By: Micah Bucy
Most who follow the medical marijuana industry know that in most states the roll out of medical marijuana has been controversial and glacially slow for businesses and patients alike. Lawsuits challenging the licensing agencies’ process and choices bear some of the responsibility. For instance, as discussed in our previous series of blogs, in Maryland, where enabling legislation was enacted in 2013, there are ongoing lawsuits over the diversity, or lack thereof, in the applicants granted a Stage 1 license (preliminary license approval) and the geographical distribution of Stage 1 licenses, with no real end in sight for the implementation delay.
The legal struggles faced in Maryland and other states pose the question for prospective medical marijuana businesses, doctors, and patients in Pennsylvania: what will be the aftermath of the Pennsylvania Department of Health’s (DOH) June 30, 2017 much awaited award of permits? Obviously only time will tell, but one thing is certain: of the more than 500 applications DOH received, less than 50 permits will be granted. The unsuccessful applicants may want answers as to why they were not chosen, and may be tempted to turn to the courts.
But there is cause for hope that the free-for-all legal challenges occurring in Maryland will not be repeated in Pennsylvania because DOH included in its regulations an appeals process for unsuccessful applicants – a measure that is noticeably absent from Maryland’s regulations. Of course, this is not to say that there will be no delay; many unsuccessful applicants will assuredly appeal DOH’s decision through the agency process and into Pennsylvania courts. But having an initial agency appeals process will likely winnow the field of challengers, consolidate challenges to DOH’s scoring process, result in non-conflicting decisions, and shorten the length of time medical marijuana permittees are relegated to purgatory, which is what the industry wants and patients need.
In an effort to steer clear of the problems faced in rolling out medical marijuana in other jurisdictions, DOH has promised numerous times to be transparent and forthcoming about the selection process. For unsuccessful applicants, this promise of transparency will be paramount to mounting a challenge to DOH’s denial of its application and/or to improving an application in the Phase II process that is inevitable to occur sometime in the future. Specifically, pursuant to its regulations, DOH will provide written notice to each applicant that is not granted a permit. Upon receiving DOH’s denial letter an applicant is entitled to appeal the denial to DOH, essentially asking the agency to reconsider its decision, and if the appeal fails only then can the applicant appeal the decision to the Commonwealth Court.
But there are important intermediate steps between receiving DOH’s denial letter and asking DOH to reconsider its decision. First, a “debriefing” session with DOH to discuss the denial must be filed within 30 days. Second, an unsuccessful applicant should assemble a legal team that is conversant with the Pennsylvania medical marijuana laws/regulations and able to serve as an effective advocate to help prepare for the debriefing session and any appeals that might follow. Third, there is much work to be done to prepare for the debriefing session. The debriefing session is likely the only opportunity for an applicant to receive direct feedback from DOH, the scoring agency, on its application. It’s not known at this time, but presumably the debriefing session will include a review of the strengths and weaknesses of a given application and will also include a review of the 1,000-point scoring rubric DOH used to guide its decision-making process. The information learned in this session can be instructive if the applicant applies during the Phase II process and may serve as the building blocks for any successful appeal of DOH’s denial.
Cannabis Law PA is well-suited to assist in preparing for and attending the debriefing session as our attorneys have extensive knowledge of the medical marijuana regulations and the application process, while also having years of experience advocating on behalf of clients before Pennsylvania administrative agencies.