“Seven years in the Senate and I’ve never seen laws like this get attacked by people who have an agenda that is clearly obvious.”
By Wesley Muller, Louisiana Illuminator
A Louisiana Senate panel on Wednesday accused the state medical board of exploiting nuances in state law to obstruct patient access to medical marijuana as part of an agenda that dismisses the drug’s value to medicine.
The Senate Health and Welfare Committee called on the attorney for the Louisiana State Board of Medical Examiners (LSBME) to testify at a State Capitol meeting due to the board’s refusal to allow physicians to recommend medical marijuana via telemedicine without in-person visits.
“Seven years in the Senate and I’ve never seen laws like this get attacked by people who have an agenda that is clearly obvious,” Sen. Jay Luneau (D) said in a fiery exchange with LSBME executive counsel Patricia Wilton.
At a September meeting of the Medical Marijuana Commission, LSBME executive director Dr. Vincent Culotta surprised lawmakers when he told them the board was still making doctors set in-person appointments for patients seeking medical marijuana despite a new law approved earlier this year that allows virtual visits.
At that meeting, Culotta suggested the board could change its rules to comply with the new law, but it appears LSBME has since doubled down on its original position. Wilton told lawmakers Wednesday the new state law is not enough to change the LSBME’s telemedicine rules.
Board won’t follow legislative intent
At issue are four words in a provision of Act 491: “Nothing in this part shall be construed or enforced in any manner that prevents a physician … from recommending therapeutic marijuana through telemedicine.”
Lawmakers said they intended that provision to create an exception to the in-person visit requirement, but Wilton said the first four words of the provision limit the scope of the exception to only what is written in the rest of Act 491. The exception does not extend to other statutes, specifically the telemedicine statutes under Title 37 of Louisiana’s professional and occupational laws, Wilton said.
“Where the problem comes is that telemedicine is in Title 37, and telemedicine is in an entirely different body of law,” Wilton said. “Telemedicine encompasses many statutory requirements.”
One of those requirements is a statute that says a physician shall not prescribe a controlled dangerous substance prior to conducting an in-person examination, Wilton said.
Lawmakers pointed to two things they said were wrong about Wilton’s argument.
The first is that the statute Wilton referred to applies to the prescription of controlled dangerous substances, not the “recommendation” of marijuana. Sen. Fred Mills (R) said the legislature changed the law several years ago so that marijuana can only be recommended, not prescribed.
The second is a clause at the beginning of the statute that states, “Except as authorized by R.S. 37:1271.1 or otherwise by rule promulgated by the board…”—meaning the medical board can decide whether it wants to apply the in-person visit requirement for any drug.
Both Mills and Sen. Patrick McMath (R) asked the LSBME to use its authority to rewrite the rules to reflect the legislature’s intent that in-person visits not be required for recommending medical cannabis.
“Knowing the intent of the law, why wouldn’t you go back and write the rule?” Mills asked.
Wilton described herself as “a Scalia person,” referring to the legal philosophy of late Supreme Court Justice Antonin Scalia, and said she goes by only the way a law is written and gives little consideration to legislative intent. She suggested the legislature pass a new law that specifically excludes medical marijuana from the telemedicine in-person visit requirement in Title 37.
“Legislative intent is important, it’s meaningful, but we go by the words on the page,” Wilton said. “That’s how I was taught statutory interpretation. I worked for the attorney general’s office for 15 years, I wrote legal opinions, and so we can’t go by what somebody meant to say. We have to go by what they actually enacted into law.”
Luneau, who is also an attorney, pushed back, saying the LSBME is trying to supplant the legislature’s intent with the board’s own interpretation of the law.
“When you talk about intent of the law, the [medical] board is trying to say what the intent is,” Luneau said. “That’s the very basis of what you’re trying to do. I don’t see any way around that… Your rules are supposed to be in furtherance of the laws that are passed, and they’re not. Why are they not?”
Medical board ‘was very derogatory to this body’
Luneau suggested LSBME members would face consequences if they continue to “thwart” the laws of Louisiana, essentially threatening to make them testify to their actions before the Senate.
“That’s not a threat—that’s a promise,” Luneau said. “I am tired of people thwarting what we’ve been trying to do to help [medical marijuana patients] through this process. It is my opinion that that is obviously what [LSBME is] trying to do. They’re trying to find a reason and a way to thwart it.”
Wilton denied the medical board has any ill intentions to thwart or slow down the medical marijuana laws.
“I cannot say more sincerely and more honestly, I promise you nobody on my board is trying to be counter to law,” Wilton said.
Mills, the committee chairman, then called on Senate staff attorney Christine Peck to testify about the legislature’s history of dealings with the LSBME regarding medical marijuana legislation.
Peck said this latest impasse about in-person visits is just “par for the course” with the board. She said she witnessed first-hand how medical board members have resisted and opposed changes to the law dating back to the early legislation that legalized medical cannabis.
Peck recounted how board members were vocal about how they “didn’t believe in medical marijuana” and did not want to work with legislative staff on writing new rules to accommodate the changes in the law. Some medical board members even mocked the legislature’s “infinite wisdom” in legalizing the drug, she said.
“That’s a fact. That’s true,” Peck told the committee. “We were all sitting in the meetings. I personally went to New Orleans to sit in on the board meeting to listen to [the LSBME] debate on how to implement your law, and again that board was very derogatory to this body… One of the board members went on about how he couldn’t even look at his mother in the eye anymore because he had to do this.”
Wilton again denied that medical board members were deliberately trying to hinder patient access to medical marijuana, but Luneau remained unconvinced, saying LSBME would have already rewritten the rules if board members sincerely wanted to accommodate the new law.
Luneau told Wilton that if LSBME continues to refuse to rewrite its rules, he would consider introducing legislation that would revoke LSBME’s rule-making authority and give that power to some other agency or board.
“What we may need to do is we may need to change the law on who is allowed to write these rules and how that works,” Luneau said. “Maybe that’s what we need to do to make sure that the legislative intent is put forth and followed.”
Wilton said she would like to wait to receive an opinion from the Louisiana Attorney General’s Office that she hopes will settle the different interpretations of Act 491, but Luneau scoffed at the suggestion and pointed out that an attorney general’s opinion is meaningless and has no real force of law.
An attorney general’s opinion is a written interpretation of existing law, but the opinions carry no legal weight and can include statements of political posturing that inject partisanship or more controversy into a debate.
“I will tell you that physicians are, they’re just worried,” Mills said. “They’re not sure what to do next, and they just see this as a hindrance to patient care.”