DOH - Public Hearing
(September 17, 2019)

Here are some observations from the Tuesday September 17th Department of Health (DOH) public hearing on the “compassionate care renewals” rulemaking project.

My top 3 takeaways:

• DOH Medical Marijuana Program Operational Manager Shelly Rowden presented proposed rule changes to implement compassionate care renewals for qualifying patients.
  • Rowden led the meeting, which took place at DOH’s Tumwater offices. No stakeholders or members of the public were present except for Cannabis Observer, and we thank DOH for proceeding with the hearing and answering our questions even though we did not testify on the rulemaking. We extend additional thanks to Shelly Rowden for sharing digital copies of the meeting materials and for welcoming Cannabis Observer’s presence at DOH.
  • The following state employees were also present and introduced themselves (audio – 2m):
    • Tami Thompson, DOH Regulatory Affairs Manager. Thompson was usually the presiding officer at public hearings for DOH rulemaking.
    • Cori Tarzwell, DOH Health Systems Quality Assurance Division (HSQA) Policy Analyst. Tarzwell worked with Rowden to define medical cannabis; Kathy Hoffman served as Rowden’s Policy Analyst prior to becoming WSLCB’s Cannabis Policy and Rules Coordinator.
    • Mellisa Andersen, a DOH Business Analyst, helped to define and coordinate technical changes required to implement the rulemaking.
    • Joyce Roper, Senior Assistant Attorney General from the Agriculture and Health Division of the Washington State Office of the Attorney General (OAG), served as DOH’s legal counsel for the medical cannabis program.
  • Rowden walked through a presentation about DOH’s Medical Marijuana Program and the compassionate care renewals rulemaking project (audio – 6m, presentation).
  • She briskly listed DOH’s Medical Marijuana Program responsibilities:
    • Rules around Medically-Compliant Products
    • Management of the Authorization Database for registered patients
    • Oversight of the Consultant Certification Program
    • Technical guidance and education for the industry
  • Rowden said DOH also had authority to “license and regulate authorizing healthcare practitioners and we also have marijuana prevention education.”
  • Prior to the compassionate care renewals rulemaking, Rowden said patients had to be “physically present” for an authorized healthcare practitioner to conduct an examination prior to renewing their medical cannabis authorization. The patient also had to be physically present at a medically-endorsed retailer if they elected to renew their registration in the patient database and have their medical cannabis recognition card reissued.
  • DOH’s rulemaking would implement HB 1094, legislation that created compassionate care renewals for authorized medical cannabis patients. Patients unable to attend in-person medical examinations would be able to use telemedicine examinations to renew their authorization. Existing DOH rules “specific to the database” would be amended and the registry itself modified so that it “would work for the new law.” Changes would permit certified consultants to “move past” the requirement to photograph the patient at the retail location.
    • See Cannabis Observer’s coverage of the passage of HB 1094.
  • DOH’s stakeholder input worksheet for the rulemaking project summarized changes that would be made in rule defined in the CR-102:
    • WAC 246-71-010 – definitions added for “compassionate care renewal” and “telemedicine”
    • WAC 246-71-020 – clarifying language that exempted consultants from the requirement to verify identities of “qualifying patients under compassionate care renewal”
    • WAC 246-71-030 – several changes including clarification that a designated provider may renew registrations in the database on behalf of a qualifying patient
    • WAC 246-71-040 – permitted endorsed retailers to use existing patient photos or information in the database to renew or reissue a patient card; barred retailers from retaining or using that information for other purposes
• Cannabis Observer asked several questions to gain a better understanding about the patient database and the department’s perspective on medical cannabis.
  • Gregory Foster, Cannabis Observer’s founder, asked about DOH’s experience with patient database vendor cloudPWR (audio – 8m).
    • Rowden explained that when the state merged the medical and recreational cannabis systems through SB 5052 in 2015, DOH “went through a [request for proposals] RFP process” for a patient registry vendor. cloudPWR was awarded the contract on the strength of their AIRLIFT product and the department had worked with them since July 1st, 2016. For the rulemaking project, she said DOH had amended the contract and were “on track with implementing this portion of the bill.”
    • Foster contrasted DOH’s positive vendor experience with the WSLCB’s fraught history with traceability vendor MJ Freeway and hoped to learn from DOH’s approach to vendor management. Rowden said that DOH chose Andersen as the “assigned business analyst” for the rule change, while “someone from our IT side” assisted with computer security. She spoke of the intricacies in the law over which entities had access to what kinds of information within the database. Rowden explained cloudPWR “really took a lot of time and effort into thinking through and making sure it was going to be confidential.” She said the department maintained a good working relationship and communication with the vendor, and specifically cited the company’s “support desk for end users” which helped troubleshoot problems. Rowden said Washington’s Office of the Chief Information Officer (OCIO) continued to be involved during the “maintenance and operation phase.” Andersen added that she appreciated how “the same players who implemented [the database] are the same players I’m talking with today.”
    • Foster delved deeper, asking about the frequency of outages or any significant problems. Rowden said their protocols allowed for “identified issues” to be sent to cloudPWR “who immediately respond.” Rowden admitted encountering “little technical glitches here and there” sometimes associated with imports of WSLCB licensing data. When she joined the department in December 2016, Rowden said DOH was getting “100 calls a week” from database end users. Today, she estimated the number was closer to 20 calls a week or less, with the most common problem being consultant’s “user account going inactive” after 30 days without use.
  • Foster then brought up the Cannabis 2.0 project and indicated the WSLCB’s efforts to learn from five years of cannabis regulation surfaced challenges around medical cannabis. Foster articulated what he considered a “pretty universal sentiment” that “the way that the marketplace has been structured, I feel, has not served the best interests of the patients.” He noted WSLCB’s proposed agency request legislation regarding medical cannabis and small producers reflected the need for change. Foster said WSLCB was trying to get more medically compliant products on retail shelves and asked “How does the department see that issue? And is there anything that you feel like the department could do to kind of shift that dynamic, or do you feel like that’s more, really LCB’s on point for that?” (audio – 4m).
    • Rowden told Foster he’d asked a “big question” and noted that DOH was “constantly reviewing the current status of our rules.” Since she’d been involved in the program, Rowden felt DOH and WSLCB had “worked well together.” As compliant product production was voluntary and involved a higher testing standard, Rowden had heard from patients about the lack of products and from industry members unhappy with the cost of meeting the increased testing requirements. She also faulted “education” saying many people didn’t know medical cannabis existed as a product type. She said DOH “would be opening our rules” and would work for greater stakeholder engagement and stronger feedback for the department’s decision making going forward.
• Rowden provided a glimpse of upcoming rulemaking by DOH’s Medical Marijuana Program (audio – 2m).
  • The next action for the Compassionate Care Renewals rulemaking project will be the filing of a CR-103 to adopt the proposed language. Rules usually take effect 30 days after filing.
  • In response to a petition for rulemaking submitted by patient-activist John Kingsbury in late 2018, Rowden said the department planned to open Medical Marijuana Consultant Training Program rules for revision in October with the filing of a CR-101.
  • Rowden anticipated beginning to look at “product rules” around February 2020. Tarzwell pointed out that WSLCB’s rulemaking schedule could impact DOH’s timeline and rulemaking scope. Rowden noted “the Cannabis 2.0 phase” motivated the department to ask “what products are patients really using” and “what is really beneficial for them.”
  • You can learn more about all active DOH rulemaking or track information about the compassionate care renewals rulemaking project specifically.