PHOENIX — A judge has rebuffed efforts by medical marijuana users to force the state to reduce the fees it charges patients.
Maricopa County Superior Court Judge Jo Lynn Gentry said she does not dispute that the Department of Health Services is collecting more from medical marijuana users than it needs to administer the program.
In fact, documents obtained by Capitol Media Services show that this fiscal year, which began in June, the agency has taken in more than $19.9 million in fees. By contrast, expenses in the same period total less than $7.8 million.
And the balance in the fund, which rolls over from year to year, now exceeds $31 million.
But Gentry said the only thing spelled out in the 2010 voter-approved Arizona Medical Marijuana Act is that the health department must collect sufficient fees to cover the costs of the program. There is nothing in the law that prohibits it from taking in more than needed.
The judge said the lawsuit essentially asks her to reset the fees at a more reasonable level. And that, Gentry said, is something that courts are in no position to do.
Attorney Sean Berberian said he intends to appeal.
“Arizona’s voters passed the AMMA to give legal access to medicine, not to create unnecessary financial hurdles to obtaining it,” he said. Berberian said the fees, which can range up to $150 a year for patients and $200 for caregivers who help patients, amount to “unnecessary and unlawful barriers” for patients to get marijuana that doctors have recommended to them.
The 2010 law allows individuals with certain medical conditions and a doctor’s recommendation to obtain up to 2½ ounces of marijuana every two weeks. It also set up a network of state-regulated dispensaries to sell the drug.
Arizona elected officials were not happy with the initiative.
Jan Brewer, then governor at the time, did try to put some roadblocks in the program. She moved to stop Will Humble, then state health director, 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 in the state 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 nonpsychoactive 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.
The legal fight is not just about academics.
He said one patient, Lisa Becker, has suffered for years from a series of ailments.
Berberian said doctors gave her four anti-nausea drugs and opiates to manage her pain. He said that medical marijuana has reduced her need for opiates and calms her nausea, permitting her to eat solid food.
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.
The other plaintiff is Yolanda Daniels, who 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.
Gentry said she’s in no legal position to say whether that’s too much.
“The only way the court could determine what fee meets the sufficiency requirements of the AMMA and the constitution would be to take over the administration of the AMMA from DHS,” she wrote.
That would put the court in the position of setting operating budgets based on policy decisions about everything from salaries to litigation expenses, decisions the law specifically leaves to the health department.
