The change won't affect the DCS' ongoing discrimination of state-authorized medical-cannabis consumers in the foster-care program.
But it will likely make a difference for Phoenix lawyer Rebecca Masterson and, potentially, other prospective foster-care parents.
"I am moving forward with licensing, and am thrilled to be able to offer more support to my teen foster son," Masterson told the Phoenix New Times on Friday. "DCS, my foster son, and I all win here."
"I appreciate your patience as the team worked to reach this conclusion and truly appreciate your decision to foster the child in your care." — Michael Faust, licensing supervisor at the Arizona Department of Child Safety
As a New Times article detailed on Wednesday, Masterson applied for a foster-care license after she took in a 16-year-old boy who has "anger issues" and no parents. She wrote about her experience earlier this month on her personal blog, Sincerely Becca.
She admitted to DCS caseworkers that she was an authorized caregiver under the state's 2010 medical-marijuana law, and that she gave her 12-year-old son, who's adopted, hemp oil with cannabidiol (CBD) that helps control his self-destructive "tics."
CBD is a compound found in cannabis plants that produces no psychoactive effects, unlike the better-known THC.
The state agency denied her license based on a 2011 policy that bans people from becoming foster parents if they consume medical cannabis legally under Arizona law, a decision the agency said stemmed from the federal ban on cannabis.
Other cannabis-friendly states, however, including California, Colorado, and Oregon, have no blanket prohibition against medical-cannabis consumers being foster-care parents.
Masterson, who doesn't use cannabis herself, canceled her medical-marijuana card and appealed the decision, but told caseworkers she would still provide commercially available hemp oil to her son.
The DCS refused her a second time. On September 7, the same day New Times began making inquiries about her case, the agency updated its policy to specifically exclude people who possess or use cannabis extracts like CBD.
The new policy statement referred to a January 2017 warning by the U.S. Drug Enforcement Agency that it considered extracts a Schedule One drug under the Controlled Substances Act.
Masterson later showed DCS licensing supervisor Michael Faust that the same CBD product she had purchased at an Arizona dispensary, Charlotte's Web Everyday Pure Hemp Extract Oil, was being sold online by Target and other stores.
Faust told her on September 12 that it appeared the oil she used for her son, which is made by CW Hemp of Colorado, "is an industrial hemp-based product" and implied the agency might take a different "position" on it. He was waiting for advice from the state Department of Health Services, which oversees the state medical-marijuana program.
The next day, she asked Faust what was going on, but he didn't reply. She asked again on Friday, September 15, the morning after publication of the New Times article. Later that morning, he told her the DCS was reversing its decision on withholding a license because of the hemp oil in her home.
After consulting with DHS and lawyers from DCS, he wrote in an email, the DCS concluded that since the product wasn't regulated by the medical-marijuana law, "it is therefore acceptable and should not preclude an individual from applying for and being approved as a licensed foster care provider," Faust wrote.
The DCS will revise its "internal procedures" and make a distinction between hemp-based products and "THC or CBD-based products which are not permitted," he wrote. "Based on this decision the outstanding question of administering the product at your ex-husband's residence is moot. I appreciate your patience as the team worked to reach this conclusion and truly appreciate your decision to foster the child in your care."
Mary Ann Rounseville, director of content strategy for CW Hemp, directed questions about the decision to Realm of Caring, a nonprofit, pro-medical-cannabis organization funded in large part by CW Hemp.
"It sounds like it's definitely a victory for this family and for foster homes," said Realm of Caring CEO Heather Jackson of Friday's DCS decision.
Both Jackson and Rounseville denounced strongly the DEA decision that CBD is technically illegal, pointing out that CW Hemp's product is sold in all 50 states.
Many other companies besides CW Hemp manufacture and distribute hemp oil with CBD. In January, the Hemp Industries Association, a trade group that promotes and supports hemp companies, sued the DEA in an attempt to block the DEA from enforcing its rule on cannabis extracts like CBD.
The HIA argues that the U.S. Ninth Circuit Court of Appeals ruled in 2004 that hemp is not a Schedule One drug, and that a pro-hemp "Farm Bill" passed by Congress in 2014 further clarified that "consumption of hemp-derived products containing cannabinoids" was allowed.
HIA attorney Patrick Goggin said on Friday that the case is awaiting a hearing.
Masterson said had submitted all the required paperwork for a foster-care license before the agency's initial denial, and is now enrolled in a condensed, accelerated program with DCS. She hopes to receive the license in a few weeks, following a home inspection and "home study" by caseworkers.
"I am particularly grateful to Phoenix New Times for raising this issue and helping change this piece of DCS policy," she said.
For now, the DCS will continue to reject state-authorized medical-marijuana patients simply because they possess or consume cannabis — while allowing prospective parents who use alcohol or prescription drugs.