Government Obstruction Hampers Safe Access to Medical Cannabis

Hawaii’s Narcotics Enforcement Division (NED), the branch of the Department of Public Safety that oversees the state’s medical marijuana program, promised to change a host of unlawful practices in response to a threatened lawsuit by the ACLU of Hawaii in May, 2011.  Last week, again in response to ACLU pressure, NED has promised to reform a number of other unlawful practices. 

In May 2011, NED agreed to:

  • Cease its practice of prohibiting physicians from performing house calls; and
  • Cease its practice of requiring physicians of to register every address at which medical marijuana is discussed with patients – a burdensome (and unlawful) paperwork requirement that NED imposed on physicians who prescribed medical marijuana (but no other controlled substance) without any legal authority. 

Last week, NED agreed to:

  • Stop overcharging patients for medical marijuana licenses;*
  • Accept personal checks as payment for annual registration fees, as required by state law;
  • Continue accepting applications submitted using the pre-October 2011 version of the NED application form, as physicians transition to using the new application form);** and
  • Stop requiring patients to obtain original physician signatures on change-of-address forms.***

More troubling, however, is NED’s continuing violation of its own administrative rules, which require that NED issue a temporary certificate to a patient upon receipt of the patient’s application.  The temporary certificate is necessary to ensure that patients receive the legal protection of state law right away – particularly given that patients routinely wait up to five months to receive their certificates from NED.  NED claims that it simply does not have the resources to comply with state law.  If NED’s failure to follow state law in issuing a temporary certificate is affecting you, please contact us.

ACLU and safe access advocates are concerned as patients and doctors report that they continue to confront conflicting information, unreasonable deadlines and newly invented, unnecessary requirements.  If you encounter problems with NED, please contact us.

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*Since the program’s inception, patients have been required to pay $25 annually for their medical marijuana certificates.  This past legislative session, however, the Legislature passed a measure that allowed the NED to set a “reasonable fee” up to $35 for each patient, and NED immediately began to collect higher fees from patients.  The collection of these increased fees was not authorized prior to a change in the administrative rules.  While NED will seek to amend those rules to allow the higher fee, at this time NED has reverted to charging only $25 per patient.  Patients who paid $35 will have the extra funds credited towards future applications; alternatively, patients can request a refund from NED.

**In response to pressure from the ACLU, NED revised its application forms.  Unfortunately, NED did not give physicians or patients any notice of this change and immediately began rejecting applications submitted using the old forms (resulting in lengthy delays for patients and large expenses for physicians who scrambled to complete new forms on behalf of their patients).  For the time being, NED has agreed to accept applications submitted on the old forms as physicians and patients transition to the new forms.

**Patients are required to notify NED of a change of address within five days.  NED instituted a new rule saying that patients needed to get an original signature from a physician – and return the form to Honolulu – within five days or risk losing their licenses.  This, of course, can be impossible if a physician is traveling.  In response to the ACLU’s inquiry, NED will no longer require a physician’s original signature on change of address forms.

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