On Wednesday, the Senate Health and Welfare Committee accused the state medical board of obstructing patient access to medical marijuana. The committee called on the attorney for the Louisiana State Board of Medical Examiners (LSBME) to testify regarding the board’s refusal to allow doctors to recommend medical marijuana during a telehealth visit without an in-person visit.
“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,” said Sen. Jay Luneau (D-Alexandria).
The issue first came to light during a September meeting of the Medical Marijuana Commission. At that time, LSBME executive director Dr. Vincent Culotta told lawmakers that the board was still requiring doctors set in-person appointments for patients seeking medical marijuana, in direct contradiction to a law signed earlier this year allowing virtual visits. Act 491 reads, in part: “Nothing in this part shall be construed or enforced in any manner that prevents a physician … from recommending therapeutic marijuana through telemedicine.” Culotta originally suggested the board would change its rules to comply with the law, but so far LSBME has not done so.
Instead, LSBME executive counsel Patricia Wilton says that those first four words – “Nothing in this part” – limit the scope of that exception to only what is written in the rest of Act 491 and does not apply to other statutes.
“Where the problem comes is that telemedicine is in Title 37, and telemedicine is an entirely different body of law,” Wilton told legislators. “Telemedicine encompasses many statutory requirements.”
Included in those requirements is a statute that says no Louisiana physician can prescribe controlled substances without first conducting an in-person examination.
But legislators disagree, saying that the intent of the provision within Act 491 was to ensure patients who need it can have access to medical marijuana without an in-person visit.
“Knowing the intent of the law, why wouldn’t you go back and write the rule?” Sen. Fred Mills (R-New Iberia) asked.
Wilton answered saying that she gives little consideration to legislative intent, and suggested instead that the legislature should pass an entirely new law that specifically excludes medical marijuana from the telemedicine in-person visit requirement.
“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.”
But lawmakers weren’t impressed. Senate staff attorney Christine Peck testified that this type of obstruction is “par for the course” when it comes to dealing with the LSBME on medical marijuana. The Committee is now considering whether to introduce legislation that would remove LSBME’s authority to make its own rules on how to follow state law.
“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.”
