DOH - Public Hearing - Medical Marijuana Consultant Certification
(February 22, 2022)

Here are some observations from the Tuesday February 22nd Washington State Department of Health (DOH) public hearing on the Medical Marijuana Consultant Certification rulemaking project.

My top 3 takeaways:

• Staff provided a background briefing on cannabis consultant certification history, what the department was supposed to do under the law, and rulemaking scope.
  • Regulatory Affairs Manager Tami Thompson said the rulemaking project involved WAC 246-72 pertaining to “medical marijuana consultant certification rules.” She reported the project had been filed with the Washington State Office of the Code Reviser (WA OCR) and published on February 2nd under “Washington State Registrar #22-03-054” (audio - 1m).
  • Medical Cannabis Program Manager Allyson McIver mentioned that the consultant role and certification process had been established through SB 5052, named the The Cannabis Patient Protection Act (CPPA), which was signed into law in 2015. This law “integrated the medical marijuana market into the regulated recreational marijuana market,” she commented, and RCW 69.51A empowered DOH “to adopt rules necessary to implement the profession.” McIver explained that the department “licenses and regulates the certified consultant credential,” which involved applicants completing “a state-approved 20 hour training course” covering state laws and rules for cannabis; qualifying conditions “and common symptoms;” positive and negative “effects of using cannabinoids”; “and the risks and benefits of various methods of administration.”
    • Consultants are required staff in medically endorsed retail stores.
  • WAC 246-72 was opened for amending following “a petition received requesting modification of existing rules to enhance and clarify training requirements for consultants,” McIver said, adding staff took the opportunity to open the “entire chapter for areas needing clarification or improvement.” She relayed that the purpose of doing so had been to ensure consultants had “a solid understanding of their role and knowledge of industry regulations, rules, and laws” so they could pass on the best information to patients and consumers (audio - 2m).
    • Learn more from the small business economic impact statement (SBEIS) and significant legislative rule analysis developed for the project.
    • The petition for the rulemaking was submitted to DOH in December 2018, though the CR-101 starting the project wasn’t approved by department leaders until February 2020.
    • DOH staff gave a presentation on the medical cannabis program, including consultants, to the Washington State Legislative Task Force on Social Equity in Cannabis Licensing Work Group in June 2021.

• Four people offered remarks on changes they wanted around consultant certification in areas like privacy, medically compliant products, who could conduct consultant training, disability education, and the possibility of a consultant internship component.
  • John Kingsbury, The Cannabis Alliance Patient Caucus Chair and the petition filer, made clear his petition “encapsulates many of the changes I asked for” but highlighted some specific improvements. “This is really an opportunity,” he suggested, “to quit seeing patients who are trying to conform to the law get in jail or have their houses ripped apart” (audio - 9m).
    • Kingsbury said WAC 246-72-030 on “practice parameters” dealt with several things consultants “shall,” “may,” and “should not” do. He wanted this to include informing patients registering with the DOH database about “what their holding limits are, and what their privacy rights are.” Kingsbury had found patient participation in the database was “rare in this state,” and had seen those who registered “in trouble with law enforcement” when trying to comply with medical cannabis laws. He advised having consultants inform patients of plant count limits and reiterating that “registration is voluntary.” An example of specificity Kingsbury offered that he felt could “really change people’s lives,” was requiring entities training consultants to “teach the patient that it’s 15 plants per house, unless you’re in a cooperative.”
      • In Ocean Park in May 2021, a medical cannabis patient had their home raided under questionable circumstances and law enforcement seized 53 plants. However, it turned out that 39 of those plants were seedlings with negligible THC content, leaving Pacific County prosecutors to consider whether they would pursue manufacturing charges against the family which had been cultivating 14 mature plants.
    • Additionally, Kingsbury wanted consultants to know basic differences between medically compliant cannabis and other products, and “reinforce” the distinction through continuing education rules. He believed the main things keeping patients out of the licensed cannabis market was “fear of legal vulnerability” as well as “product hygiene.” He referenced a Quality Control Testing and Product Requirements rulemaking project underway at the Washington State Liquor and Cannabis Board (WSLCB) which led to changes adopted by the board on March 2nd.
    • In WAC 246-72-110, he observed consultants “don’t seem to know anything” about pesticide rules as he was routinely told by consultants “it’s all compliant product” and everything had been tested for pesticides. Kingsbury asked for training language emphasizing “the difference between DOH and recreational product,” in addition to “the difference between organic and pesticide-free” products. Even though ‘organic’ was a federal term that licensees and the state couldn’t apply to cannabis, he thought “we all know…what its analogues mean,” and said information should be specific in order to avoid having it “watered down” by the time it reached the patient. Communicating accurate information would help patient safety and “confidence in the product” in a “system that’s really not that friendly to us,” he concluded.
      • Lawmakers allotted $200,000 to the Washington State Department of Agriculture (WSDA) in Section 311(19) of the 2022 Supplemental Operating Budget “solely for rulemaking for a voluntary cannabis certification program that is consistent with the department's existing organics program, as authorized by chapter 317, Laws of 2017.” Legislators last heard about the organic-comparable cannabis certification program, and why it had been delayed, in October 2021.
  • Lukas Barfield, WSLCB Cannabis Advisory Council (CAC) Patient Representative, “educator and a cannabis writer/reporter,” was supportive of the updates proposed to consultant certification, but advised further modifying “who can teach” the consultant training course, as well as “who can design the course” (audio - 9m).
    • He encouraged allowing consultant training instruction to be done by people with “bachelors of education or higher and a teaching certificate,” reasoning they would be “trained on how to deliver information” in a way to help students “create memories” and retain knowledge. “And by all accounts,” Barfield said, “the medical cannabis consultants are having a hard time delivering information to patients,” making him believe teachers should be included among possible leaders of consultant training programs. He described how he had a Masters degree in Education and a teaching certification, having taught in grad schools and “a technical college” before pitching “a cannabis course” to the administration of the Tacoma Community College in 2019. In looking to expand the course and make it “sustainable,” Barfield had looked into adding medical cannabis consultant training into the coursework only to learn from DOH staff “teachers were not on list” of who could lead the training. He “created the course” hoping to see a change in consultant rules, and stated college officials had moved on to offering other curriculum options around cannabis. But he still wanted to have teachers or someone “with a PhD” included as options for certification instructors, noting there were no in-person training options available in Pierce County.
    • Barfield also wanted changes to a $50 certification renewal fee, saying consultants tended to be “young people, people moving around, people of color” and the fee could represent “a barrier to them coming back” as a consultant. He added that a consultant had to update their address “in writing” and that electronic submittal options might be better.
    • His final suggestion was to incorporate more disability education into the training curriculum, simple things like asking “a person in a wheelchair what’s the best way to hand them something.” As “‘medical cannabis patient’ is just a fancy word for a person with a disability,” Barfield felt that a “top notch” and equitable training program for consultants would prepare them for these interactions. He found most of his interactions with consultants positive, but some “grab me” and weren’t sensitive to his visual handicap.
  • Maurice “Chuck” Olivier, a certified consultant and “emergency medical technician,” liked the changes, particualry a “two hour, no cost” continuing education component “provided by the state.” He encouraged the certification process to include “an internship, where you actually have to go perform the functions of a medical marijuana consultant in the real world” (audio - 2m) 
  • Trey Reckling, Academy of Cannabis Science Founder and Have a Heart Training and Development Manager, told the group the academy had been approved by DOH to train consultants and was happy to “improve the program for patients.” Reckling said he was “largely in support of the rule…suggestions as written” (audio - 8m). 
    • He was supportive of Barfield’s call for greater instruction for consultants working with disabled persons, saying that should be part of the “most critical” training topics required by the rules.
    • Reckling said there were “concerns” his staff had about a proposed “self study” portion of the training, because “what passes for information online is a wide scope” and accepting independent research that was “the equivalent of a book report to us…we think lowers the bar unnecessarily. It also opens the door for bad information.” He wished to avoid “two hours of…potential misinformation,” as that “could do a great disservice and harm people and waste their money.”
    • In WAC 246-72-030, Reckling didn’t think it was “wise to lower the bar to…include people that might not have cannabis experience.” He found that potential instructors lacking this background, even if they had “teaching experience,” might “not be prepared” to talk about cannabis issues. The Academy of Cannabis Science employed “doctors and nurses, and lawyers,” Reckling said, but “a program like ours could say ‘Hey, we’ll do away with all of that expense…and for instance, I could just teach all those hours.” He assured them the academy wouldn’t do this, but “other programs absolutely could,” so he remained fearful the “narrowly defined” list of approved instructors would “go out the window” as competitors “often take the cheapest route.”
    • Reckling brought up the possibility of patients and consultants meeting through a video conferencing system. He cited WAC 246-72-030(4)(e), which mandates that consultants can’t provide “services at any location other than at retail outlets licensed under RCW 69.50.354 and holding a medical endorsement under RCW 69.50.375 for which the certificate holder serves as an owner, employee, or volunteer.” Conferencing software “could be a great service to patients,” argued Reckling, specifically mentioning those with “mobility issues” could save time by potentially receiving a consultation at home and ordering cannabis online for subsequent easy pickup.
  • In the meeting chat box, Shawn DeNae Wagenseller, Washington Bud Company Co-Owner and Washington Sun and Craft Growers Association (WSCA) Board Member; and Caitlein Ryan, Cannabis Alliance Interim Executive Director, indicated their support of the comments from others on proposed changes to consultant rules (audio - 2m). 

• Regulatory Affairs Manager Tami Thompson concluded the hearing and offered some specifics on next steps for the rulemaking project (audio - 2m).
  • She explained that everyone’s comments from the meeting, and those submitted in writing, would be summarized, organized and “given to [DOH] Secretary” Umair Shah, who had the authority to accept the changes as drafted by staff “or make changes to the proposal or its supporting documentation.”
  • In the event Shah instructed “some significant changes,” staff at the department would schedule another public hearing, Thompson relayed. Another possibility was that some suggestions would go “in a parking lot” to be considered for inclusion in “another set of rulemaking” at a later date.
  • Should Shah accept the existing proposed revisions the rules would be sent to WA OCR and take effect “31 days after they are filed.”Written comments would be released as well, she added. Thompson believed a CR-103 adopting changes would come after March 1st, though the project wasn’t listed on either the DOH rulemaking activity or adopted rules pages at time of publication.