Patients Needing Cannabis Certification Left in Limbo by Executive Order

Wiki commons photo.

Hundreds of potential patients across Hawai‘i are asking how they can become certified to purchase medicinal marijuana while the state rests under the cloud of the coronavirus pandemic. The answer is — they can’t.

On March 23, 2020, Hawai‘i Gov. David Ige issued Executive Order 20-01, which suspended part of the state’s controlled substance law so doctors could issue prescriptions efficiently and without violating the mandatory, statewide stay-at-home order in effect until April 30. Violation of that order is punishable by a $5,000 fine and up to a year in jail.

As a result of the proclamation, doctors in Hawai‘i are presently allowed to prescribe narcotics — classified as Schedule-2, Schedule-3, Schedule-4 and Schedule-5 — by way of a telemedicine appointment, even if the physicians have never met or examined the patient in person.

Due to the COVID-19 pandemic, the US Drug Enforcement Agency also mandated allowing licensed physicians to prescribe controlled substances for new patients by way of teleconferencing.

Drugs that meet the criteria for telehealth prescription include substances like oxycontin and valium. But medicinal cannabis — still considered by the federal government and the state of Hawai‘i as a Schedule-1 narcotic, alongside substances like heroin and LSD — isn’t part of the exemption.

“You can sense the urgency for some people,” said Dr. Jim Berg, who hasn’t certified a new patient for medicinal cannabis consumption since early March. “When it’s your pain, it always hurts a lot more. Imagine getting migraines or having chronic injuries or arthritis. All you want to do is access (your medicine) legally and get on with your life.”

But, as of Monday, new patients can’t. When they’ll be able allowed to pursue all legal remedies for their ailments, including medicinal cannabis, remains an open question. That time won’t arrive before April 30 and with every passing day, the number of people impacted by the cannabis exclusion in the governor’s Executive Order grows.

Berg said Sunday he has 77 new patients waiting to be scheduled for a medical cannabis card. He’s one of several doctors who certifies on the Big Island and said the figure representing his new patients alone will top 100 in the coming weeks.

The Hawai‘i Department of Health (DOH) has done a “great job,” administering the program to this point up to this point, always conducting business with “kindness and respect,” Berg said. But he believes the exclusion Ige made March 23 will prove to be a mistake.

“(The medicinal use of cannabis) is legal in the state and the governor is responsible for allowing patients access to the medicine — to gain access without prejudice,” Berg said. “That’s the point of the law.”

Yet, it appears DOH won’t budge on the issue. Berg said he’s appealed to the department on two separate occasions to review the policy.

“DOH officially said they’re not going to allow it,” Berg continued.

He added that he sent emails directly to Gov. Ige and Lieutenant Gov. Josh Green on Thursday, April 2, imploring them to reexamine the issue but had not heard back from either man as of Sunday.

DOH and the Office of the Governor had not responded to email inquiries from Big Island Now about the issue, also as of Sunday afternoon.

Ige vaguely addressed at a press conference Friday a question about why medicinal marijuana wasn’t included in the prescription telehealth exemptions, which were part of his Executive Order that suspended portions of state narcotics law.

“We will look at all the impacts of the actions taken and make adjustments to emerging proclamations as necessary,” the governor said. “Our focus was ensuring we have the healthcare professionals here to provide service. We believe telehealth is an important asset … to extend (medical) reach into rural communities.”

Under the Obama Administration in 2013, the United States enacted the Cole Memorandum, which developed guidelines for how the federal government should interact with states on the issues of medicinal cannabis, as some states had legalized the plant for that use while it remained illegal at the federal level.

More or less, the Cole Memo “allows states to do what they needed to do with medicinal and recreational cannabis laws without fear of the federal government,” Berg said.

He added that the federal memo should apply to states extending telehealth certification options to patients dealing with chronic pain, chemotherapy-induced nausea and epilepsy, along with 12 other specific conditions approved for medicinal marijuana certification in Hawai‘i.

To qualify, conditions must be chronic, impact normal functional abilities of everyday life and cause some level of despair over time if not addressed. Severe pain would be Hawai‘i‘s most common condition, said Berg, adding that his average patient was in the neighborhood of 60-years-old the last time he surveyed them.

“If you’re 60 with a debilitating condition, that means you shouldn’t go into a doctor’s office at all because you’re high risk for COVID-19,” Berg said.

Patients, in this situation, could switch to aspirin, but it may not be enough to calm their pain and side effects like bleeding ulcers affect thousands annually due to aspirin use. Other drugs, like opioids, could be prescribed via telehealth, but many patients don’t easily tolerate chemical agents in those drugs, which have also proven to be highly addictive.

“I just hope (Gov. Ige) can be compassionate,” Berg said.