WA House COG - Committee Meeting
(October 21, 2021) - DOH Update

The head of the Office of Health Professions talked about the medical cannabis program, addressed a study of patient tax exemptions, and discussed patient trends.

Here are some observations from the Thursday October 21st Washington State House Commerce and Gaming Committee (WA House COG) Committee Meeting.

My top 3 takeaways:

• Washington State Department of Health (DOH) Office of Health Professions Director Martin Pittioni provided a briefing on the agency’s medical cannabis program, which he broke into “three components”: patient registration, cannabis consultants, and compliant products.
  • On June 30th, the Washington State Legislative Task Force on Social Equity in Cannabis Licensing Work Group heard a briefing from DOH Medical Marijuana Program Manager Allyson Clayborn about department responsibilities for patients, caregivers, and medical practitioners.
  • Pittioni told the committee that of the three aspects of the program, the “voluntary confidential medical marijuana authorization database” was the “core” (audio - 4m, video, presentation).
    • He noted the system was “not voluntary for minors, and in essence, that registry and database allows us to create a process for producing recognition cards for qualified patients and designated providers.” A patient receiving a medical cannabis authorization “from their doctor can schedule an appointment with a certified consultant and be entered into the database and receive a recognition card,” said Pittioni
    • While under the authority of the Office of Health Professions, Pittioni cautioned that consultants were “not technically considered health providers, they can only work as a consultant in a medically endorsed retail store” which was required to have a consultant on staff. Consultants were empowered to “enter patient and designated provider information from the authorization form into the database” and produce recognition cards, he said, as well as “help the patient with selecting products that may help with their qualifying condition, describe risks and benefits of methods for using products,” and offer advice on product storage, usage, and what was allowed under current law. “What they’re not allowed to do,” he commented, was provide “medical advice, they’re not allowed to diagnose any conditions or recommend any changes in treatment,” nor were they “allowed to open and use actual products while demonstrating how to use” them.
    • Medically compliant cannabis products had “testing requirements...in addition to the floor set by” the Washington State Liquor and Cannabis Board (WSLCB), whose staff Pittioni said had collaborated well with his office, most recently on “clarifying product packaging.”
      • On September 14th, WSLCB staff published a policy statement on Structure or Function Claims Concerning Marijuana [Cannabis] Infused Products followed by a second policy statement dealing with False or Misleading Statements Concerning Marijuana [Cannabis] Infused Products on September 30th.
    • He described the “enhanced standards” for compliant items:
      • Testing for “prohibited pesticide and heavy metals, and mycotoxins as those may be harmful” for patients with compromised immune systems
      • Additional labeling requirements
      • Larger “serving size options”
      • Specialty logos “intended to help the consumer more easily identify what product actually meets the compliance standard.”
  • Delving into patient recognition cards, Pittioni said there were “two sub-buckets here” of “folks that actually are medical marijuana patients” including “a part of the community that we don’t touch at all that simply are benefiting from marijuana legalization.”
    • Adult patients can “get an authorization from their health care provider and then be done,” electing not to register in the database. This allowed for “more limited benefits” like the right to cultivate a smaller number of cannabis plants and hold more than the adult possession limits.
    • Patients registering their authorization gained “significant additional benefits”:
      • “​​May purchase 3 times the recreational limits
      • May possess 6-15 plants if authorized
      • May purchase high-THC products, when available
      • Purchases at endorsed stores are not subject to sales tax
      • Arrest protection
      • May participate in a cooperative
      • May purchase immature plants, clones and seeds from a licensed producer”
  • SB 5052---passed in 2015---merged medical cannabis production and distribution into the adult use market and required the state to use a third-party entity “to create and administer a secure and confidential data system that is not hosted by DOH to safeguard contents from either required or unintentional disclosure” (audio - 4m, video).
    • Security for the patient registry was important, Pittioni commented, since the database included “names and other personally identifiable information” of participating patients. He told lawmakers this information was “exempt from public disclosure requests, inspection, or copying.” Moreover, Pittioni stated that personal information of patients in the database “must not be susceptible to linkage by use of data external to the database.” The registry was first created following outreach efforts to stakeholders, “persons with the relevant expertise,” patients, doctors, and others, he added, and the law included “strict provisions” for data not to “be shared with the federal government or its agents unless a particular qualifying patient or designated provider is convicted in state court for violating” RCW ​​Chapter 69.50 or Chapter 69.51A.
    • Pittioni said the selected database vendor (cloudPWR at the time of publication) was also “required to perform what are called [Service Organization Control] SOC 2 security audits twice a year” in order to identify “weak points that may be at risk for hacking.” He indicated that “to date, since the inception of the program, we have no known hacks or breaches of the data.”
    • On November 5th, shortly after Pittioni’s presentation, DOH staff published a request for information (RFI) “seeking procurement planning directed by state and agency policies and standards, to reprocure for a Medical Marijuana Data Registry.” The RFI asked that prospective vendors respond to a questionnaire by January 7th to help department staff plan for acquiring a system to support:
      • Healthcare practitioner portal for Authorization management.
      • Retail Store portal for Recognition Card management and running reports.
      • Patient portal that allows the patient to download an electronic recognition card that can be stored and accessed from a mobile device.
      • Recognition card verification for law enforcement officers.
      • Card expiration and renewal tracking and management.
      • Admin portal that allows DOH to manage retail stores and users, communicate to users, audit user activity, run reports, and make configuration changes.
  • Turning to active rulemaking, Pittioni expected committee members were “already aware” that “we suspended the in-person demonstration for” cannabis consultants to obtain a cardiopulmonary resuscitation (CPR) card due to the coronavirus pandemic. DOH officials were also looking at rulemaking for “expanding and updating the initial training program learning requirements, updating who can teach the initial training courses to support a more diverse pool of candidates, and adjusting the annual” continuing education requirements to allow for “more creative, self-study options,” he said. Pittioni conveyed that the goal of any rule changes would be to ensure “that our consultants are up to date with industry standards, and get accurate information about rules and policies, and connect them to us as a resource” (audio - 1m, video).
  • Chair Shelley Kloba brought up the distinction between authorized and registered patients, noting those patients that registered for a recognition card received “a set of privileges...that are not available to” authorized patients. “One in particular is arrest protection, versus an affirmative defense,” she stated, finding this made “two classes of patients” with authorized patients “a second class” despite no difference in medical need. She asked Pittioni for “the rationale behind the start of this program and the continuation of this program given that” it created tiers for care. Pittioni demurred, suggesting the answer was “back in the legislative intent from 2015” and that he hadn’t been involved in the program at that time. He promised to “work with my staff to come back with what it is we can unearth” about the history of the bill (audio - 3m, video).
    • HB 1105, prime sponsored by Kloba in 2021, proposed expanding arrest protections to all authorized patients and was passed by the Washington State House of Representatives (WA House) on March 1st. The bill was heard by the Washington State Senate Labor, Commerce, and Tribal Affairs Committee on March 16th and recommended in executive session on March 18th. The bill would remain active during the 2022 legislative session.
    • Find out more about the passage of SB 5052 from histories of medical cannabis implementation in Washington state by DOH and WSLCB staff, as well as the legislature. Sarah Mariani, Substance Use Disorder Prevention and Mental Health Promotion Section Manager in the Department of Behavioral Health and Recovery (DBHR) at the Washington State Health Care Authority (WA HCA), produced Lessons Learned from Marijuana Legalization in Washington State covering medical implementation in addition to other topics at the 2017 Prevention Summit.

• Pittioni discussed the DOH response to a Washington State Joint Legislative Audit and Review Committee (JLARC) review of tax preferences on compliant products (audio - 4m, video).
  • Explaining that “in 2021 JLARC conducted a study to help assess if the tax preferences for cannabis patients should be contiue[d],” Pittioni said the study had “a bit of a side effect” of bringing to light “that there was some ambiguity around what product actually qualified for tax exemptions, and in essence, the core issue there was, is that tax exemption there for just DOH compliant product, or does it apply to any cannabis product that is purchased by a card-holding patient.”
    • The review included exemptions in RCW 82.08.9998, RCW 82.12.9998 and RCW 82.04.756.
  • Pittioni said allowing the exemption for all items was “our longstanding interpretation.” His office had reached out to Washington State Department of Revenue officials and planned “in the next few days...to come out with a policy, an interpretive statement, that will essentially...clarify for the community” that this interpretation “would continue to hold.” He confirmed this meant “any cannabis product would remain eligible for that tax exemption.”
    • The day after the committee meeting, DOH staff published a policy statement on “compliant medical products.”
    • Learn more from the Tax Preference Preliminary Report by the Washington State Citizen Commission for Performance Measurement of Tax Preferences, as well as the Chair’s Draft Combined Comment form with the group’s October 2021 recommendation to maintain medical cannabis tax preferences.

• Pittioni covered medical cannabis patient trends, with new statistics showing authorized patients were on average “slightly older” and the number of recognition cards issued or renewed had been declining (audio - 5m, video). 
  • In 2019, the average patient age was 50, but Pittioni showed that it had since increased to 52, with the most common authorized condition being “intractable pain.” The average age of patients who were minors “continues to be 12,” he indicated, with the most commonly authorized condition being epilepsy. 
  • Additional statistics in the presentation:
    • “​​91,730* Total cards created
    • 4,314* Avg. cards created quarterly
    • 14,293 Active patients
    • 157 Actively endorsed stores
    • 607 Active consultants
      • *Total cards created are not representative of total ACTIVE cardholding patients. The numbers listed represent initial cards and cards that were replaced, renewed, corrected or revoked.”
  • Pittioni mentioned a trend line for patient registration cards from July 2016 through June 2021, stating the provided numbers accounted for “each initial renewal and replacement card created for both patient and designated providers.” The numbers showed a “downward trend...of the number of cards getting issued,” he noted. Although Pittioni didn’t have statistics for the second half of 2021, as “projected out...we would see kind of a plateauing of the decline” of registry participation. Pittioni warned it was “too early for us to say that we will see that,” and it was possible the number of patients voluntarily registering would continue to decline.
  • Trying to minimize speculation, Pittioni said “we don’t really know a lot about what may be behind some of that continued decline, there’s a lot of talk around COVID impacts” such as limited access to medical professionals or “hesitancy to go into a store which includes removing a mask.” There was a lack of clear data on the motives of patients, he stated, but assured the committee his office would continue to work on registry management, and participate in the Cannabis Science Task Force (CSTF).

Information Set