The Arizona Department of Health Services continues to spend big bucks to keep serious diseases from being listed as qualifying ailments under the state's medical-marijuana program.
In its latest effort, the department has spent tens, if not hundreds of thousands of dollars — which comes from medical-marijuana patients — trying to keep Parkinson's and Huntington's diseases from getting listed.
Records show the department paid $650,000 to Sherman & Howard, LLC, last year and at least $94,000 this year for legal services related to medical marijuana.
While the department declined to categorize the exact services on which that money was spent, citing attorney-client privilege, since last year the firm has helped the DHS oppose the addition of Parkinson's and Huntington's diseases as qualifying ailments — and even to help oppose any public hearing from being held on the issue.
Last year, the Arizona Cannabis Nurses Association submitted petitions for eight new qualifying ailments, also requesting the addition of diabetes, arthritis, traumatic brain injury, and others. The DHS rejected all of them, but the activist nurses are appealing the decision on Parkinson's and Huntington's.
In a court brief filed in February, lawyer Gregory Falls of Sherman & Howard argued that the DHS was correct to cut short the consideration of Parkinson's for the program without a public hearing because the nurses group didn't submit "sufficient evidence of acceptable scientific quality" that cannabis could help with Parkinson's.
An appeal hearing is scheduled May 3 and 4 concerning the department's decision on Parkinson's, and on May 9 and 10 for the no-go decision on Huntington's. The appeal hearings are open to the public, but the issue of whether the diseases could be treated effectively with cannabis won't be discussed: Instead, the hearings are to be held only to determine if the DHS erred in rejecting the petitions and stopping public hearings from taking place.
The nurses group is fighting the department's decision, with lawyer Ken Sobel working pro bono on the case for hundreds of hours. On other side are the highly paid, private attorneys who are funded with money collected from dispensaries and the fees that patients pay to renew their cards each year.
"It's evil and it's wasting time," says Sobel. He continues that he thinks the Cannabis Nurses ultimately will win the cases for Parkinson's and Huntington's diseases, just like they won — mostly — in the 2014 fight to get the DHS to add post-traumatic stress disorder as a qualifying ailment.
Sherman & Howard handled that 2014 case, too. In mid-2014, former DHS Director Will Humble agreed to add PTSD, but required patients to prove that a conventional therapy had first been tried, which was a higher standard than for the other qualifying ailments under the 2010 law.
Voters approved the original ailments that can qualify an Arizona resident to legally use marijuana: chronic pain, cancer, HIV/AIDS, Hepatitis C, Crohn's disease, glaucoma, ALS, and agitation from Alzheimer's disease.
These days, the DHS seems to be raising the bar. In an October 2015 letter to the nurses association, DHS assistant director Colby Bower writes, "If one of the stated goals of AMMA is to facilitate the medical use of marijuana, then the well-established and accepted standards used in approving all other medications in the United States should be followed."
Yet voters didn't require cannabis to meet the same standards or approval process as "all other medications" in the United States for treatment of the law's original ailments. If a rigid, federal approval process wasn't conducted previously to prove that marijuana should be used as medicine to treat the law's listed ailments, but voters approved them anyway, should DHS have a problem approving marijuana to treat Parkinson's or Huntington's disease?
"The irony is that we're talking about seriously ill people who suffer from a degenerative disease," Sobel says.
These sick patients probably will die prematurely and have typically tried pharmaceuticals with no result, or bad side effects. Some would like to have marijuana as an option, Sobel says, but "the nanny state would like to intervene and prevent them from making that choice."
The DHS typically has a three-step process for approving a new qualifying ailment. The first step is to acknowledge the receipt of a petition. The second is to review the petition to determine if it provides evidence that marijuana provides a "therapeutic or palliative benefit" for the condition. The third involves a thorough review of the petition and a public hearing on its merits.
For Parkinson's and Huntington's petitions, the DHS decided that there wasn't enough evidence to warrant moving to the third stage. Fall's 22-page court brief from February states that the type of evidence for proposed qualifying ailments should include "at least two high-quality studies conducted with real marijuana on actual humans that have been reported in peer-reviewed scientific or medical literature."
Fall wrote that it was "absurd" to think that as long as a study was published, even if "low-quality," it's sufficient to count as quality evidence for the DHS' review.
The department acknowledged that Sobel and the nurses group had submitted two articles published in peer-reviewed journals. One of the studies had a small sample size and found that less than 50 percent of the respondents reported mild or substantial alleviation of Parkinson's symptoms, the DHS says. The other study of 28 patients had dismissed six before the study began because of adverse reactions to marijuana, the DHS notes. Of the remaining 22, marijuana improved motor skills for many, and improved sleep for most. The authors of the latter study called the results "promising" but said more studies were needed.
If you think these studies sound like they actually did provide evidence that marijuana might help Parkinson's, Sobel and Heather Manus, founder of the cannabis nurses group, agree. They claim the evidence needed to clear the DHS' second stage and go to a full review has been met.
Sobel notes in court documents that after an administrative law judge reversed the DHS' denial of PTSD as a qualifying ailment, former director Humble "agreed that one single observational study" of 80 patients was sufficient to prove that PTSD should be added.
"It was clearly the goal of Arizona voters in approving AMMA to facilitate the medical use of marijuana, not to have DHS interpose specious objections based on standards not articulated in the statute or rule itself," Sobel wrote in a court briefing last month. "Indeed, there is as much evidence for the use of cannabis for Parkinson's Disease for many of the conditions listed in Prop 203 itself."
Similar arguments for and against the inclusion of Huntington's disease were made by Sobel and the DHS' lawyers at Sherman and Howard. The two upcoming appeal hearings could have been joined into one, but Sobel admits he didn't make a timely request to join them.
One question that naturally arises is why sufferers of Parkinson's or Huntington's, or their caregivers, don't simply obtain a medical-marijuana card under some other qualifying ailment, such as chronic pain.
As many as 70 percent of about 90,000 registered medical-marijuana patients list chronic pain as their sole ailment, leading many to conclude — no doubt rightly — that many recreational users are patients. It's a snap to get a card from one of the many "marijuana doctors" that advertise around town, and patients with serious ailments should be shoo-ins.
Sobel and Manus say there are several reasons why they don't advocate for going that route — the first of which is that they believe, simply, that patients who could be helped by medical marijuana should have easy access to a legal supply of it. They say it would be wrong and possibly damaging to the entire program to have people with Parkinson's and other maladies getting cards for chronic pain, because if there are more chronic-pain patients and fewer patients with serious ailments, critics will use the statistics to allege that it's not really a medical program. In 2013, they note, the DHS complained that too many fakers were claiming chronic pain to get a card.
Manus also says that the nurses association strives to educate people about medical marijuana and its benefits.
"Part of putting [conditions'] names on the list is so that a Parkinson's patient who doesn't know about cannabis may think 'I might want to try that,'" Manus says. "Without the diseases on the list, our goal on educating the public can't be met."
Sobel estimates that in the last three years, in trying to get new qualifying conditions for Arizona, he's racked up the equivalent of $175,000 in legal fees and $25,000 in costs, based on his "reduced hourly rate" of $375 an hour for an "AV-rated lawyer with 36 years experience."
He's keeping track of his time in case he can get a court to award him all or a portion of those fees someday, he says.
So far, only one Arizona dispensary owner has helped with the battle over qualifying conditions, Sobel says. All other dispensary operators ignored the group's calls for donations, he says, because they want to focus their excess funds on getting the Marijuana Policy Project's proposed initiative passed into law in November so they can "get even richer."
While both Manus and Sobel have Arizona connections, Manus lives in New Mexico and Sobel in San Diego. They'll both be in town for the upcoming hearings, and they hope to see many members of the public there even though the appeal hearings aren't intended to discuss the evidence, or lack of it, for marijuana's ability to treat Parkinson's or Huntington's diseases.
If any Parkinson's or Huntington's patients, or their caregivers, are interested in the possible benefits of marijuana, "we'd love to hear from them," Manus says.
The hearings are scheduled at the Phoenix state Office of Administrative Hearings at 1400 West Washington Street, Suite 101. Each is scheduled to begin at 8:30 a.m. on May 3, 4, 9 and 10.
See below for some of the relevant documents associated with the case: