Originally Published: December 5, 2016 6 a.m.
PHOENIX — Claiming the state is hoarding funds, two medical marijuana users want a judge to reduce the annual charge for the legally required registration cards.
In legal papers filed here, the attorney for Yolanda Daniels and Lisa Becker points out the Department of Health Services collected $2.6 million more in fees last year from patients, caregivers and dispensaries than it actually took to run the program. And Sean Berberian noted the balance in the account as of the end of 2015 was nearly $11.5 million.
Yet the health department still charges patients $150 a year for identification cards they need to legally buy the drug and escape prosecution if they are found in possession. And caregivers who tend to patients must pay $200 a year.
Berberian contends that runs afoul of the 2010 voter-approved law which says that the fees shall only be “sufficient to implement and administer’’ the program.
“In a time when medication is more expensive than ever, the state should be helping to make it cheaper for Arizonans,’’ he argued in his legal briefs. “The state is deliberately squatting on the excess fund instead of refunding it to patients or using it in furtherance of the Arizona Medical Marijuana Act, such as to help patients.’’
Berberian also contends this is no accident, claiming that Jan Brewer who was governor when the measure was approved, “influenced the setting of the initial patient and caregiver card prices to keep many qualifying patients from accessing legal medication.’’ And he said the administration of current Gov. Doug Ducey has remained hostile to the medical marijuana program.
He is asking Maricopa County Superior Court Judge Jo Lynn Gentry to order the health department to reduce the fees.
But Assistant Attorney General Aubrey Joy Corcoran wants the case thrown out. She contends voters gave state health officials wide leeway in setting the fees.
She also said allegations that Ducey wants to keep fees high to limit access to medical marijuana are “without merit’’ and “unsupported.’’
More to the point, Corcoran told Gentry she has no legal right to intercede, saying the question of whether the fees are excessive and unreasonable is “a nonjusticiable political question’’ beyond the reach of the courts.
But Berberian could have an unlikely ally in his fight: Will Humble who was state health director under Brewer.
Humble told Capitol Media Services he set the $150 fee based on some assumptions about start-up costs and the number of patients who would qualify.
As it turned out, his estimate of 25,000 patients was far too low, with the latest reports showing more than 100,000 have been certified by doctors as having conditions that entitle them to purchase and use the drug. And Humble said the computer servers necessary to run the program are now paid for.
“By 2013 I knew the fees were too high,’’ he said, saying he moved to reduce them for some people in financial need.
But those efforts came to a halt when he quit following Ducey’s 2014 election. And there has been no similar move since by Cara Christ, his successor.
This new lawsuit is the latest in what has been a sometimes contentious relationship between the voters who approved the measure and state officials who have been less than enthusiastic in allowing marijuana to be sold and used legally.
The 2010 law allows individuals with certain medical conditions and a doctor’s recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. It also set up a network of state-regulated dispensaries to sell the drug.
Brewer did try to put some roadblocks in the program. She moved to stop Humble from licensing the dispensaries on the premise that the state could not permit the sale of a drug that remains illegal under federal law.
That effort went nowhere and there are currently 99 licensed to sell the drug.
Berberian said there have been other roadblocks and litigation over everything from whether the state is required to add more qualifying conditions to whether marijuana could be sold in liquid form for a child who needed a non-psychoactive version of the drug. He argues that the refusal to reduce the fees is just another example of the state’s hostility to the voter-approved program.
According to Berberian, Becker has suffered for years from a series of ailments. He said doctors gave her four different anti-nausea drugs and opiates to manage her pain.
“Medical marijuana has allowed Lisa to greatly reduce her opiates for pain, and it calms her nausea, permitting her to eat solid food without vomiting,’’ he wrote. But he said that Becker, living on $1,100 a month, has to either borrow money to pay the annual $150 fee or spend less on medications.
Daniels is caregiver to her 12-year-old granddaughter Mercedes who has epilepsy. Berberian said the marijuana has reduced her seizures. But that requires Daniels to pay $350 a year -- $150 for her granddaughter’s card and $200 for hers as caregiver.
Not everyone has to pay that full $150.
One thing Humble said he did manage to accomplish is to give a 50 percent reduction in the cost for patients who receive food stamps, an indication of financial need. The most recent state report shows about 13 percent of applicants qualified for the $75 fee, though that remains an annual expense.
The $11.5 million surplus for the medical marijuana fund listed in the 2015 state report may actually be less than what’s in the account now.
Humble noted the state earlier this year accepted applications for additional medical marijuana dispensaries. And about 750 would-be marijuana retailers each paid $5,000 apiece.