Cancer Patients Must Provide DOH Approval for Seizures and Muscle Spasms, or May Be Unqualified for Low-THC Medical Marijuana
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law
Barnhart v. Dep’t of Health, Div. Admin. Hearings, Case No. 15-1271RP (Final Order April 10, 2015).
Following is a summary of a recent Division of Administrative Hearings case summary, taken from The Florida Bar Administrative Law Section Newsletter, Vol. 36, No. 4 (June 2015).
FACTS: On February 6, 2015, the Department of Health (“DOH”) published a notice of proposed rule-making setting forth the text of six proposed rules to implement the Compassionate Medical Cannabis Act of 2014 (“the Act”). The Act provides in part that certain physicians treating patients suffering from cancer or a condition that chronically produces seizures or severe muscle spasms may order low-THC cannabis for those patients’ treatment.
The Petitioner filed a Petition asserting that one of the proposed rules (64-4.002) is an invalid exercise of delegated legislative authority. In support thereof, the Petitioner alleged that she is a four-year-old Florida resident diagnosed with an inoperable brain tumor, and she treats her condition with medical cannabis extracts. The Petitioner further alleged that she plans to register with the Office of Compassionate Use Registry to become a “qualified patient” for the medical use of low THC cannabis.
The Petition also contained allegations regarding the harm that would result without an adopted rule. For instance, the Petition alleged there is a “desperate need for access to low THC cannabis” and that expedited rule promulgation was necessary because the “selected applicants will be responsible for ensuring access to ordered medication, with greater risk of public injury if there is no access to medicine.” The Petition also asserted that potential applicants eligible to become dispensing organizations would be harmed by the proposed rule’s “overly burdensome” application, scoring, and selection process.
OUTCOME: After affording Petitioner leave to file an amended Petition, the ALJ dismissed the Petition due to a lack of standing when Petitioner chose not to file an amended Petition.
The ALJ concluded the Petitioner’s allegations failed to demonstrate that she could become a “qualified patient” and thus potentially eligible for a physician’s order to receive low-THC cannabis.
The ALJ noted that while the Petitioner alleges that she has an inoperable brain tumor, she does not allege that her “condition falls within the narrow parameters of the Act, that is, that Petitioner has cancer or that Petitioner’s medical condition chronically causes seizures or muscle spasms.” Moreover, even if Petitioner had sufficiently alleged that she could be a “qualified patient,” the allegations were insufficient to show that Petitioner would suffer a real or sufficiently immediate injury in fact resulting from application of the proposed rule.
However, the ALJ rejected DOH’s argument that a “qualified patient” could never have standing to challenge proposed rule 64-4.002. While noting that the proposed rule only addresses the application requirements, scoring, and selection process for dispensing organizations, the ALJ concluded that qualified patient status, “when adequately alleged, might, hypothetically, be sufficient as part of the predicate for standing to challenge rules implementing the Act.”
Editor’s Notes on Case Summary:
This case demonstrates a common situation for many Florida residents who suffer from conditions like cancer: denial of medical marijuana. The Compassionate Medical Cannabis Act of 2014 states that in order to qualify for the cannabis, the patient must produce symptoms of seizure and persistent muscle spasms. If the patient is younger than 18 years of age, a second physician must concur the initial physician’s determination. In this case, 4-year-old Dahlia Barnhart, who suffers from a brain tumor, failed to demonstrate that her condition produces seizures and spasms, and therefore was denied low-THC. In court documents, you must allege that you are eligible for the physician’s order.
Do you think that 4-year-old Dahlia Barnhart qualifies for medical marijuana? Do you have a chronic condition that was denied medical marijuana? Please leave any thoughtful comments below.
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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.
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