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Spring 2006
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

Counties Challenge Law Creading I.D. Card Program; California Changes Record Keeping Requirements

By Ellen Komp

Nearly ten years after its passage by the voters of California, Proposition 215 has been challenged in court by the county of San Diego, whose Board of Supervisors voted last November not to implement the medical marijuana ID card program called for in SB420.
After San Diego NORML threatened to sue the county for failing to implement state law, San Diego county counsel John J. Sansone filed a lawsuit on January 20 in federal U.S. District Court, charging that federal drug laws and international treaties pre-empt both state medical marijuana laws.
On Jan. 24, six patients, caregivers and doctors, along with the American Civil Liberties Union (ACLU), Americans for Safe Access (ASA) and the Drug Policy Alliance (DPA) announced that they would intervene in the suit. After reading the ACLU’s motion to intervene, the county withdrew its lawsuit from federal court on Feb. 1 and filed the same suit in San Diego Superior Court —a state court— the same day.
Allen Hopper, a lawyer with the American Civil Liberties Union, said, “In federal court, there is well-established case law plainly holding that a county cannot sue the state in federal court alleging a federal constitutional claim, which is exactly what they were doing.”
But Hopper thinks San Diego faces more challenges in state court. “The county’s substantive argument about preemption is just wrong,” Hopper said. “The Controlled Substances Act says there is no preemption unless there is a ‘positive conflict,’ which has been interpreted by the courts to mean a state law that requires an action which is itself a violation of federal law. That is not happening here.
“ The 9th Circuit Court of Appeals ruled in the Conant case that doctors who recommend marijuana for patients are not violating any federal law, and specifically are not aiding or abetting patients to violate federal marijuana laws,” said Hopper. “The ID cards are even further removed from federal criminal activity.”
On March 21 the California Attorney General filed papers arguing there is no legal reason for the court to entertain the lawsuit. Nathan Barankin, spokesman for Lockyer, said the court could rule on the government’s brief in May.
On the other side, San Bernadino county has joined the suit and Riverside and Tuolomne counties considered doing so. The Riverside Press Enterprise editorialized, “If Inland supervisors are so concerned about illicit drugs, perhaps they should save the pot-related legal fees and spend the money to escalate efforts against the far greater scourge of methamphetamine. San Bernardino County spends $400,000 a year alone on dentists to treat uninsured meth users whose teeth have been destroyed by years of addiction.” Neither county joined the suit, but Tuolomne voted at the same February 14 meeting not to implement the law either. While keeping an eye on the San Diego suit, San Benito County voted that same day to implement the program, with Sheriff Curtis Hill and Hollister Police Chief Jeff Miller supporting it.
Only 16 of California’s 58 counties have currently implemented a state ID card program: Amador, Contra Costa, Del Norte, Humboldt, Kern, Marin, Mendocino, Napa, Riverside, San Francisco, San Mateo, Santa Barbara, Shasta, Sonoma, Tehama, and Trinity. Prices range from $108 in Santa Barbara to $0 (for now) in Marin. Medi-Cal patients are charged half price.
The California Department of Health Services (CDHS) predicts most counties will have programs in place by mid 2006. F. Aaron Smith of Safe Access Now, who has received a grant from the Marijuana Policy Project to work with counties towards SB420 implementation, says Butte, Calaveras, Colusa, Glenn and Ventura counties are looking hopeful.
Also, Fresno is looking for implementation by April, but Lassen County adopted a “wait and see” attitude in December during a meeting where Supervisor Bob Pyle said the program is “nothing more than another scheme from the enemy within to destroy this society.”
Karen O’Keefe of the Mariuana Policy Project sent out an email on February 23 asking patients in Alpine, El Dorado, Kings, Lassen, Madera, Mariposa, Merced, Modoc, Mono, Nevada, Orange, Placer, Sacramento, San Luis Obispo, Siskiyou, Solano, Sutter, Tulare, Yolo, and Yuba counties to call their health departments and urge them to implement the program, “using record-keeping policies that maintain patients’ confidentiality.”
Confidentiality Questions
After receiving protests from the San Francisco and Santa Cruz departments of public health, Assemblyman Mark Leno and others, CDHS amended its “Medical Marijuana Program County Handbook” in October, stripping away record-keeping requirements for counties as they come online with the program.
On October 28, health departments in all California counties as well as members of the County Health Executives Association and the California Conference of Local Health Officers were sent letters from the CDHS, advising them that Section 5.0 of the Handbook had changed.
See http://www.safeaccessnow.org/downloads/DHS_booklet_revision.pdf
Where the August 2005 version of the state-issued Handbook required counties to maintain personal information on patients, caregivers and doctors for one to three years, the updated version says counties must only “maintain [unspecified] records of identification card programs.”
According to Kris Hermes of Americans for Safe Access, counties need only keep on file an ID number and expiration date to meet state requirements and to avoid breaches in patient confidentiality.
Counties may decide individually whether or not to keep any of the patients’ or caregivers’ personal information on file, and San Francisco and Marin counties currently retain no unnecessary records; nor does Santa Cruz, which hasn’t officially signed on to the program.
But county officials are not necessarily taking note of the changes. In Mendocino, one of three pilot counties for the program (along with Amador and Del Norte), MPP administrator Lorraine Ahlswede said in an email she “did not understand the reason behind the revision —there was NO explanation or discussion about maintaining or not maintaining records or which records needed to be maintained.” Ahlswede said she continues to keep patients’ addresses and medical information in a locked file cabinet in her office.
Ahlswede said she only had one person rescind their application after forms were amended last July to warn patients their information could be subpoenaed by the federal government. “The usual reaction was, ‘The federal government has always claimed the right to prosecute medical marijuana patients and the [Gonzalez v. Raich] Supreme Court decision upheld that right, so the Supreme Court just maintained the status quo,’” she said.
Previous to the state program, San Francisco and Santa Cruz counties had ID card programs that returned or destroyed all patient and doctor records once an ID was issued. A November 11 letter from Santa Cruz Health Services Agency director Rama Khalsa urged CDHS to adopt Santa Cruz’s model, saying her office had received no complaints about their program from law enforcement, patients, caregivers or doctors. See http://www.safeaccessnow.org/downloads/Santa_Cruz_Letter_to_DHS.pdf
ASA has launched a statewide campaign to urge California Department of Health Services to better protect patient privacy,
see http://www.safeaccessnow.org/article.php?id=2892
At this time, ASA is not contacting individual counties, but ASA’s Kris Hermes says, “We are supporting our grassroots in approaching their county officials on this issue. We are also working in collaboration with Aaron Smith, and Safe Access Now, to educate counties on issues of ID card implementation and confidentiality.”
Humboldt County is in the process of re-working their program after being informed by the Civil Liberties Monitoring Project (CLMP) in Redway of the change in state guidelines. Dr. Ann Lindsay of the Humboldt County Health department said only 200 people had signed up for the program, mostly elderly people who needed cards to get medicine from co-operatives. The Humboldt/Del Norte medical board also reportedly objected to the new record-keeping requirements. CLMP is not necessarily recommending patients and caregivers sign up for the voluntary ID cards and continues to defend the rights of those who chose not to register with the program.
In a bizarre development, the owner of Palm Desert’s CannaHelp dispensary struck a deal with city officials to require all of its customers to get a Riverside county card within 30 days. The agreement came as the City Council was about to consider revoking the dispensary’s business license, according to The Desert Sun newspaper.
Dispensary owner Stacy Hochanadel said most of his more than 500 clients appear willing to sign up, and about 10 percent already have cards. He was concerned about the 60 to 80 dispensary clients who live outside Riverside County. But Summer Glenney, a Loma Linda resident, opposes making the cards mandatory, mostly out of concerns for patient confidentiality.
Victoria Jauregui Burns, program chief for Riverside County’s medical marijuana program, told The Sun she would make every effort to safeguard patients’ personal information, even from federal investigators. “They would have to have a subpoena or search warrant, and then we would call counsel,” Burns said.
CannaHelp’s agreement with the city didn’t protect them from a federal raid on March 14. No arrests were made but plants and medicine were confiscated.

Airport Police,
CHP Recognize Law

The LA Airport police now have a written guideline stating, “It is the policy of the Los Angeles Airport Police Division to ensure that individuals in possession of verified Medical Marijuana Identification Cards, pursuant to Section 11362.71 H&S, shall not be detained longer than necessary to verify the information on the Identification Card nor shall their prescribed quantity of marijuana be confiscated.”
In addition to LAX, LA Airport police also enforce the Ontario, Van Nuys and Palmdale airports. According to Dale Gieringer of California NORML, the airport police have jurisdiction over who does or does not get arrested at the airport. “Federal TSA agents lack police authority, they must turn passengers over to the local police,” said Gieringer. The policy is silent on what to do about patients without an ID card.
CHP officers are now instructed to “use sound professional judgment to determine the validity of the person’s medical claim”

As a result of a lawsuit by ASA, CHP officers are now instructed to “use sound professional judgment to determine the validity of the person’s medical claim” if presented with a doctors’ recommendation instead of a card. See http://www.safeaccessnow.org/downloads/CHP_policy_update.pdf
Hollister-Gilroy California Highway Patrol Commander Otto Knorr returned marijuana his agency seized from a Los Angeles-area man days before a contempt of court hearing in February on direction from the Attorney General’s Office.
Opposition lawsuit
Richard Davis, a caregiver who is bringing suit against SB420, is appealing the most recent decision in that case. From Davis’s perspective, patients are voluntarily giving up their rights under Prop. 215 by signing up for the ID card program. Arguably, SB420’s provisions precluding suing insurance companies for losses, and its restrictions on plant numbers and caregiver location apply only to those who sign up for the program.
Pebbles Trippet of the Medical Marijuana Patients Union (Mendocino) points out that a 3rd Circuit Court of Appeals ruling (People v. Urziceanu) issued last September solidifies SB420s protections for collectives and cooperatives, including sales.
More background at http://www.ccrmg.org/journal/05aut/cards.html
To see a current list of counties with programs go to:
http://www.dhs.ca.gov/MMP/County_Programs_&_Business_Hours/CoProgBusHrs.pdf


Oakland CBC Offshoot Will Run Alameda County Card Program

As of June 1, the Oakland Cannabis Buyers Cooperative will have a counter where medical marijuana users and caregivers can apply for California ID cards.
Alameda County Patients Services (ACPS), an offshoot of OCB Cooperative, Inc., was awarded a contract to handle the applications by a unanimous vote of the Board of Supervisors on April 10. ACPS was the only bidder and the obvious choice —its parent company has to date issued some 57,000 OCBC cards.
The state cards —sometimes called “420 cards,” as in Senate Bill 420, which created California’s ID card program— will be honored by law enforcement, supposedly. “It’s a tacit agreement,” says ACPS director Jeff Jones. “I feel these cards will be the most-supported by law enforcement officers.”
Jones expressed concern, shared by many rank-and-file patients, that the existence of state cards “could affect whether just a doctor’s statement will now be enough to protect you from arrest.”
ACPS staff “will ensure that applicants have brought in all the information needed to get a state card before starting a process,” says Jones. The law does not provide for reimbursement if a patient begins the application process but can’t complete it within 30 days.
To qualify for the state card, patients must have in hand a current letter of approval from a licensed California doctor stating the relevant diagnosis; proof of residency in the county; and a valid photo ID.
The county Health Department will decide how “current” a doctor’s letter has to be to qualify a patient for a card. Jones has heard talk of six months.
The state card will be good for a year from the date of issue, which troubles some doctors. “There are patients whom we give three- and six-month approvals for a reason,” says a San Francisco cannabis consultant. “They need to be seen for follow-up. If they get a card from the state that’s good for a year, they might not come back in.”
ACPS will verify the applicant’s information and transmit it to the State Department of Human Services. DHS will take a few days to produce a card, which will be mailed to ACPS and then mailed to or picked up by the applicant.
The state card as issued in Alameda County will cost $50; $13 goes to the state, $10 to the county.
OCBC cards, widely honored at dispensaries, will still be issued with the cost “remaining the same for now,” Jones says, “$25 for new members, $20 for renewing members.”
Jones adds, “OCBC cards are also for those who want to be part of a political environment that supports medical access. Or who may need legal or medical referrals from time to time. Also, for those patients and caregivers who live in counties that have not started the state ID program, and those who are leery of disclosing
The OCBC is the oldest established medical cannabis ID center in California. It opened as a dispensary after Prop 215 passed in 1996, then shifted emphasis to the issuing of membership cards for patients and caregivers in November, 1998, after being enjoined by federal court order from dispensing cannabis.

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.