How PTSD was added to Hawaii’s Program

The story of how PTSD was added to Hawaii’s Medical Use of Cannabis Program begins on March 28, 2011, when a letter was sent to the late interim Director of the Department of Health (DOH), inquiring about how new debilitating conditions can be added to Hawaii’s program under HRS 329-121-3 and HAR 23-202-2-3.

After receiving no reply for thirty days, a second letter was sent on May 9, 2011, requesting that PTSD be added as a qualifying condition.

A reply from the Director dated April 28, 2011, was received after the May 9, 2011 letter had been sent. This reply stated that DOH does not have the authority to add new conditions and that adding a new condition would require a statutory amendment by the Legislature.

Because this response did not address the statutory provision that authorizes DOH to add new conditions, a formal petition to add PTSD was submitted on August 15, 2011, with the help of a local civil rights lawyer and a forensic psychiatrist.

On September 14, 2011, the Director responded to this petition, saying that DOH does indeed have the authority to add new conditions, and thereby invoked rulemaking authority and denied the petition based on insufficient evidence, without having administrative rules in place to evaluate requests to add new conditions.

On January 20, 2012, in an attempt to find a legislative solution to the blockade from DOH, SB2406 was introduced to the twenty-sixth Legislature, which would add PTSD to Hawaii’s list of debilitating conditions. Unfortunately, this bill was never granted a hearing by the Senate Health Committee (HLT).

On January 24, 2012, a written request for a copy of the department’s rules relating to Hawaii’s Medical Use of Cannabis Program was submitted to the Director. On February 21, 2012, the Director responded that DOH did not have any rules for adding new conditions to Hawaii’s program, and no apparent plans to do so.

Before waiting for a reply to the request for a copy of DOH’s administrative rules, a Freedom of Information Act (FOIA) request was submitted to the Director under Hawaii’s Uniform Information Practices Act (UIPA) on February 16, 2012, requesting materials related to the decision making process that DOH employed to deny the petition to add PTSD.

On June 27, 2012, the DOH Chief of CDD responded that no petition to add PTSD had ever been received by their department.

On July 9, 2012, a reply that outlined the past year’s efforts to add PTSD to Hawaii’s program was submitted to the CDD Chief, and the Chief was asked what steps will be taken to insure that they comply with the statutory requirement that DOH have an administrative process for evaluating a request to add new conditions. No response was received.

On October 12, 2012, a request for a copy of DOH’s written policy on Medical Cannabis and Hawaii’s Medical Use of Cannabis Program was submitted to the Director. On October 30, 2012, the Director responded that DOH’s policy is to follow the law.

On October 19, 2012, a petition was submitted to the Director requesting that administrative rules be adopted that would allow DOH to consider new conditions. No response was received.

On November 9, 2012, Senator Espero hosted a meeting to discuss the difficulties with adding new conditions to Hawaii’s program. This meeting included Senator Espero, Dr. Otto, Dr. Otto’s lawyer, and representatives from DOH and the Office of the Attorney General. During this meeting the DOH representatives were unable to verbally confirm that cannabis has legitimate medical use in Hawaii, and an action plan for addressing the need for administrative rules to consider requests for adding new conditions could not be generated.

A letter was also sent to the Governor on December 1, 2012, asking for assistance with resolving the stand-off with DOH over adding new conditions. No response was received.

On June 25, 2013, HB668 (Act 177) was signed into law by Governor Abercrombie, which set a deadline of January 1, 2015, for the transfer of the administration of Hawaii’s Medical Use of Cannabis program from the Department of Public Safety (PSD) to DOH.

The tragic plane crash that claimed the life of Director Fuddy (R.I.P.) occurred on December 1, 2013.

On Friday, May 1, 2015, HB321, the Hawaii Dispensary Bill, died in conference because the House Health Chair would not accept the Senate Health Chair’s requirement that dispensary licenses be granted on a first-come-first basis. After this conference was adjourned, the Senate Health Chair was ejected from the conference, and replaced by Senator Espero.

Then, over the weekend, the differences between the House and Senate versions of this bill were reconciled behind closed doors, and on Monday, May 4, 2015, conference was revived, and an amended version of HB321 that added PTSD (see page 59) as a qualifying condition was approved and transmitted to the Governor on May 7, 2015. HB321 was signed by Governor Ige on July 14, 2015, and codified as Act 241.

Following the removal of the Senate Health Chair from the Hawaii Dispensary Bill Conference, this Legislator was also removed as Chair of the Senate Health Committee. The Senate Commerce & Consumer Protection (CPN) and Health (HLT) committees were then combined into a single committee named CPH, which was given to the chair of CPN.

The combination of Commerce and Health into a single committee is a direct conflict of interests, and an excessive degree of power under a single chair. Commerce and Health need to be separated back into two different committees. But this is a story for another day.