How contemptible of a story. Lot of venal, patronizing, self-serving bureaucrats in OK need to GO. Like in 86 them, people.
Campaign to amend marijuana rules started weeks before public knew
Oklahoma City — On the day Oklahoma voters went to the polls to decide whether to legalize medical marijuana through State Question 788, a behind-the-scenes campaign to prohibit the sale of smokable products already was underway.
The public didn't learn that a ban on selling some forms of marijuana was even a possibility until a coalition of health professional groups and agencies held a news conference on July 9. The next day, the Board of Health voted to ban the sale of smokable forms of marijuana and to require dispensaries to hire pharmacists — also one of the health groups' priorities.
The seemingly sudden action touched off widespread public speculation about where the regulations had come from, and why they weren't part of a draft posted online ahead of the Board of Health meeting. It also led to two lawsuits by pro-marijuana groups, challenging the regulations themselves and alleging violations of the Oklahoma Open Meeting Act.
Dozens of emails obtained by The Oklahoman through an open records request show health groups had pushed for the two amendments for weeks, even before voters went to the polls.
The state question was light on details, and even supporters acknowledged that either the Oklahoma State Department of Health or the Legislature would have to fill in the blanks. When Gov. Mary Fallin declined to call a special legislative session, the Health Department became the primary entity in charge of shaping Oklahoma's medical marijuana framework.
The department had been working on draft regulations ahead of the June 26 vote, and had held meetings with representatives from eight state departments and boards. A few others, such as the Tax Commission, submitted comments on specific questions relating to their work.
A summary of the June 22 meeting, attached to one of the emails obtained by The Oklahoman, showed the mental health department and the Bureau of Narcotics both were calling for a ban on smokable forms of marijuana at least four days before voters approved medical marijuana.
At that point, the Board of Pharmacy already was arguing the Health Department should require dispensaries to employ pharmacists, and mental health representatives wanted to limit the number of dispensaries the state would license.
By June 26, the day Oklahomans voted, the Bureau of Narcotics also was on board with the pharmacist requirement, according to an email from bureau spokesman Mark Woodward to Health Department Interim Commissioner Tom Bates, then-general counsel Julie Ezell and others.
Woodward said the Bureau of Narcotics had done research on other states' medical marijuana frameworks and identified about 10 “smart approaches” it thought Oklahoma should adopt, including a ban on smokable forms and the pharmacist rule. Most didn't make it into the final rules.
The bureau's suggestions ended up going beyond its ultimate role of registering marijuana businesses and preventing diversion, but it wasn't clear at the time that other state agencies would take on most of the work of regulation, Woodward said.
“The rules weren't written yet,” he said. “We weren't sure what our role would be.”
Pushing for pharmacists
From the beginning, Ezell said the board didn't have the authority to require pharmacists, ban sales of smokable marijuana, or limit dispensaries.
But Chelsea Church, then executive director of the Board of Pharmacy, was persistent in trying to come up with a way to get pharmacists in. She later was fired after news reports of text messages where she appeared to offer Ezell a job in exchange for recommending the board vote for the pharmacist requirement.
Tracy Schumacher, a Norman attorney representing Church, said she contacted Ezell after the board took a vote instructing her to engage with the process.
(Story continued below...)
“She was told to do it as a function of her job,” she said.
On June 29, Church sent Ezell, Oklahoma Medical Marijuana Authority project manager Buffy Heater and Jessica Hawkins, senior director of prevention at the mental health department, a proposal to create a certification for pharmacists to work in dispensaries. Each dispensary would have to have its own “pharmacist-in-charge,” who would have to have completed 40 hours of special training.
Two days later, Church emailed Ezell again, suggesting the board could require a pharmacy consultant, who would have to visit dispensaries at least 52 times per year. Ezell responded she thought the board didn't have the authority to require a pharmacy consultant, either. One day later, Church came back with another proposal, to require dispensary technicians who worked under a pharmacist's supervision.
Ezell and Church continued to exchange emails over the weekend before the board voted, debating whether the Oklahoma Pharmacy Act would allow pharmacists to be involved in dispensing marijuana, which doesn't come with a conventional prescription.
Hospitals jump in
While Church was lobbying for pharmacists, the hospitals were just starting to get in the game. On July 3, two hospitals sent nearly identical letters outlining their support for the three proposed amendments, and calling for limits on edible marijuana products and on advertising that might appeal to children.
On July 9, the day before the board voted, the Oklahoma Hospital Association tried to assuage concerns about the amendments' legality. The hospital association emailed a letter it had obtained from a lawyer, arguing the state could ban smokable forms of marijuana, to mental health Commissioner Terri White, who then forwarded it to members of the Board of Health.
Patti Davis, the current hospital association president, said it's not unusual to seek an opinion on policy issues. Craig Jones, who recently retired, was the association's president at the time.
“We consider any policy issue that could significantly impact the health of Oklahomans to be worthy of our focus and attention,” Davis said.
In the letter, Mark Edwards at Phillips Murrah said agencies could adopt rules “not contrary to the plain language” of state law.
“For example, it would be under the authority of OSDH to define the legal consumption of medical marijuana to not include smoking,” the letter said. “This conclusion is supported by the fact that the law does not expressly authorize the smoking of medical marijuana, and so a ban would not necessarily be contrary to the statute.”
Ezell still wasn't convinced, as evidenced by an email she sent to several board members later that day.
“If I thought we could lawfully ban smokable marijuana I would be the first to do it,” she said. “I think most voters, when they voted on the question assumed it meant (especially since it used the generic term ‘marijuana') smokable marijuana. That is the most common association.”
A July 7 email from Ezell to Secretary of State Jim Williamson and Chris Benge, Fallin's chief of staff, shows the two also had gotten involved at some point. In the email exchange, Ezell thanks Williamson and Benge for unspecified contributions, and Benge clarifies how doctors would check the prescription monitoring database when recommending medical marijuana.
“I can't think (sic) both of you enough for your help and input on these,” Ezell wrote. “By collaborating and looking at these from multiple ways we were able to go much further in our rules then I initially anticipated.”
Benge and Williamson issued a joint statement about their participation on Wednesday. They said they discussed “generally possible rules” that would prioritize health and safety, and focused on making the medical marijuana system as much like traditional prescribing as possible.
"The state question placed an accelerated implementation period upon the Oklahoma State Department of Health. Because of this, the governor's office was interested in helping the department successfully adopt the rules as quickly as possible,” the statement said.
Vote spurs lawsuits
Board members saw the final language of the three amendments they would vote on at 5:29 p.m. the day before their meeting, when White emailed it to two members, who then forwarded it to others.
“Per your request please find possible motions to amend that could be made by a board member,” White wrote. “We didn't know if you wanted to have them each separately (3 separate motions) or if you would want to make just one motion with all 3 included in that single motion — so we have provided both options.”
The board voted July 10 on 75 pages of regulations, adding the amendments that banned sales of smokable marijuana and required dispensaries to hire pharmacists, over Ezell's objections. They decided not to pursue the amendment limiting the number of dispensaries. Gov. Mary Fallin signed the emergency rules one day later.
Fallout from the vote dominated the news for weeks. Lawmakers from both parties decried what they called overreach by the board. Two pro-marijuana groups sued, and the attorney general's office told the Health Department the board likely exceeded its authority, not only with the two amendments, but also with an array of other regulations.
Ezell, the Health Department's lawyer, resigned July 17 and faces charges related to threatening messages she allegedly sent to herself. Church was fired a week later, after text messages came to light that appeared to show she offered Ezell a job in exchange for recommending that the board require dispensaries to hire pharmacists.
Despite the chaos surrounding the rules, the Oklahoma Medical Marijuana Authority started accepting applications from patients and potential business owners on schedule in late August. As of Monday, the authority had received more than 7,000 applications and approved nearly 5,000.
Frank Grove, of the Oklahoma Cannabis League, said he isn't surprised that groups supporting stricter regulation of medical marijuana worked quietly on the issue for some time, and he expects some will try again when the Legislature returns in February. Extensive restrictions aren't likely to pass, he said, but he worries opponents may try to block more modest regulations that will make it clearer what marijuana businesses can and can't do.
“It's a lot easier to stop legislation than to pass anything,” he said.
