Maine is cracking down on how caregivers grow and distribute medical marijuana, allowing surprise inspections and implementing a plant-to-patient tracking system.
The state Department of Health and Human Services issued new rules Wednesday that tighten Maine’s fast-growing and changing medical marijuana program.
The department didn’t issue a statement on the rules, which take effect Feb. 1, and Maine’s medical marijuana community spent the day scanning the document trying to figure out which changes represent a new state policy and which ones are simply legislative housekeeping.
DHHS has spent more than a year working on the new rules, which fold in laws passed by the last two legislatures, establishes a system to monitor and enforce compliance actions, and sets requirements for patient designations, caregiver and dispensary reporting and record-keeping, and written certifications, including changes to the medical provider-patient relationship, said spokeswoman Emily Spencer.
The rule prohibits a visiting patient from another state from cultivating marijuana for medical use, requires a medical provider’s endorsement on any petition to add to the list of conditions that can be treated with marijuana, requires nursing facilities that assist a qualifying patient to have storage, use and administration policies, and tightens up the definition of a collective, Spencer said.
Caregivers are prohibited from participating in a collective, but they can rent separate, self-contained, locked and secure locations within a building where other caregivers grow, Spencer said. Caregivers may not help anoher caregiver in cultivation or processing medical marijuana, although cultivation materials used by the caregivers in a common building can be stored in common areas.
Spencer noted the rules don’t go into effect for 90 days.
“(Our) intention was to provide sufficient time for the community to evaluate and modify any of their current practices to remain in compliance,” Spencer said.
The Medical Marijuana Caregivers of Maine, a state-based trade group, is reviewing the new rules, and plans to hold an educational forum for members to talk about their impact on Nov. 18, said Catherine Lewis, the chairwoman of the group’s board and a consultant who works with new caregivers trying to break into the Maine market.
The group’s Facebook page was buzzing Wednesday, but mostly with questions about what the new rules say.
Currently, eight state-licensed dispensaries and at least 3,200 caregivers serve more than 50,000 patients with a qualifying medical condition, such as cancer, PTSD, or intractable pain. That is a 36 percent year-over-year jump in patient certifications, and a 44 percent jump in caregivers.
The rules require caregivers to submit to unannounced inspections by a Maine Center for Disease Control & Prevention inspector or a contracted worker like a former law enforcement agent, even if they are growing or processing the marijuana in their own homes, said Matt Dubois, a Bangor-area lawyer who represents a wide range of cannabis businesses. Refusal to grant immediate entry can result in license suspension, civil fines or even arrest, he said.
“This is a really big change in the way the state handles caregiver compliance,” Dubois said. “It is a big invasion of privacy for the small caregivers growing in their home. It means that they have to be ready to open their door, at any time of the day or night, because they are growing medicine for sick people. That can make every knock at the door feel very intimidating, make them feel like criminals when they’re not.”
Under current rules, the state will inspect caregivers if it receives a complaint, but the caregivers can refuse immediate entry without penalty and reschedule the visit to a time when they can have an attorney with them, Dubois said. The new rules explicitly state routine inspections also will occur, which would mark a change in DHHS’ practice, said Dubois.
The new rules also require patients to submit to inspections, although the state will give them a day’s notice before entering their home, Dubois said.
Caregivers also would be required to document the transport of marijuana between their grow sites and the place where they dispense the medicine to a patient, whether the transaction site is the caregiver’s shop or a patient’s private home, Dubois said. Currently, the state only requires dispensaries, which handle a high volume of marijuana, to fill out these so-called trip tickets.
TRACKING SALES
On the recreational marijuana front, lawmakers who spent almost a year writing a regulatory bill that just fell to a gubernatorial veto looked at safeguards such as the trip ticket as a way to tamp down the diversion of excess marijuana cultivated in the legal market into the black market in nearby states where marijuana remains illegal. That may be what DHHS was trying to do with this new rule, Dubois acknowledged.
The trip tickets require caregivers to document every individual delivery transaction, including the identification number of the patient who will be receiving the marijuana, the amount and kind of marijuana being delivered, and when and where it is being delivered, Dubois said. He said the trip tickets will increase the cost of delivery, and put caregivers at risk of accidental noncompliance.
“It will discourage caregivers from traveling,” Dubois said. “That will put medicine out of reach for some low-income or disabled patients, or those who live in rural areas.”
He said it also will make life more difficult for caregivers who are renting out shops to make the most of the short-term patient market. In some circles, that is called cycling – taking on a patient for a single retail transaction, sometimes serving as their caregiver for as little as 15 minutes, and then taking on a new patient as soon as the first patient’s transaction is done.
This gets around the five-patient limit under current law.
A TRIP-TICKET DILEMMA
A caregiver who operates a downtown storefront would not know who might walk into their shop that day to become a short-term patient, making it impossible to fill out the trip ticket – with patient identification number included – that would be required to transport marijuana from their grow facility to the storefront. Instead, it would require the caregiver to have the new patient’s fully documented marijuana delivered from the grow house.
Cycling is not illegal, but critics say it violates the spirit of the medical marijuana law. Cycling allows some caregivers to serve hundreds of patients in a year, and creates the kind of customer turnover that can pay for downtown shops now sprinkled from Sanford to Hallowell to Ellsworth. Such high-profile activity has prompted some towns to cry foul and look to find ways to prohibit retail caregiver operations, demand business license fees, or exile them to industrial parks.
Trip tickets were not included in the department’s initial proposed rules, which were introduced in the spring and the subject of a June public hearing. As a result, no one complained about them. Dubois believes the addition of this new burden in the final rules could open the department up to judicial review, which is the only avenue left to possibly overturn the new requirements.
PHONE CERTIFICATION SCRUBBED
Under the new rules, patients who live in far-flung parts of Maine will have to undergo an in-person physical examination with a medical provider to obtain medical marijuana certification, Dubois said. In the past, medical providers have been able to approve certification over the phone, or by Skype. This deals a blow to rural patients, especially those living on Maine’s islands, he said.
The rules include other, smaller changes, such as allowing DHHS to review a caregiver’s tax records to make sure they are in compliance with state sales tax rules, and requiring caregivers to supply the state with more records, including a yearly tally of their total patient count and the start and end time for each patient designation. This patient count and length of patient relationship is another way Dubois thinks the state is trying to discourage but not outright ban cycling.
Penelope Overton can be contacted at 791-6463 or at:
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This story was updated at 5 p.m. Nov. 9 to include comments from the Department of Health and Human Services.
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