State agency hit with Rx pot suit

Grower, dispensary challenge rules on issuing prescriptions

A medical-marijuana grower and a dispensary are teaming up to challenge the legality of Arkansas Health Department rules that bar doctors from issuing prescriptions without an in-person patient examination.

In an 11-page suit filed Friday, Good Day Farm Arkansas LLC, a Pine Bluff cultivator, and Capital City Medicinals LLC of Little Rock sued the agency and its chief, Health Secretary Jose Romero, asking Pulaski County Circuit Judge Mackie Pierce to invalidate Health Department rules the plaintiffs claim contradict state law.

Good Day and Capital City are represented by attorneys Stephen Lancaster, Gary Marts and Erika Gee of the Wright, Lindsey and Jennings firm of Little Rock.

The law, Act 1112 of 2021, went into effect July 28 with the intent of creating an exception to restrictions on telemedicine to allow doctors to remotely certify eligible patients for a medical marijuana card, according to the lawsuit.

The House of Representatives approved the measure in April after Senate passage on a 23-9 vote. Proponents said the law would make permanent an exemption to telemedicine restrictions adopted by the Health Department because of the covid-19 pandemic.

“Even though Act 1112 has been in effect for more than five months, the Department has failed to implement it in its process for issuing registry identification cards,” the suit states. “The Rules still prohibit the use of ‘telemedicine’ for issuing written certifications … with none of the clarifications provided by Act 1112 and no allowances for them, either. The Rules thus contradict Act 1112 and are therefore invalid.”

The suit says the department’s failure to recognize Act 1112 is inflicting “irreparable harm” on potential clients trying to obtain a registry identification card and current customers who need to renew their cards. Particularly at risk are qualified patients who cannot easily see their doctor in person.

“[Telemedicine prescriptions] are vital given the current circumstances of the COVID-19 pandemic, in which the state is experiencing a record daily rise in cases and a record for active cases that, according to the Secretary, threaten to overwhelm parts of the state’s healthcare system,” the suit states. “Act 1112 offers qualifying individuals and designated caregivers a safe, effective way to handle the written certification process safely without contracting COVID-19.”