Pubdate: Mon, 21 Oct 2013
Source: Desert Sun, The (Palm Springs, CA)
Copyright: 2013 The Desert Sun
Contact: http://local2.thedesertsun.com/mailer/opinionwrap.php
Website: http://www.mydesert.com/
Details: http://www.mapinc.org/media/1112
Note: Does not accept LTEs from outside circulation area.
Author: Xochitl Pena
Page: A1

DISPENSARY RULES SPUR CONCERNS

PALM SPRINGS -- Medical marijuana users in Palm Springs don't have to 
register with the state, but their information is entered into a 
local dispensary database that can be reviewed by city officials, a 
requirement some privacy experts say goes too far.

Patient records, including a physician's referral, must be maintained 
by each dispensary and made available upon demand, according to the 
city's ordinance.

Some dispensary owners wonder if the request violates HIPAA, the 
American Health Insurance Portability and Accountability Act. The law 
protects individual medical records and other personal health information.

City Attorney Doug Holland said access to patient records is needed 
to verify physician certificates.

"It's not to view ... what their symptoms are or what their medical 
condition is but to ensure they are, in fact, bonafide patients," he said.

Joseph Rhea, a criminal defense attorney who represents dispensaries 
in the Coachella Valley, was surprised to see that in a city 
ordinance because of the legal ramifications.

"They shouldn't be reviewing patient records. If they actually tried 
to do it, the dispensaries would probably sue the city," he said. "I 
have never heard of a dispensary voluntarily turning over patient 
records without a court order."

Holland said City Manager David Ready has already instructed city 
staff to review patient records.

"He's delegated people to do that, and we're in the process of doing 
it again. We've done it on two previous occasions," Holland said.

The city ordinance, which requires dispensaries to follow a lengthy 
list of rules, was preceded by about two years of discussion and 
research, he said. There was a lot of debate about whether the 
requirement was an "unwarranted invasion" on patients.

"We did an entire evaluation, and we had a number of people who were 
active in the trade, and it was all agreed to. Everybody was on 
board," Holland said.

Lanny Swerdlow, a marijuana advocate and former Riverside dispensary 
operator who was involved in creating the ordinance, said he doesn't 
recall that part of it.

"I think that's a HIPAA violation -- the city manager has enough 
common sense not to do it," he said. "The patient's records and 
ailments is nobody's business but the doctors' and patients.'"

Dale Sky Jones, executive chancellor of for-profit Oaksterdam 
University in Oakland and Chairwoman for Coalition for Cannabis 
Policy Reform agrees.

"It's sketchy. It is without question a violation," she said.

Even if the city officials are only looking at the doctor 
certifications, she said some doctors might add a patient's diagnosis 
to the certification.

"There are some diagnoses you don't want everyone to know about," she said.

There are more privacy-friendly ways to go about verifying patients 
that should be considered, such as using a third-party verifier, she said.

Close scrutiny sought

The city's ordinance also requires providing security camera 
recordings to the city manager upon verbal request with no subpoena 
or search warrant, plus allowing him to enter any dispensary 
unannounced to observe operations.

Though not specifically mentioned in the ordinance, the city hoped to 
regularly audit the dispensaries. Two have been, but C.A.P.S., the 
most recent dispensary to receive a permit, has yet to be, said 
Councilwoman Ginny Foat.

Holland said the audits are to ensure they are in compliance with city code.

"It's, in essence, a performance review to ensure they are doing 
everything they have agreed to do and is required under the code," he 
said. "We're monitoring all their business records, all of their 
incorporation records, all of their minutes of their meetings as a non-profit."

The city will review their revenues and revenue handling practices, 
as well, which will become especially important if Measure B passes, he said.

The Measure B ordinance on the Nov. 5 ballot in Palm Springs says 
that up to $15 will be charged for every $100 in proceeds from the 
dispensaries, though the council could decide on a lesser amount.

If there are problems, the dispensaries will be required to fix them 
"rather quickly," he said.

Desert Organic Solutions and Organic Solutions of the Desert have 
been reviewed. Neither owner wanted to go into detail about the 
audit, but said they were forthcoming with city officials.

"We have nothing to hide," said Jim Camper, president at Organic 
Solutions of the Desert.

Holland said the city is gearing up to review all three dispensaries.

"I think it should be done on an annual basis, but it is 
time-consuming and it is costly," he said. "If we can get Measure B 
it will help with some of those issues."

Based on past reviews, each site visit can take three to four hours. 
The review of documents is done piecemeal.

"We don't have the resources to do it non-stop. We do bits and pieces 
as we go through it. Everybody has stuff to do," he said.

Kris Hermes, spokesman with Americans For Safe Access, questions the 
city's need to conduct regular audits of dispensaries, saying they 
should only be done if there is concern over a dispensary not 
complying with law or not operating as a non-profit.

Though Hermes understands it is hard to know if a dispensary is truly 
operating as a "not-for-profit" business without reviewing gross 
receipts and expenditures, he said such reviews can also make 
dispensaries susceptible to self-incrimination and criminal 
prosecution because medical marijuana is still illegal under the 
federal government.

"What would work better, in our view, is to only allow this type of 
scrutiny or audit if there is a suspicion... then those records 
should only be allowed to local governments by subpoena," he said.

Though the dispensaries are supposed to operate as a "non-profit" 
Swerdlow said they can become lucrative businesses.

"The idea is that nobody can pocket the money that is above the 
expense. .. (but) they can pay themselves a nice big fat salary," he said.

Swerdlow said he used to get a handful of calls each week from people 
seeking advice on opening a collective even though they had never 
been involved prior in medical marijuana advancement or patient 
compassion issues.

"There's a lot of money to be made. For most collective operators, 
it's all about making money," he said.

Unique testing rule

In addition to maintaining regular reviews of the dispensaries, the 
city plans to require quality testing of the cannabis to ensure the 
medicine is good and not laced or tainted with pesticides or illicit drugs.

Holland said he is working on an amendment to the city's medical 
marijuana ordinance that would require cannabis quality testing 
before the pot is dispensed to patients. The amendment would have to 
be approved by the City Council.

"Because of the nature of the product, there are shortcuts that are 
made by some of the growers. There are certain kinds of chemicals 
that are being applied to the product during the growing cycles that 
may be dangerous to patients or people that use the product," he said.

The mandate could make Palm Springs the only California city to have 
such a requirement, say city leaders and medical marijuana advocates.

Hermes said he believes Los Angeles required such testing until 
voters passed Proposition D in May, which capped the number of 
clinics to 135, increased taxes on the dispensaries and eliminated 
that mandate.

He said there are some dispensaries that already test their 
marijuana, but most don't. His fear is that such a mandate could 
result in higher prices passed on to the consumer and an additional 
layer in getting the cannabis to patients.

Camper said all the licensed collectives in Palm Springs have been 
lab testing their marijuana for more than a year so the patients know 
their medicine is clean.

It's not cheap, but is done "to ensure no tainted meds reach our 
patients," Camper said.

C.A.P.S. has two separate laboratories test its products.

Still, Holland said the city wants to ensure there is a uniform 
process in place. The mandate is not typical at the local level.

"Colorado and Washington have both allowed for marijuana in their 
jurisdictions, and they are looking at having comprehensive 
regulatory programs, and we are monitoring their programs...in 
addition to looking at some FDA practices and procedures," he said.

Mark Silver, an edibles chef and owner of The 420 Kitchen is a member 
of the California Association for the Promotion of Safe Cannibas 
Infused Edibles.

He provides edibles to dispensaries across Southern California, 
including ones in Palm Springs.

He supports quality testing and thinks it helps set him apart from 
other edible companies.

"I've been doing this for four years. I've seen edible companies come 
and go, because they've been inconsistent. One thing I do, I have my 
product tested, which a lot of people don't. That way I know the 
potency of all my products."
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MAP posted-by: Jay Bergstrom