In the wake of the Attorney General's findings that the Governor and Board of Health enacted unauthorized rules regarding the new medical marijuana law; SoonerPolitics gathered together a few citizen advocate groups.
We invited them to comb through the 87 pages of new agency rules and compare the Attorney General's stated proper role of an agency to limit their behavior to only that which the specific statute authorizes them to oversee.
In just the first 24 hours, our teams found 47 instances. Some of them were very broad and some of them very specific. Most of them were simply redundant of other applicable agency rules which have been in place for decades, and had no need to further clutter this set of emergency rules.
- Physicians are already subjected to massive volumes of rules regarding their healthcare practices. There were only a few unique rules needed in this area.
- Processing facilities already must comply with their county health department inspections & have food handlers licenses.
- Production facilities already must conform to zoning laws, & OSHA codes.
- Retailing laws already stipulate volumes of rules that Dispensaries must comply with.
But other enacted rules completely ignored the law. Of the 8 subchapters in the governor's enacted emergency rules, the last 4 chapters were largely supposed to be created by a different entity. A Marijuana Industry Board
The Oklahoma State Department of Health will be compelled to, within thirty (30) days of passage of this initiative, appoint a board of twelve (12) Oklahoma residents, who are marijuana industry experts, to create a list of food safety standards for processing and handling medical marijuana in Oklahoma. These standards will be adopted by the agency and the agency can enforce these standards for processors. The agency will develop a standards review procedure and these standards can be altered by calling another board of twelve (12) Oklahoma marijuana industry experts. A signed letter of twenty (20) operating processors would constitute a need for a new board and standard review.
"Resident" means a person who is an income tax payer in the State of Oklahoma and can provide proof of residency ...
This would exclude most minors, anyone who made modest income or less, most retirees, and anyone who moved into the state in the past year.
We called the authors of 788 and asked them a number of matters relating to intent and they concurred. Chip Paul, the chief author; and Frank Grove, the final draft editor; both agree that a 'red line' session is now appropriate and there is an effort to schedule a meeting with the people at the Health Department whom Paul says; "have generally done a good job of responding quickly & addressing the licensing process".
Grove and Paul are primarily concerned with getting the patients and growers taken care of now. They say that the focus should be on getting the seedlings in the hands of licensed patients and certified growers so that a first harvest can be ready in late fall. That will inform the state agency of the scope of need and then we can prepare Dispensaries to be available once the medical relief product is available.
The governor has demonstrated that rules can be tweaked on an as-needed basis. But more importantly, the legislature needs to have a real relationship with those in this new healthcare protocol who are daily providing care to suffering Oklahomans.
As doctors begin treating patients with this new class of treatment remedies, there will come a wealth of verifiable evidence for our legislators to respond to in an accountable way.
Study Groups are notating these suggested edits to the governor's enacted rules:
1-4 Dispensary Manager definition: remove pharmacist requirement
Physician definition: restore all other board certified physicians (Optometrist, dentist, Podiatrist, Chiropractor, & potentially a naturopath, if & when that certification comes to Oklahoma)
Resident: remove 'pays oklahoma income tax'
1-9a Board Certification: remove everything after 'board certified' (requirement to be a MD or DO)
1-9b2 & 2-1 c5Eii -Telemed exams: remove 'in-person(telemedicine is prohibited'
1-9b10 Cannabis Patient: remove prohibition of doctor being also a cannabis patient
2-1a4 Application: remove minimum requirement that patient have a phone & email
2-2a1 minor patient: remove additional mandate of identical diagnosed cause (only identical treatment concurrence is required)
2-2c restricted meds: remove prohibition of inhaled pediatric medicine
2-11c & 2-11d restricted meds: strike all of subsection 'c' which narrows 'medical marijuana beyond the statutory law
2-13b 2-13c outdoor grow restriction: remove outdoor regulations & processing regulations
3-2 Transportation: remove regulations on vehicle equipment and personnel (Brinks truck protocols)
4-2d3Bviii Biosketch of each research staffer: strike mandate
4-2b3C Letters of Support: remove mandate
4-2b3E IRB: remove mandated recommendation
4-2e Contracted outside authorities: remove ability of an outside corporation to have access to a competitor's research & intellectual property secrets.
4-2m Animal research: remove ban
5-3d7 Research Application(individual): remove phone & email mandate
5-3e2 Application: remove list of business or individual creditors
5-3e5 & 5-3e6 Zoning: remove setback, lease data, and owner statement
5-3e8 Surety Bond: remove requirement
5-6e3 & 5-6e4 & 5-6e5 Penalty: remove ban on employees 'under 21', mandate of surety bond, & limits on THC
5-12a Single serving: remove THC limited levels
5-14a1 Facility lock: remove mandate that only manager has key to retail facility
5-14b Pharmacy Dispensary: remove ban
5-14c Dispensary Training: remove mandated, yet unprovided continued education training
5-14d2 Dispensary Drug diversion prevention: remove mandated procedure
5-14d4 Annual Inventory: remove mandate
5-14d5 Physician recommendation file: remove record storage mandate (not allowed by dispensary to have physician data because physician handles those patient records and there are no limits on accumulated purchases
5-14e Work hours: remove 40 hour mandate
5-14f2 Employee Reports: strike requirement of notifying Department of all terminations and reasons and suspicions(defamation jeopardy)
5-14f6 Badges: remove mandate (no protocol for badges is authorized by this statute)
5-14g1 Patient's redundant ID requirement: only state-issued licence is required by statute
5-14g2 Education materials: remove mandate (not mandated by statute and does not exist)
5-14h OBN reporting: remove mandate. (does not apply to Cannabis medicine)
5-16 Hours of operation: strike all (statute does not authorize these agency restrictions)
5-17 Dispensary Entry Restrictions: strike this. ban is not authorized by statute
5-18(except g) Prohibited Retail acts: Statute does not authorize agency to create any of these prohibitions on common retailing practices & norms. (small signs, no promotional materials, repackaging, staffing rules, customer delivery services, co-locations, etc)
5-19 surety bond: strike all of it
6-2a Commercial facilities: strike building and property regulations
6-2b, 6-3, 6-4, 6-6, 6-7 Security: strike all (goes beyond health mandate rulemaking authority)
6-8a Proscessor Ongoing Education: statute does not authorize mandate
6-8b, 6-9, 6-10, 6-11 Operations: Health Dept. food handling inspections already apply and have jurisdiction to set rules for sanitation, accuracy, etc.
7-1b12, 7-1b13, 7-1cLi, 7-1cLii, 7-1cLiii, 7-1cLiv, 7-1d4Av Labeling: Statute does not mandate these speculative harm warnings
7-1d7B Packaging: remove vague prohibition about 'package being attractive to minors"
7-1d13 Packaging: Industrial bulk shipping packages do not need to be child resistant
8 Laboratory Testing: Entire subchapter should be created after consulting with an industry board, not just this Board of Health
This copy of the Governor's enacted emergency rules was marked up by our study group, using the notes in the left margin.