Pennsylvania Department of Health Sues to Conceal Medical Marijuana Programme Information!

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The Pennsylvania Department of Health has once again filed suit against Spotlight PA in an effort to conceal the process by which individuals get a medical marijuana card.

This time around, the health administration is reluctant to disclose information that could reveal which doctors are more likely than others to grant patients access to the medical programme.

Under Pennsylvania’s open records law, Spotlight PA requested such data, making clear that it was interested only in medical staff records and not individual patient identities.

With the recent Commonwealth Court judgement, in which judges rejected the health department’s expansive interpretation of the medical marijuana law’s confidentiality rules, an independent state agency decided in January that records should be made public to the extent that they exist.

The Health Department in the state was given 30 days to provide the requested documents by the Office of Open Records. This month, however, the health department appealed the order in Commonwealth Court, a move that will certainly extend the time it takes to gain access to the documents by months, if not years.

Spotlight PA is a member of the Pennsylvania NewsMedia Association, and the association’s media law counsel, Melissa Melewsky, has warned that keeping such details secret makes it more difficult to comprehend how the medical marijuana law is being implemented.

Melewsky told Spotlight PA that “data may indicate to accomplishments and it can also point to failures,” both of which must be addressed through legislation. And if we can’t review the law’s data to see how it’s functioning, it’s very difficult to push for change where it’s needed.

The state’s multibillion-dollar medicinal cannabis market revolves around the state’s medical community of doctors. There are hundreds of thousands of people every year who need a doctor’s recommendation to get a medical marijuana card and purchase it at dispensaries.

In November, the agency recorded more than 1,800 participating doctors. The initial certification of a patient usually ranges in price from $125 to $225, and certificates must be renewed at least once a year.

Some members of the state’s Medical Marijuana Advisory Board echoed the findings of a Spotlight PA investigation when they raised concerns in November about the level of scrutiny some doctors use when approving patients for certifications.

The lawsuit filed by the department against Spotlight PA is the latest instance of the agency trying to prevent the release of documents, first during the Wolf administration and now under Gov. Josh Shapiro, a Democrat who took office in Pennsylvania last month.

In September 2021, the state Office of Open Records demanded that the department reveal data showing the criteria under which patients qualify for the state’s medicinal marijuana programme, and the Wolf administration took Spotlight PA to court to fight the ruling.

The Commonwealth Court, however, disagreed with the department on several points and declared in its ruling that patient privacy was protected only at the individual level under the medical marijuana law and not at the aggregate level.

Over a million certifications for the use of medical marijuana were created between November 2017 and August 2022, and the government eventually produced documents covering that time period. Data analysis and subsequent examination by Spotlight PA showed that anxiety issues were the leading cause of patients qualifying for the programme, despite scant and inconsistent evidence that cannabis helped alleviate anxiety.

 

The health agency said in the doctor data case that the information “falls clearly within the definition of confidential information” because it is not a public record under the medical marijuana law. The Open Records Act Office had a different opinion.

Reporters Committee for Freedom of the Press attorney Paula Knudsen Burke argued that the precedent set by the Commonwealth Court judgement regarding qualifying circumstances last year should apply to the release of aggregate data for physicians.

Burke, who represented Spotlight PA pro bono in a Commonwealth Court case last year, remarked, “We have seen how public access to data regarding the state’s medical marijuana programme has helped Pennsylvanians and legislators better understand how this relatively new programme is running.”

According to Melewsky of the Pennsylvania NewsMedia Association, the Commonwealth Court precedent should be followed when it comes to doctor data.

Melewsky speculated that the health department will “trot out all of the arguments that the Commonwealth Court has already struck down” in response to the new evidence.

In 2021, the health department filed a lawsuit in Commonwealth Court against a reporter who had requested data on the number of medical marijuana recommendations made by doctors. Before the verdict in the qualifying condition case in August 2022, the case was sent to Commonwealth Court, where it remains ongoing.

After being ordered by the state’s Office of Open Information to disclose records detailing the number of certificates awarded by a specific practitioner who had faced discipline from the department, the department also sued Spotlight PA earlier this month. That legal matter is also still in the works.

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