law.

The constitutional amendment gives health officials until July 3 to craft rules to implement the amendment and until Oct. 3 to put the rules into effect.

But typical administrative-law procedures include timelines for challenges and revisions that could push finalization of the department’s regulations far beyond the constitutional deadlines.

Under the process proposed by the agency on Thursday, health officials would give notice 15 days before adopting a new rule. The public would have three days to weigh in on the proposal.

The framework, which would do away with the administrative-law process, lacks guidelines for how to challenge or appeal agency decisions about the pot regulations.

The implementation scheme also apparently does away with a proposed rule that health officials floated earlier this year to try to implement the amendment.

The proposal comes amid bipartisan demands that lawmakers revisit the medical marijuana issue during a special session. The could be unlikely to happen unless Gov. Rick Scott vetoes portions of the budget, forcing the Legislature to come back to Tallahassee for issues other than pot.

In a telephone interview Thursday with The News Service of Florida, Sen. Rob Bradley, a Fleming Island Republican who was instrumental in passing the state’s 2014 non-euphoric cannabis law and who remains a major player on medical-marijuana issues, credited the health department’s attempts to move forward with regulations to meet the July deadline.

But Bradley said he feared the department would develop regulations built on current Florida law — finalized before the constitutional amendment went into effect — while awaiting guidance from the Legislature.

If so, agency officials likely won’t revisit key issues such as a required 90-day waiting period before doctors are able to order marijuana treatment, something patients have strenuously objected to because they say it creates a significant barrier to treatment for dying or extremely ill Floridians.

“I don’t see the department doing anything bold. My sense is they are going to preserve the status quo until such time as the Legislature acts. I support the department’s desire to remove any legal cloud over people’s ability to receive this medicine pursuant to the current provisions that are in place,” Bradley, a former prosecutor, said. “We need to do more than that, though. And that’s the Legislature’s job.”

Even if lawmakers don’t take up the issue during a special session this summer, committee meetings will begin in the fall in advance of the 2018 session, which begins in January.

“The Legislature is going to be in Tallahassee no later than around 100 days from now, and possibly earlier if the governor vetoes all or a portion of the budget,” Bradley said. “There are opportunities for the Legislature to deal with medical marijuana.”