Advocates ponder lawsuits on ‘compassion centers’

Patients’ advocates and groups seeking to create medical-marijuana dispensaries say they are considering legal action against the R.I. Department of Health after it rejected all 15 applications for “compassion centers,” citing technical reasons in six of the cases.
Under the state law that authorized dispensaries, approved in June 2009, the state was required to issue the first license by Dec. 23, 2009, for a facility to begin operating in 2010, and then another two for dispensaries to open in 2011.
Various issues – including the H1N1 virus scare last year – delayed the process, but the news Sept. 13 that no licenses would be issued was “really a shock … really devastating,” said JoAnne Leppanen, executive director of the Rhode Island Patient Advocacy Coalition (RIPAC).
Rumors of problems had started to circulate days earlier, Leppanen said, but no one was prepared for this outcome. “Call me naïve,” she said, “but I’m stunned.”
Dr. David R. Gifford, the state health director, said nine of the applicants hadn’t earned the minimum score to qualify – 70 out of 100 points – but the others were disqualified after the scoring for other reasons, including that they exceeded the 25-page limit.
In a Q&A document issued April 29, the department had explained that the limit, which excluded attachments, applied to documents that were “directly responsive” to questions, such as a letter from a zoning clerk, business plan or facility floor plan, but not to any “lengthy document that supplements an answer,” such as a security protocol, operations manual or bylaws.
It’s unclear how many applications were dismissed for their length – but Leppanen noted that the department had accepted them all as complete and in compliance with the requirements, even before public comments were taken and the scoring was done.
Gifford himself said the late-stage disqualifications had occurred in response to eight letters filed by applicants about other applicants; a news release cited “issues about zoning requirements, site control, financing issues and residency requirements.” “We’re very frustrated that we weren’t able to issue a single license,” Gifford said in an interview. “This was the last thing we wanted to resort to.”
Yet none of the applicants got a chance to respond, Leppanen noted – much less to correct the problems – and without satisfactory explanations, “all kinds of theories” are floating around.
“There are some shenanigans in there,” she said, adding RIPAC has worked well in the past with both Gifford and Charles Alexandre, who runs the program. But this time, she said, “What happened is the $900,000-$1 million question.”
Even if it’s true that the applicants “cannibalized the process,” she said, it’s unclear why the department considered objections so late in the process, well after the public-comment period had ended, or why it just rejected everyone instead of trying to correct any technical issues.
“Did they just bungle the process and [say], ‘Oh forget it, let’s just start over again?’ ” she said.
“And the thing that really bothers me,” she added, “is that underlying all the bureaucracy, all the political games, there are real-life people suffering. I thought the Health Department would overcome any shenanigans to put the patients first.”
Several applicants did not immediately return calls seeking comment. Charles Reilly, spokesman for the proposed Thomas C. Slater Compassion Center in Providence, said his group hadn’t received any formal response from the state as of Sept. 14.
Led by Gerald J. McGraw, a licensed caregiver in the state medical-marijuana project, the Slater center has $1.6 million in startup funding, an affiliation with CannBe, a major national medical-marijuana consultancy, and plans to grow into a $2.9 million-per-year operation.
The 238-page application (25 pages plus a wealth of attachments) included letters from a top Providence police official and the city planner, plus endorsements from legislators and from patients. Leppanen called it “very impressive,” one of seven or eight plans she considered “very strong.” Reilly said there was no warning that a rejection was coming, or any suggestion of technical flaws. “We were never told anything other than that our application was accepted as complete,” he said. Asked whether they will appeal, he said, “It’s difficult to say at this point.”
“I can tell you that we have been approached by other applicants as well as other interest groups that are interested in potential legal action,” he said. “I think most folks are waiting to see what the department provides as justification for their materials.”
Leppanen said RIPAC is considering litigation, and it is in discussions with applicants as well as with the Rhode Island chapter of the American Civil Liberties Union.
The Department of Health has said it will return the $250 application fees to all who participated in this round and will issue a new request for proposals in October, possibly with changes to clarify technical issues such as the page limit.
Asked for a timeline, spokeswoman Annemarie Beardsworth replied: “From the time we re-post the RFP until the department makes a final decision, we expect it to be about five months.”
In Maine, where voters approved a referendum legalizing medical marijuana and allowing dispensaries, the first licenses were awarded in July, to the Northeast Patients Group, a Maine-based provider with connections to Berkeley Patients Group in California. The first two of four planned facilities are expected to open within 90 days.
There are about 2,400 registered patients in the Rhode Island medical-marijuana program. While many have a steady supply through caregivers or from their own plants, Leppanen said many struggle, and this year’s weather has ruined many people’s crops.
As a result, Leppanen said, “we have patients who are in pain, nauseous, in chemo[therapy]” and can’t get marijuana. “It’s very high-stakes here. … This is very desperate.” •