Medical Patients, Caregivers Look For Answers as Cannabis Control Board Prepares to Transition MMJ Program

MONTPELIER — As Vermont’s Cannabis Control Board (CCB) prepares to take the medical program over from the Department of Public Safety (DPS), the state’s medical patients, many of whom have long felt unhappy with the program, worry they’ll be lost in the shuffle.

During a meeting last Friday, the CCB began discussion around the monumental task of transitioning the state’s medical program into its care. Caregivers and patients that attended the meeting made a wide range of suggestions, from increased plant counts and caregiver-patient ratios to concerns around heavy-handed influences from existing dispensaries.

The medical program is currently under the umbrella of the Department of Public Safety. However, the CCB takes it over on January 1, 2022. Under Act 165, the current statues and regulations that control the program expire on March 1, 2022. The control board will need to recreate specific regulations that are not set in statute.

Overpriced products, limited options, quality and mold issues, poor oversight by DPS and other rampant complaints have come out of Vermont’s medical program over the years.

The medical program has been touched on in recent weeks and addressed in some CCB meetings, following a great deal of feedback in public comment meetings from medical patients and caregivers.

Overpriced products, limited options, quality and mold issues, poor oversight by DPS and other rampant complaints have come out of Vermont’s medical program over the years. The medical cannabis registry was even previously listed underneath the Sex Offender Registry on the DPS website, until advocates rallied to have it changed.

And more recently, both patients and Control Board members have expressed concerns that the CCB medical advisory subcommittee, which includes dispensary representatives, does not have the best interests of patients in mind.

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Pepper: We’re at “The Starting Line”

Last week the CCB returned from a late November holiday and the pre-filing of Rules 1 and 2, beginning a period of public comment on those proposed rules.

In the board’s December 3 meeting, Commissioner James Pepper kicked off proceedings by reminding viewers that the CCB was just beginning their rulemaking process.

“The best thing the members of the public watching … can do for us is to help us spot places in these rules that might be overly burdensome, unnecessary,  impossible to achieve or just areas that we may have missed altogether.” — James Pepper, CCB

“I want to remind everyone listening that this is very much the starting line of the rule making process, not the finish line,” he said. “We’ll continue to discuss these rules at our board meetings. We’ll take comments on them, both from the administration, from the legislature and from the public and we have the ability to adjust them along the way.”

“We all know that every state that has gone before us has struggled with the unintended consequences of well-intentioned regulations. and we’ve tried our best to learn from these mistakes,” he said.

“The best thing the members of the public watching, people that are going to be impacted by these rules, can do for us is to help us spot places in these rules that might be overly burdensome, unnecessary,  impossible to achieve or just areas that we may have missed altogether.”

He noted that the board would also start meeting more frequently over the coming weeks.

Statutes and Rules: Important Distinctions

CCB Executive Director Brynn Hare presented distinctions between the medical program statutes (which can only be changed by legislative action) and rules that would need to be established by the board.

SET IN STATUTE

These items are “set by statute” and will take effect on March 1, 2022. The legislature would need to take action in order to change these statutes.

1. Existing qualifying conditions
2. Per patient cultivation limits (2 mature, 7 immature)
3. Patient possession Limits (2 ounces)
4. Caregiver criminal history record requirements (fingerprint supported criminal history record for VT, out of state and FBI records)
5. Patient to caregiver ratio (1:1)
6. Required Annual Renewal Fee for Caregivers and Patients

EXPIRING IN MARCH

Statutory provisions that exist now, but go away in March:

1. Patient designation of a single dispensary
2. Bona-fide healthcare professional-patient relationship (3-month requirement)
3. Dispensary limitation on selling 2oz per patient per month
4. Definition of registered caregiver
5. Limitation on 5 dispensaries statewide unless the patient registry goes above 7,000

RULES TO BE ESTABLISHED

TBD by CCB rule:

1. Out of state reciprocity
2. Limitation on the number of people a dispensary may serve at at time
3. Amount dispensary may dispense to a patient in a given time period (bound by 2oz patient possession limit in statute)
4. Standards for denial of caregiver card based on criminal history record

Medical Subcommittee Recommendations

As previously reported on November 3, the current medical advisory board was expected to submit its recommendations to the core Control Board members regarding the “ability of patients and registered caregivers in all areas of the State to obtain timely, affordable, and safe access to cannabis for symptom relief.”

The following list, shared on Friday, December 3, is a compilation of those recommendations.

The CCB Advisory Sub-Committee on Medicinal Cannabis is made up of the following three members: Meg D’Elia, representative from the Vermont Cannabis Trades Association, Jim Romanoff, Chair of the Marijuana for Symptom Oversight Committee and Matt Myers, Director of Prevention Services at Vermont Department of Health.

The Vermont Cannabis Trades Association (VCTA) represents most of the medical dispensaries in the state, except for Grassroots Vermont in Brandon.

Learn More: Who Makes Up the VCTA?

MEDICAL SUBCOMMITTEE RECOMMENDATIONS (Full PDF)

1.  Continued Access & Product AvailabilityThe Medical Subcommittee recommends that the CCB ensure that medical patients on the Registry have uninterrupted access to cannabis products as Vermont incorporates the adult-use marketplace. Ultimately, the Medical Subcommittee recommends that the CCB develop a baseline of products that the existing medical dispensaries must maintain and make available to medical patients. The VCTA has committed to ensuring medical patients’ access to cannabis products and will maintain a minimum 3-month supply of biomass for their patients based on the average of the previous 3 months of sales.The Medical Subcommittee recommends the CCB work with the VCTA to collect data on sales, inventory and demand in 2022 to develop and update the required reserves for biomass and, ultimately, the required reserves for baseline products for medical patients.
2. Remove the “bona fide health care professional-patient relationship” requirement (18 V.S.A. §4472(1)(A))
3. Remove the “patient designation of dispensary” requirement (18 V.S.A. §4472h(a))
   
4. Remove the caregiver fingerprinting requirement (7 V.S.A. §954(b)(2))
   
5. Public AwarenessPepper said that the medical oversight committee and health care professionals should be allowed to “talk more openly about the medical program. I think this kind of skirts the line between advertising and public awareness.”
6. Remove the 3 Person Requirement (rule that only three people can be in the dispensary at a time)
7. Expand the definition of “debilitating medical condition” (18 V.S.A. §4472(4))This is essentially expanding the qualifying conditions, specifically the medical subcommittee wanted to include anxiety, sleep disorders, and any condition that would prompt the prescription of an opioid or diagnosis of opioid use disorder.
8. Exempt certain conditions from annual renewal requirement (18 V.S.A. § 4474a)
9. Expand definition of “possession limit” and purchase caps (18 VSA §4472(14) and 18 V.S.A. § 4474e)
10. Reciprocity (meaning out-of-state patients can use their cards in Vermont)
11. Remove application fee for patients (18 V.S.A. § 4474a)
12. Re-define and expand “registered caregiver” (18 VSA §4472(16))

In its November 1 report, the Board recommended the creation of a Medical Cannabis advisory entity, composed of 12 members. This was briefly touched upon in the Medical Subcommittee’s report.

Those members would include six registered patients, three registered caregivers, two licensed health care professionals with knowledge of using cannabis for symptom relief, and one licensed cultivator with expertise in medical strains appointed by the CCB from a list provided by a Vermont cannabis cultivation advocacy organization.

Two Key Phases Outlined

The board moved into an open discussion around the future of the medical program, and what issues need to be tackled.

Pepper said, watching a meeting on the medical program from back in May, he was “reminded in watching … and hearing from the patients just how vital this program is, and yet at the same time how restrictive, inaccessible and unaffordable it is to a large segment of patients.”

“Of course, it’s our job to kind of start untangling that situation,” he said. He laid out two phases of the medical transition process, which board members Julie Hulburd and Kyle Harris agreed with.

Phase One concerns achieving immediate statutory duties, which are to redraft the rules with these two directives:  One is that no regulation they create can be more restrictive than the current regulations and two, to the extent that they can, they need to aim to align the regulations for the medical program with the adult use recreational program. This phase is time-sensitive and will move quickly.

Phase Two, which is a bit broader, aims to ensure that the current patients in the adult rec market are “held harmless” by the new profit motive moving into the state, through a “reimagining” or bigger-picture thinking about the program overall.

Pepper said examples of Phase Two recommendations, for example, could include “ensuring continuity of products,” reducing or waiving fees, reducing or waiving renewal requirements and patient-caregiver ratios.

“I think that’s really where we need to reimagine the system and really think about systemic ways that we can improve access, affordability and quality,” he said.

He also noted that patient caregiver co-ops will be discussed during the exploratory sub-committee meeting on Thursday, December 9.

An Open Discussion on Patient Accessibility

Harris brought up the issue of patient-caregiver ratios, as he has in previous public meetings, emphasized again that he thinks “the ratio needs to move off of a one-to-one ratio.” Previously a 5:1 patient-caregiver ratio has been suggested.

Pepper: “I mean the conversation that I heard was … if you allow this kind of expansive patient-to-caregiver ratio … none of the kind of product safety consumer safety issues are involved. They’re not paying a fee for this, they’re not paying taxes on it. They’re really just kind of an unregulated piece of our regulated market. That’s when it turns into a consumer safety issue. We have a responsibility as a board to take care of our most vulnerable.”

“I don’t have a problem with increasing the patient caregiver ratio,” Pepper said. “I do think that that will trigger us to create additional quality control regulations around what that looks like.”

Caregiver-Patient Ratios Discussed

In previous discussions, the Board had also discussed ‘bifurcating’ the definition of a caregiver, into a “cultivator” caregiver and a “provider” caregiver who doesn’t grow, but only obtains cannabis (ie, goes to a dispensary) for patients.

Medical cannabis advocate Amelia Machia, during the meeting’s comment period, disagreed with the idea of dividing caregiver definitions.  “After hearing all of this I still do not support bifurcating the definition of a caregiver. I don’t think that that is going to help patients [or] caregivers.”

She proposed a supplemental medical license type “that can be made available to somebody with a pre-existing license,” which would allow somebody who already has an adult use grow license to provide for up to five patients.

“I think that there is somewhere in the middle where we can meet, where we have these extremely talented craft cultivators. They want to help patients … if the infrastructure is there for them they’re going to take advantage of it.” — Amelia Machia

“We have so many adult use licenses, but we only have like two different medical licenses and that’s either you’re a caregiver who provides product for free to one patient or you’re an integrated dispensary license,” she said. “I think that there is somewhere in the middle where we can meet, where we have these extremely talented craft cultivators. They want to help patients, they’re willing to help patients and if the infrastructure is there for them they’re going to take advantage of it. We just have to give them some way to participate.”

“I don’t know that it needs to be five patients per caregiver but I think that one to three is fair and valid,” she said.

Pepper, during the open board discussion seemed to be on board with this sentiment. “If you go above anything beyond like one to one to two [ratio] that we should really think about having a cultivation tier that’s specific to medical, like a 25 or 50 plant, that is specific to medical and it’s subject to the regulations of the adult market,” he said.

He added, “Should we then also have a medical co-op where a lot of growers can centralize their product and have some shared resources and should that be subsidized by the cannabis fund? I mean these issues for me are all interrelated.”

Fran Janik, a longtime Vermont medical cannabis advocate, agreed with Machia, saying the state should go from three to give patients if at all possible. He also said that fees should be removed for medical patients.

Machia, who has multiple chronic illnesses, two of which are incurable, had also proposed the initial idea of eliminating the need to renew a medical card when providing earlier feedback.

Medical Subcommittee Concerns Raised

Harris said that the medical subcommittee’s composition, represented heavily by existing dispensaries, makes patient-focused changes more challenging: “You know, quite honestly the optics of the subcommittee don’t do it any favors. It’s understanding why they don’t want to move the cultivation side of caregiving off that ratio.”

Hulburd and multiple participants during the public comment period agreed with this sentiment.

“You know, quite honestly the optics of the [medical] subcommittee don’t do it any favors.”
— Kyle Harris, CCB

Tito Bern, founder of Bern Gallery, said that biased decision-making from the VCTA was “glaringly clear” at the sub-committee meeting that he attended.

Chiming in on the topic, Geoffrey Pizzutillo, executive director of the Vermont Growers Association (VGA), said, “A couple months ago when you guys were having a medical cannabis discussion before the board, there was talk about the future oversight committee. My organization [the VGA] was named and I think you guys raised an excellent point which was avoiding enumerating a specific organization, an entity, in rule and statute. I would ask that you apply that standard to the [VCTA].”

“We’ve been stuck with two plants since about 2009 so we are way past due.”
— Geoffrey Pizzutillo, VGA

Pizzutillo also raised concerns around plant count, suggesting 10 mature plants be allowed.

“I would urge you to include an increased plant count in that phase One. I think that is vitally important. We’ve been stuck with two plants since about 2009 so we are way past due,” he said. “It is a top priority for the medical cannabis community.”

Pizzutillo, lastly, noted that cannabis was still being criminalized in Vermont. “We currently have Vermonters in the state getting arrested still for cultivating more than two plants and some of them are registered patients and caregivers,” he said. “This is still currently going on –  albeit it’s no longer maybe a top priority across the state, but I want you to be aware of this.”

“Small caregivers who share legally have become the backbone of our cannabis therapy program serving far more patients than those who have cards.”
— Francis Janik

Janik, who advised some of the first dispensaries in Vermont and the early stages of the medical program, said he had also witnessed “extremely disturbing events” with documented instances of willful disregard for patient safety and violations of state and federal laws.

As previously reported by Heady Vermont, in 2019, the Vermont Agency of Agriculture investigated an anonymous tip that the company was growing more than 200 medical cannabis plants under the guise of a hemp farm at Pete’s Greens, but the investigation was passed on to the Department of Public Safety and quietly closed.

“Small caregivers who share legally have become the backbone of our cannabis therapy program serving far more patients than those who have cards,” Janik said. “Some registered patients have gone as far as Canada and Maine to acquire needed cannabis therapy. I testified before house committees on this matter. It is my hope that we recognize the important contributions that small caregivers have and continue to provide to Vermonters in need.”

Additional concerns raised: Bern brought up concerns around the state’s vape tax. Ben Mervis urged accessibility at adult use dispensaries as well as reciprocity for medical patients. And attorney Dave Silberman urged the board to use its 904a authority to grant waivers, exemptions and accommodations to small tier one growers.

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Full video from the Friday, December 3 meeting of the Vermont Cannabis Control Board: