New HIPAA Guidance on Patients’ Right to Records and Appropriate Fees for Copies

OCR issued new HIPAA guidance yesterday that reiterates patients’ right to access health information and clarifies appropriate fees providers can charge for copies.

In its clarification, OCR emphasized its view that the right of access is necessary to put the individual “in the driver’s seat” when it comes to their care, which OCR views as a key component of both health care reform and the movement toward a patient-centered health care system.

The HIPAA Privacy Rule has always provided individuals with the right to access and receive a copy of their health information from their providers.  However, this right has not always been understood by providers and patients.

In January 2016, OCR took an significant step toward removing those obstacles by issuing a comprehensive fact sheet and the first in a series of topical frequently asked questions (FAQs) addressing patients’ right to access their medical records.  Those FAQs explained the requirements providers must follow in sharing medical records with patients, including that they must do so in a timely manner and in a format that works for the patient.

OCR is providing this second set of FAQs to address additional issues, including the fees individuals may be charged for copies of their health information and the right of individuals to have their health information sent directly to a third party if they so choose.  The new FAQs clarify that individuals can be charged a reasonable, cost-based fee for the labor and supplies associated with making the copy, whether on paper or in electronic form.

Furthermore, the right to access includes the right to have the information sent directly to a third party, whether another health care provider, a friend or family member, researchers, or even a personal health record.

Like the Access fact sheet and FAQs released in January, this second guidance is aimed to assist providers in complying with the HIPAA Privacy Rule.  The complete set of materials – the Fact Sheet and both the first and second set of FAQs — may be found on OCR’s website at: http://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html.

2016 Is Ramping Up For Telemedicine Developments

Two months in and this year has already seen significant movement in regulatory action across the country to expand the ability to provide telemedicine services. Below please find some of the more significant items that have already gone into effect in 2016 or are under consideration, including commercial payor and Medicaid reimbursement coverage for telemedicine services, reciprocal licenses for out-of-state providers and the ability to prescribe without an in-person evaluation.

Parity Laws in New York and Connecticut

Effective January 1, 2016, New York passed a Chapter Amendment clarifying last year’s telemedicine commercial coverage statute.  Under the 2016 Chapter Amendment, private insurers are required to cover services via telemedicine if provided by hospitals, home care and hospice agencies, licensed physicians, physician assistants, dentists, nurses, midwives, podiatrists, optometrists, ophthalmic dispensers, psychologists, social workers, speech language pathologists and audiologists.  The parity law prohibits an insurer from excluding from coverage a service provided via telehealth if that service is otherwise covered in-person.

The law also provides for Medicaid reimbursement to providers for telehealth services, which is defined broadly to include real-time two-way electronic audio visual communications, asynchronous store and forward technology and remote patient monitoring. However, with the exception of remote patient monitoring, telehealth will not be reimbursed by Medicaid when the patient is located in their home.  The New York Department of Health is expected to release telemedicine regulations later this year.

Similarly, Connecticut also recently passed a new telemedicine parity law that went into effect January 1, 2016. Under Connecticut’s parity law, commercial insurers must provide coverage for services rendered via telemedicine under the same terms and conditions as would apply if that service was provided in-person.  Connecticut broadly defines telehealth to include services performed by a telehealth provider at a distant site as well as synchronous interactions, asynchronous store and forward transfers and remote patient monitoring.

Notably, Connecticut went even farther than New York in its telehealth parity law by expressly preventing a health plan from excluding a service from coverage solely because the service is provided through telehealth and not in-person. In this way, a health plan cannot exclude a telehealth service, such as remote patient monitoring, simply because it does not lend itself to an in-person professional service.

Florida’s Controlled Substance Teleprescription Law

Florida recently implemented a new rule to permit physicians to prescribe controlled substances via telemedicine exclusively for the treatment of psychiatric disorders, effective March 4, 2016. Specifically, the amended regulation provides that controlled substances may not be prescribed through the use of telemedicine, “except for the treatment of psychiatric disorders.”

However, after passing this new rule, the Florida Board of Medicine recognized that it is still restricted by the Federal Ryan Haight Online Pharmacy Consumer Protection Act of 2008.  The Ryan Haight Act narrowly permits the remote prescription of controlled substances for patients without an in-person evaluation so long as the patient is: (1) physically located in a hospital or clinic with a valid DEA registration; and (2) treated by a DEA registered practitioner in the usual course of professional practice and in accordance with state law.  Accordingly, while Florida is expanding its telemedicine laws, the prescription of controlled substances via telemedicine will only be broadly permissible if the American Telemedicine Association, or other organizations, are successful in amending the Ryan Haight Act.

Newly Introduced Telemedicine Bills in New Jersey and Ohio

Various other states are also in the process of trying to pass telemedicine bills. For example, New Jersey recently introduced a bill on February 8, 2016, that would require private payors to provide coverage for telemedicine to the same extent that the services would be covered if they were provided through an in-person consultation.

Additionally, another NJ telemedicine bill was introduced on January 12, 2016, which would provide a mechanism for physicians and other health care providers to obtain reciprocal licenses to practice in New Jersey if the providers are licensed by another state in their particular specialty.  The bill would also provide a parity law for telemedicine services to be reimbursed under NJ Medicaid.  As a similar bill was proposed in 2015 and has now carried over into the 2016 session, the likelihood of its passing is even greater.

An Ohio legislative bill is also headed to the Senate that would allow patients to obtain prescriptions (for non-controlled substances) without an in-person exam or visit from a health care provider.

For more information on telehealth and telemedicine legal and regulatory considerations, continued legislative developments or related issues, please feel free to contact Daniel Meier or any member of our health care practice group for a further discussion.

The Proponent Testimony Goes Unrefuted As Renowned Physician Dr. Sue Sisley Highlights The Testimony Of Ten Witnesses Before The Medical Marijuana Task Force

By Ted Bibart, Legislative Analyst[1]

Thursday, February 17, 2016, was the first evening session of the Ohio House of Representatives’ Medical Marijuana Task Force (“Task Force”), which heard a full complement of testimony, all in support of legalizing medical cannabis. The Task Force, chaired by State Representative, and physician, Dr. Steve Huffman (R-Tipp City) in the absence of Rep. Kirk Schuring (R-Canton), announced it was by mere coincidence that all ten witnesses would offer proponent testimony and that no witnesses had scheduled to come forward against medical cannabis.  With three Task Force meetings in the books, it is safe to say that while the lack of opposition testimony is certainly not intentional on the part of the Task Force, it is certainly not a mere coincidence in the face of mounting evidence substantiating the medicinal value of cannabis and its beneficial uses to Ohio patients in need.  After carefully scrutinizing over 3.5 hours of testimony, as well as subsequent, individual discussions with Task Force members and witnesses alike, the following represents the most salient points and analysis from the medical testimony offered at the third Task Force meeting.

Two well-respected medical doctors came forward to offer their proponent testimony. Dr.  Matt Noyes, M.D., an orthopedic surgeon from northeast Ohio, testified in support of the many medical uses for cannabis in post-operative care.  Dr. Noyes attested to the many patients who do not want to take narcotics in recovery from the surgical procedures he regularly performs, as well as the corresponding benefits, and reduced morbidity, of cannabis treatments.  Support for this course of treatment comes both from cannabis’s medicinal value in reducing symptoms resulting from acute pain, as well as its anti-tumoral and anti-inflammatory properties.  Dr. Noyes called for a robust regulatory scheme beyond what was historically utilized in California, and stated that the major universities and medical institutions Ohio is renowned for should be allowed to excel in the medical research that would surely uncover additional medicinal benefits of herbal cannabis and its chemical compounds.  The regulatory questions continued to pile up from the Task Force members as Larry Moliterno (Ohio Alliance of Recovery Providers), Dr. Brian Santin, Jimmy Gould (Responsible Ohio), Matt Lutz (Muskingum County Sheriff), and  Lora Miller (Ohio Council of Retail Merchants) all asked Dr. Noyes specific policy questions that the doctor could not fully address.  While Dr. Noyes could fully opine on the medicinal value of cannabis, he readily admitted his lack of expertise as to the appropriate regulatory response.

Yet, Dr. Sue Sisley, M.D., an acclaimed Arizona physician practicing for 20 years in internal medicine and psychiatry, possessed the requisite firsthand experience to address the full range of medical and regulatory questions. Dr. Sisley’s comprehensive expert testimony was grounded in her experience as principal investigator for the only FDA-approved controlled trial studying whole-plant inhalation therapy for combat veterans with chronic, treatment resistant Post Traumatic Stress Disorder (“PTSD”).  Dr. Sisley is the foremost national expert in medical cannabis, having worked with legislatures in Nevada, Maryland, Arizona, Washington, Hawaii, Utah, Minnesota, New York, Vermont, and Washington D.C. in considering not only the medicinal benefits of cannabis, but the best regulatory solutions serving patients in need.

Dr. Sisley presented voluminous amounts of testimonial and documentary evidence submitted into the Task Force record.  Her overwhelming medical expertise in the area, and the persuasiveness of the scientific evidence she provided, allowed the Task Force members to fluidly move the conversation toward Dr. Sisley’s credentialed, personal experience with state regulatory responses to legalized medical cannabis.  Dr. Sisley answered one of the Task Force’s most burning questions, by pointing out that Arizona’s success since 2010 in regulating cannabis has limited its use to medicinal purposes and not allowed it to veer into recreational use.  Dr. Sisley also pointed out that Arizona’s law was passed by general election through a ballot initiative, which decreases the legislative ability to revise the law, and resulted in challenges such as a lack of laboratory testing requirements.  On the other hand, states like Maryland have passed, through their general assemblies, superior laws that have far more robust regulatory schemes including elements such as access to whole-plant materials, self-titration, lab testing, and packaging standards.

The regulatory questions soon dominated the conversation, as Rep. Huffman was particularly interested in how proactive legislation could positively impact further scientific studies. Rep. Huffman himself pointed out the successful trials in Europe and the fact that current research has moved beyond Phase I clinical trials focusing on safety, and into the more advanced Phase II trials focusing more on the range of beneficial uses. Dr. Sisley concurred and detailed how the current federal position is inhibiting the FDA-approved studies and it would be at least three more years before peer-reviewed studies would be published.

Former Ohio Attorney General Betty Montgomery inquired as to the best regulatory approach to cultivation, processing, and distribution, to which Dr. Sisley has intimate, practical knowledge based on the extensive reach of her practice in Arizona. She recommended the vertically integrated licensing system utilized in Arizona which effectively manages, through extensive regulation, over 60 grow-sites, 90 dispensaries, over 500 “caregivers” (who are designated by patients to help assist in the administration of the medical cannabis), and home growing for patients who qualify.

Mr. Gould inquired as to which states have the best and worst medical cannabis laws. Dr. Sisley is uniquely positioned to answer the question due to her involvement in the legislative process of the states in question, responding that Minnesota and Utah have particularly ineffective laws because the regulatory schemes inhibit patient access to cannabis treatment. Therefore, Minnesota only has approximately 1000 patients with access to the medicine, and the black market continues to thrive.  Furthermore, Utah patients have virtually no effective means of access and as a result simply cross the border to Colorado to obtain cannabis for medicinal use. What’s more, Utah’s ineffective legislative response continues to keep the state at or near the top of the highest rate of opiate overdoses in the nation.

One of the Task Force members then pressed Dr. Sisley on the large percentage of patients who use medical cannabis for chronic pain, asserting that those patients are abusing the system for recreational purposes. Dr. Sisley acknowledged that while that may be the case in isolated circumstances, just as it is in other treatment modalities, confirmed studies have shown that in the 23 states that allow medicinal cannabis, opiate overdose rates are down 25%.  Furthermore, there is not a single documented case of medical or recreational cannabis overdose.  As in every intersection between medical care and regulatory oversight, physician integrity must be relied upon as the first defense.  Furthermore, in the medical cannabis states which have robust regulatory schemes, there is no evidence that state medical boards and patient advocate groups are not effectively responding to the challenges presented.

Finally, Dr. Santin asked a particularly poignant question of Dr. Sisley (paraphrased here): removing the social stigma of cannabis and its propaganda reflected in the history over the last century, what is your medical opinion as to its proper schedule classification? Dr. Sisley, in step with every physician who has testified before the Task Force (as well as comments made by physician and Task Force member Rep. Huffman), opined that the current classification of cannabis as a Schedule I drug with no medicinal value is “absurd.”  Dr. Sisley pointed out that it is the Drug Enforcement Agency (“DEA”) and not doctors who decide that classification.  With the medical side-effects so benign, even with the inhalation of plant-based treatments as recognized by the FDA allowance of the current trials administered by Dr. Sisley, and addiction levels no higher than that of caffeine, the current federal schedule is neither supported by hard science nor sound policy.

The proponent medical testimony, yet to be refuted before the Task Force, has now framed the discourse not by how valuable medical cannabis is in treating a whole range of illnesses, but by how best to regulate its use. The perspectives on a robust regulatory scheme that are emerging paint an optimistic picture for those Ohio patients in need.  Similarly, the optimism for the emerging markets in support of the industry, and its regulatory framework, are just as well-founded.

[1] Ted Bibart, and the Benesch team, will continue to provide detailed analysis and comprehensive coverage of Task Force meetings and on-going developments surrounding the issue.

Local Government Officials And Patient Advocates Alike Line Up To Offer Proponent Testimony At The First Evening Session Of The Medical Marijuana Task Force

By Ted Bibart, Legislative Analyst[1]

The first evening session of the Ohio House of Representatives’ Medical Marijuana Task Force (“Task Force”) didn’t conclude until after 10.30 p.m., but the testimony was provocative and the questions illuminating. While our separate post focuses on the poignant medical testimony provided, and its intersection with regulatory solutions, this piece focuses on the most relevant anecdotal testimony provided by local government officials, as well as patient advocates whose personal insights provided a unique glimpse into the needs of Ohio citizens who could benefit from medical cannabis.

Blue Ash City Councilman Robert Ryan was the first of two local government officials to testify in favor of legalizing medical cannabis. As a retired aerospace systems engineer with a career in satellite and propulsion design, as well as a three-time cancer survivor and leader of the Ohio Patient Network (“OPN”), Ryan has extensive knowledge on both the medicinal value of cannabis and state regulatory solutions.  In fact, before returning to Ohio, Ryan was author of the Maryland Republican party’s medical cannabis resolutions that paved the way for an early medical marijuana bill signed by Maryland’s Governor.  After hearing his personal testimony regarding his use of medical cannabis to overcome his cancer symptoms, the Task Force was very interested in Ryan’s opinions as to the best legislative response to allowing Ohio in need access to cannabis.  Dr. Brian Santin in support of Ryan’s opinion as to the appropriateness of self-titration in dosing medical cannabis, drew a useful analogy to insulin self-management by diabetic patients.

Later, Franklin County Municipal Court Judge Ted Barrows testified in support of medical cannabis legalization. While Judge Barrows was more than willing to profess his belief that cannabis should be legalized beyond its medical uses, and managed, controlled, dispensed, and taxed similarly to alcohol, the Task Force limited his testimony to medicinal cannabis and Barrow’s professional opinion as to the immediate need for legislative action.  Judge Barrows captured clearly a theme often professed from Task Force members, and at the root of the committee’s purpose, which is to deeply contemplate legislative action before another ballot initiative goes before Ohio voters this November.  According to Judge Barrows, the main legal opposition to Issue 3, which failed to legalize both recreational and medicinal cannabis, was a constitutional amendment creating a state sanctioned oligopoly.  Therefore, legalizing medicinal cannabis through the state legislature would be the most appropriate and measured response to meeting the needs of Ohioans and crippling the black market.

Nicole Scholten with Ohio Families CANN (“OFC”) spoke on behalf of her own 12 year old daughter Lucy, and other Ohio families of children who could benefit from the verifiable, medicinal benefits of cannabis. Lucy suffers intractable epilepsy (meaning that it is drug resistant), enduring an average of 100 seizures a day.  According to Mrs. Scholten, no current treatment has eased the frequency or duration of her daughter’s seizure, an experience shared by roughly 1 million of the 3 million Americans with epilepsy.

As Scholten discussed the anecdotal evidence for Ohio families being forced to move to other states to seek medicinal cannabis therapy for their children, it was former Ohio Attorney General Betty Montgomery who first waded into the policy waters, away from the medical benefits of cannabis and into regulatory solutions allowing Ohio patients access to this much needed treatment. Montgomery was interested in Scholten’s opinion as to how to regulate medical cannabis to avoid its spread into recreational uses.  Dr. Santin then joined Montgomery’s regulatory inquiries by asking about OFC’s collective experiences in the realm of doctor-patient relationships and dispensary protocols.  Scholten provided her best anecdotal testimony from personal experience and that of other OFC families, but it is clear the ongoing regulatory questions of the Task Force will require comparative, statutory analysis from a policy perspective.

Patients, such as John Precup, and patient caregivers, such as Jean Taddie, testified as to the struggles of those in need of medical cannabis in the absence of responsible legislative action. Melissa Durkee provided heart wrenching testimony regarding her son Noah who is tortured by a treatment resistant form of Tourette’s Syndrome that has proven unresponsive to the 15 medications they have trialed to date. Mrs. Durkee testified that a dose of medical cannabis would reduce his tics and stabilize him enough to provide a vastly improved quality of life, as supported by the evidence of other patients in legal states using medical cannabis to treat this condition.

The testimony of all these witnesses, in conjunction with the scientific evidence presented by two respected medical doctors (including the foremost national expert on medical cannabis Dr. Sue Sisley, M.D. of Arizona), consistently advanced the discussion toward the regulatory framework necessary to support effective and controlled administration of medical cannabis to Ohioans in need. The questions of the Task Force clearly reflect a holistic approach to the policy implications at play with a focus on what is best for all of Ohio’s citizens.

[1] Ted Bibart, and the Benesch team, will continue to provide detailed analysis and comprehensive coverage of Task Force meetings and on-going developments surrounding the issue.

The Information Sharing Has Begun: First Testimony Offered Before The Medical Marijuana Task Force

By Ted Bibart, Legislative Analyst

The Ohio House of Representatives’ Medical Marijuana Task Force (“Task Force”) reconvened at the state capitol on Thursday, February 11, 2016, and once again members of Benesch were in attendance. The Task Force heard its first testimony regarding the medicinal value of cannabis, and the discussion was lively and well-informed.

The Task Force diligently quarantined the conversation to the medicinal virtues of cannabis, but regulatory considerations were ever-present in both the testimony and lines of inquiry from Task Force committee members. As the medical evidence in favor of the medicinal qualities of cannabis, and the corresponding benefits for Ohio patients in need, went uncontroverted, the Task Force often found itself willingly considering questions beyond the medical risks and rewards of cannabis-based treatments, and into perspectives related to a prospective regulatory scheme.

First, the National Multiple Sclerosis Society (“MS Society”) offered testimony, through its representative Holly Pendell, in hopes that the Task Force “will result in meaningful and responsible legislation allowing patients in need of cannabis, access in a safe and responsible manner.” The testimony came as part of the MS Society’s support of legalization of medicinal cannabis at both the state and federal level.  The MS Society has arrived at its position in support of legalized medical cannabis on the strength of numerous studies, “including one published in the American Academy of Neurology in March, 2014, ‘Summary of evidence: Complementary and alternative medicine in multiple sclerosis’” which showed medical cannabis “may lessen patient-reported MS symptoms.”  In fielding questions from the panel, Ms. Pendell made clear the synthetic forms of the chemical compounds in cannabis already approved by the Federal Drug Administration (“FDA”) were not sufficient, and the MS Society sought greater autonomy for patients and doctors in choosing medical cannabis treatment options.

Next, local business owner Andy Joseph of Apeks Supercritical, a manufacturer of botanical oil extraction equipment located in Johnstown, Ohio, presented a wide range of educated testimony on the subject.  With $12 million in revenues, 95% of which is generated by the legal cannabis industries across 20 states, Apeks was named by Columbus Business First magazine as #2 on its list of “Fast 50” companies in the state.  The Task Force allowed Mr. Joseph’s testimony to stray away from the virtues of medicinal cannabis and into the virtues of a robust regulatory scheme that promotes a healthy, stable medical cannabis industry in service of Ohio patients in need.  Topics such as testing, taxation, licensing, and product types were explored at length.  Here, State Representative Dan Ramos (D-Lorain) astutely inquired as to whether, and to what extent, the legislature should define and limit eligible conditions for treatment.  Mr. Joseph advocated for broad physician autonomy, as part of his over-all opinion as to what makes for an effective state regulatory scheme.

Next, Carlis McDerment testified on behalf of Law Enforcement Against Prohibition (“LEAP”), a national organization of “former and active police officers, prosecutors, judges and other law enforcement professionals.” Mr. McDerment was born and raised in Columbus, and is a former Fairfield County Deputy Sheriff with 11 years of law enforcement experience.  LEAP speaks out against the failed “war on drugs” in an effort to reduce the harms associated with the illegal market place.  The Task Force sharpened the focus of the discussion away from legalization of all drugs and to the value medical cannabis.  Here, McDerment spoke to his experience as a law enforcement officer and the benefits of “allowing patients to use medical marijuana in place of opiate painkillers,” also highlighting the toll prohibition of medical cannabis takes on the criminal justice system.

Next, Dr. David Ellison, owner and president of the Cincinnati Wellness Center, testified as to his extensive, and self-taught, knowledge of the medicinal qualities of cannabis and the industrial usefulness of hemp. Dr. Ellison lamented the current federal designation of cannabis as a Schedule 1 drug (above cocaine – a Schedule 2 drug), a perspective shared openly by Task Force member State Representative, and physician, Dr. Steve Huffman (R-Tipp City).  Dr. Ellison went on to describe how the “risk profile” of medical cannabis is actually lower than that of aspirin.  Rep. Huffman went on to have an extensive dialogue, and line of questioning, related to conceivable medical management practices of medicinal cannabis, similar to the standards of care already in place for prescription drugs such as Vicodin.  The Task Force was invigorated by Dr. Ellison’s testimony with additional questions coming from Dr. Brian Santin, Betty Montgomery, Jimmy Gould, and Linda Hondros.  Rep. Ramos asked a particularly elucidating question of Dr. Ellison to compare the addiction profiles of medical cannabis versus any prescription drug in the opiate classification.  Dr. Ellison resoundingly opined that medical cannabis has a far lower incidence or consequence of addiction than any opiate.

Finally, poignant testimony came from the last three witnesses scheduled to testify. First, attorney and former Air Force serviceman Michael Brice Keller testified to his personal experience using cannabis in treatment of his PTSD symptoms that resulted from his service in combat.  Lastly, Corrine Gasper and Nancy Vincent both spoke on behalf of their loved ones who were killed in traffic accidents by individuals allegedly under the influence of marijuana.  The Task Force was obviously moved by the personal stories of all three, and the fullness of its responsibilities in addressing this question on behalf of all citizens of Ohio.

Benesch will continue to have an extensive presence before the Task Force, with a keen eye toward the development of underlying policy initiatives and concerns. While the current focus of the Task Force seems to be in step with its stated goal of information gathering as to the medicinal virtues of cannabis, the statutory and regulatory considerations are always flowing below the surface and invariably percolate to the top of both the testimony and questions from the Task Force.  Benesch will be there to monitor these trends, with a forward-looking view to legislative solutions and emerging markets.

Ohio Senators Host Town Hall Meetings Regarding Medical Cannabis

Political discussions regarding the medical use of cannabis are ramping up in Ohio. On January 30, just two days after the first meeting of the Ohio House’s Medical Marijuana Task Force (the MMTF) in Columbus, Ohio, State Senators David Burke (R – Marysville) and Kenny Yuko (D – Richmond Heights) hosted the first of three “town hall”events to gather public opinion regarding the issue of medical cannabis.  The first town hall was held at Cleveland State University.

According to Senator Yuko, “this is our chance as legislators to listen to advocates and skeptics and come to an agreement that will benefit people living with difficult medical conditions. A Quinnipiac poll in October showed that 90% of Ohioans support medical marijuana. I am hopeful that these town hall meetings will give many faces to the support we have seen in the polls.”

The first town hall event lasted several hours, and included testimony from a variety of individuals, including a pharmacist, a physician, representatives of several agencies focused on addiction and drug treatment and members of the general public. Not surprisingly, the testimony varied greatly. Some argued passionately for access to cannabis as a medicine, while others decried any medicinal benefits.

Additional town hall events are scheduled to occur later this month in Toledo and Cincinnati, with dates and times to be determined. These town hall meetings are separate from the meetings being held by the MMTF in Columbus, as described here.

Benesch will continue to monitor developments regarding the legislative and cannabis-related ballot initiatives being considered by various groups in Ohio. We welcome the opportunity to discuss with interested parties the legal and business ramifications of these efforts.

Ohio Medical Marijuana Task Force Committee Holds First Meeting

By Ted Bibart,[1] Aaron Mendelsohn, Jeff McCourt, and Dan O’Brien

The Ohio House of Representatives’ Medical Marijuana Task Force (“Task Force”) convened its first meeting on Thursday, January 28, 2016 at the state capitol, and members of Benesch were in attendance.

The Task Force was formally announced by House Speaker Cliff Rosenberger (R-Clarksville) in early January 2016, with the stated purpose of creating a bipartisan task force “to vet all sides of the issue” of medical cannabis use. The Task Force is intended to work in partnership with various business groups, medical experts, issue advocates, state legislators and others in considering these matters.

The Task Force meetings will attempt to gather information and share policy perspectives from experts regarding a potential legislative and regulatory framework for the provision of medical cannabis to patients in Ohio. The Task Force is tasked with making a legislative proposal for consideration by the full House of Representatives by March 31, 2016.

The Task Force’s initial meeting was focused on procedural and organizational matters. No testimony was given by interested parties, but opening statements were provided from each of the Task Force members in attendance.[2]  State Representative Kirk Schuring (R-Canton) echoed prior statements by Speaker Rosenberger – that the Ohio legislature has heard from Ohioans all over the state who desire to have “a conversation” regarding the use of cannabis for medicinal purposes, and that the Task Force’s goal is to “bring to the forefront” opinions, information and knowledge on all sides of the issue.

Future meetings of the Task Force are anticipated to include more substantive engagement and testimony from experts on all sides of the topic. The Task Force will hold six more meetings prior to its March 31st reporting deadline, which can be expected to last approximately three hours each. Subsequent meetings will be held at the Ohio Statehouse on the following dates and times:

  • Thursday, February 11th at 3 p.m.
  • Thursday, February 18th at 7 p.m.
  • Thursday, February 25th at 7 p.m.
  • Thursday, March 10th at 7 p.m.
  • Thursday, March 17th at 3 p.m.
  • Thursday, March 31st at 3 p.m.

All of the Task Force members in attendance stressed an open mindedness with respect to any preconceived notions of cannabis. The fifteen-member Task Force is chaired by Rep. Schuring and includes the following additional legislators and other interested parties chosen by Speaker Rosenberger and Rep. Schuring:

  1. State Representative, and physician, Dr. Steve Huffman (R-Tipp City)
  2. State Representative Dan Ramos (D-Lorain)
  3.  Dr. Brian Santin, of the Ohio State Medical Association
  4. Nick Lashutka, president of the Ohio Children’s Hospital Association
  5. Betty Montgomery, former Ohio Attorney General
  6. Chris Stock, issue advocate and primary author of Issue 3
  7. Jimmy Gould, co-founder of ResponsibleOhio / Issue 3
  8. Bill Sopko, chair of the Ohio Manufacturers’ Association
  9. Lora Miller, Ohio Council of Retail Merchants
  10. Linda Hondros, Ohio Chamber of Commerce
  11. Matt Szollosi, Affiliated Construction Trades (ACT OHIO)
  12. Larry Moliterno, Ohio Alliance of Recovery Providers
  13. Gary Wolske, Fraternal Order of Police of Ohio (FOP)
  14. Matt Lutz, Muskingum County Sheriff and third vice president of the Buckeye State Sheriffs’ Association

The Ohio legislature’s actions in creating the Task Force (along with a parallel “town hall” style information-gathering effort in the Ohio Senate) are largely in response to increased interest in the topic of medical cannabis from various interests across Ohio, including the controversial “Issue 3” ballot initiative backed by the group Responsible Ohio, which failed to legalize recreational and medical cannabis use last November. Such efforts are set against the backdrop of a rapidly changing national landscape on the regulatory treatment of medical, recreational and industrial uses for the cannabis plant.  Twenty-three states have already legalized some form of medical cannabis use (including several of Ohio’s neighbors, such as Michigan, New York, and Illinois) and four states and the nation’s capital, Washington, D.C., have also legalized recreational use of cannabis.

If medical cannabis use is legalized in some capacity in Ohio, whether by the legislature or through one of several ballot initiatives being contemplated by varying interest groups, it could have broad impacts on medical professionals, patients, businesses, employers and Ohio residents generally. By getting ahead of the issue on the legislative side, the Ohio legislature may be able to better control the resulting legal framework and market structure than it would if medical or recreational cannabis were approved by voters through a constitutional amendment adopted by ballot initiative.

Benesch will continue to follow developments in the Task Force, the parallel legislative initiative in the Ohio Senate, as well as the various cannabis-related ballot initiatives being considered by various groups in Ohio. We welcome the opportunity to discuss with interested parties the legal and business ramifications of these efforts. For further information, please contact Jeff McCourt, Aaron Mendelsohn, or Dan O’Brien.

[1] Ted Bibart is a law clerk at Benesch and is not admitted to practice law.

[2] Not present for the initial meeting of the Task Force were Betty Montgomery, former Ohio Attorney General, and Matt Szollosi, representative of Affiliated Construction Trades (ACT OHIO).