Why the Long Wait for Medical Marijuana in N.H.?

Dec 24, 2015

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When New Hampshire legalized medical marijuana in July 2013, no one expected the program to be up and running overnight.

Two and a half years later, however, none of the dispensaries envisioned under the new law are open, and the only patient who has received medical marijuana had to file a lawsuit for the right to travel out of state to get it.

So what’s taken so long?

One reason is money. John Martin, licensing chief for the Department of Health and Human Services, says it was a challenge to launch a new program from scratch without additional resources.

“Everyone that’s been associated with this project had a full time job with the department,” Martin says. “And it’s not like they were told you’re no longer going to do what you’re doing, you’re going to work on therapeutic cannabis. They were told: You’re going to continue doing everything that you’ve been doing, and you’re going to work on therapeutic cannabis.”

The other reason is the state’s decision to regulate the market for medical marijuana as tightly as possible. That meant that, unlike in other states, patients were prohibited from growing their own or legally possessing small amounts of the drug before the dispensaries – called alternative treatment centers – were open for business.

Critics of the long delay say that decision not only kept patients from purchasing a legal medication; it also delayed the state’s ability to collect fees authorized under the law, which could have been used for administrative costs.

Rep. James MacKay, the chairman of an advisory council overseeing implementation of medical marijuana, sympathizes with patients’ concerns about the pace of the program launch. But, he says, the state’s deliberative approach has been carefully considered.

“By going slow, I think we’ve thought through a whole lot of areas where there could’ve been discontent,” MacKay says. “And in the end, even though it’s been slow, it’s been progressive, thoughtful, and I think we’ve stopped some difficult things from arriving afterwards. And we’ve learned from what other states have done and, as usual, we do it differently.”

Some deadlines met before delays

While patients and their advocates lobbied for swift implementation of the new law, state health officials were busy behind the scenes laying the groundwork. That included establishing rules for a registry that would track patients and caregivers, as well as writing guidelines for how the dispensaries would operate.

Lawmakers had given DHHS until January 2015 to accomplish those two tasks, and the department met those deadlines ahead of schedule.

That’s when things started to get more complicated.

January 2015 was also the deadline for certifying at least two alternative treatment centers, provided that the state had at least two applicants that were up to its standards. But by that point the state was just wrapping up the application process. It would take another four months before DHHS finalized its selection of three dispensaries – Prime Alternative Treatment Centers of New Hampshire, Sanctuary ATC and Temescal Wellness.

Michael Holt, a DHHS rules coordinator, says it would have been difficult, if not impossible, to write the dispensary rules at the same time the department was choosing which dispensaries to certify.

The department tried to move quickly to get the rules done early, Holt says, but “we had the same deadline for two things that necessarily had to be set apart.”

Holt and Martin say DHHS officials researched rules in other states — paying close attention to New England — and spent significant time researching how other programs were structured before drafting New Hampshire’s rules.

Each draft then had to go through a full public hearing process and get additional approval from an outside panel, the Joint Legislative Committee on Administrative Rules – a process that took several months.

When DHHS finally began the dispensary selection process, a small team had to comb through 14 applications that numbered several hundred pages each, making sure each applicant adhered to the new rules.

“It was very much uncharted territory,” Martin says. “I mean, it’s just, it’s a brand new program with nothing else quite like it — so you know that’s why it was necessary for us to do as much research as we could possibly do and really just be very careful as we developed everything we were going to need to make this program successful.”

(For an interactive version of this timeline, click here.)

Compared to other states, N.H. slower than most

In the roughly two dozen states that have legalized medical marijuana, the average time to launch the program ranged from nine to 18 months, says Karmen Hanson, who tracks the issue for the National Conference of State Legislatures.

"Every state’s structure is different enough that you can’t just pick up a model way to do it, drop it in your state and expect it to work,” Hanson says.

Patients and advocates have argued that New Hampshire’s delay was caused, in part, by its reluctance to issue the ID cards that would allow qualifying patients and caregivers to legally possess marijuana for medical purposes.

Unsure whether the laws allowed them to issue the cards before the dispensaries were open, DHHS sought a ruling from the attorney general in early 2014. The AG’s office advised them to hold off on issuing the cards.

That meant patients caught with small amounts of medical marijuana were subject to criminal penalties.

Karen O’Keefe, director of state policy for the Marijuana Policy Project, which lobbies state legislatures in favor of medical marijuana, says that set New Hampshire from many other states.

“The one aspect of the program that most states have implemented very, very quickly is just providing patients with protection from being arrested and hauled into court for possessing medical marijuana, regardless of the source,” O’Keefe says.

In Delaware, for example, it was four years from the time the state passed a medical marijuana law to when the first and only dispensary opened its doors. But Delaware allowed certified patients to join the state’s registry a year after the law went into effect, and it began issuing ID cards that same year.

Another thing that sets New Hampshire apart is that it doesn’t allow patients to grow their own medical marijuana. About 16 other states, including Rhode Island and Vermont, have some kind of home cultivation provision.

O’Keefe argues that, if the state had allowed patients and caregivers to register for its ID card program earlier, it might’ve also helped to speed up the program’s implementation. Revenue from the registration fees could have been put toward the administrative costs of launching the program. Instead, the department had to wait until it could collect fees from the dispensaries, which didn’t start coming in until this year.

DHHS officials declined to speculate on whether that would have jumpstarted the program’s implementation.

“The reality is, I think for every problem that it solved, it would’ve created a whole host of other problems,” Martin says. “I think the decision to hold off - I think it was the legally sound way to go with respect to that issue.”

What’s next?

The last few months have seen a few significant steps forward for medical marijuana in New Hampshire.

The alternative treatment centers chosen by the state  have all settled on their locations and are in the process of getting approval from local officials and holding public forums.

DHHS officials hope to issue conditional certifications soon, which would allow the dispensaries to start cultivating marijuana; it can take about three to four months to produce usable plants.

And the wait for patient ID cards is over, thanks to Linda Horan, an Alstead woman with terminal lung cancer.

In November, Horan successfully sued the state for access to her ID card. After a judge ruled in her favor, the attorney general’s office ordered DHHS to start issuing the certifications to other patients and caregivers, too.

MacKay, chair of the state’s Therapeutic Use of Cannabis Advisory Council, says the real work is still just beginning — once the system launches, he hopes the council can take a more active role in measuring the program’s impact.

“It was a significant step-by-step process,” MacKay says. “We’re there now. We want to make sure there’s nothing that can go wrong and to protect the rights of these individuals who have a very significant need.”