Providence County Superior Court
For Plaintiff: Thomas E. Folcarelli, Esq.
For Defendant: Michael W. Field, Esq. Susan E. Urso, Esq.
Before the Court on this declaratory judgment matter is Defendants'—Rhode Island Department of Health and its director Dr. Michael Fine (collectively Defendants or DOH)—Motion for Summary Judgment in regard to Plaintiffs'—William Andrade and Meghan Sullivan (Mr. Andrade and Ms. Sullivan or, collectively, Plaintiffs)—Fifth Amended Complaint seeking a declaration that DOH amended its regulations in regard to the Medical Marijuana Program (MMP) without following the procedures required under Rhode Island law. Defendants seek summary judgment on the grounds that Plaintiffs' Fifth Amended Complaint is moot because both Plaintiffs have received their medical marijuana registry identification cards (MM cards) since the filing of the Fifth Amended Complaint and, therefore, no longer have an outstanding injury. Jurisdiction is pursuant to Super. R. Civ. P. 56(b) and G.L. 1956 §§ 9-30-1, et seq., the Uniform Declaratory Judgments Act (UDJA). For the reasons set forth below, this Court grants Defendants' Motion.
Facts and Travel
On or about June 26, 2012, Mr. Andrade and Ms. Sullivan each applied for a MM card under The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, chapter 28.6 of title 21 of the Rhode Island General Laws (MMA). Both applications contained the required written certification and were signed by nurse practitioners (NPs).
Under the MMA, any "qualifying patient" seeking to obtain a MM card—which allows the bearer to possess up to two and one-half ounces of usable marijuana—must submit a written certification to the DOH. Secs. 21-28.6-4(a), 21-28.6-6(a)(1). By its definition, the written certification must be signed by a "practitioner, " which the MMA defines as "a person who is licensed with authority to prescribe drugs pursuant to chapter 37 of title 5 or a physician licensed with authority to prescribe drugs in Massachusetts or Connecticut." Sec. 21-28.6-3(8). DOH regulations provide the same definition for "practitioner" as defined in the statute. 14 000 CRIR 035-1.11. When the MMP first began, DOH required the signature of a physician on the written certifications. (Defs.' Ex. 10.) Around 2008, DOH began accepting signatures by licensed NPs or physician assistants; however, no change was made to either the MMA or the relevant DOH regulations. (Defs.' Ex. 10.) The DOH issued a public notice in July 2012 stating that as of August 7, 2012 written certifications must be signed by physicians in order to be valid. (Defs.' Ex. 10.) Again, no change was made to the wording of DOH regulations or the MMA.
The DOH is required to respond to a MM card application within fifteen days of receipt, and an application is to be deemed granted if DOH fails to respond within thirty-five days. Secs. 21-28.6-6(c), 21-28.6-9(b). In this matter, it is undisputed that DOH did not act upon either of Plaintiffs' applications for over thirty-five days.
On August 13, 2012, Ms. Sullivan was arrested and charged with possession of marijuana in violation of §§ 21-28-2.08 and 21-28-4.01(a)(4)(i). On or about August 17, 2012, Mr. Andrade was arrested and charged with possession of marijuana in violation of §§ 21-28-2.08 and 21-28-4.01(a)(4)(i). Mr. Andrade was allegedly in possession of 33.16 ounces of usable marijuana. (Defs.' Exs. 3, 4.) Under the MMA, a holder of a MM card may legally possess only up to 2.5 ounces of usable marijuana. Sec. 21-28.6-4(a).
On August 30, 2012, Mr. Andrade received a letter from DOH stating that his application was denied because signatures from NPs were no longer sufficient for the written certification. (Fifth Am. Compl. ¶ 13.) After September 5, 2012, Ms. Sullivan also received a letter from DOH indicating that her application was denied for the same reason. (Fifth Am. Compl. ¶ 32.)
In response to DOH's denial and Ms. Sullivan's arrest, she filed a Complaint with this Court on September 11, 2012. Mr. Andrade was added as a co-Plaintiff in the Fourth Amended Complaint, filed with this Court on February 21, 2013, a date subsequent to his arrest. Ms. Sullivan's criminal charges have since been dismissed, and her record has been sealed. Mr. Andrade's criminal charges remain pending. Meanwhile, both Plaintiffs reapplied for MM cards with written certifications signed by physicians, and both received MM cards in October or November of 2012. (Defs.' Ex. 8.)
On October 4, 2013, DOH issued a public notice indicating that its decision to require physician signatures was made to correct a prior error in allowing signatures by NPs or physician assistants. (Defs.' Ex. 10.) The notice indicated that DOH did not believe that the change in procedure constituted a rule change requiring notice and comment under the Administrative Procedures Act, G.L. 1956 § 42-35-3 (APA). (Defs.' Ex. 10.) However, for the purposes of "maximum transparency and the opportunity for public comment, " DOH invited the opportunity for public comment for the following thirty days on both the initial change and its "ongoing effect." (Defs.' Ex. 10.)
The instant Fifth Amended Complaint alleges that DOH's August 7, 2012 change to no longer accepting an NP signature deprived Plaintiffs of a liberty interest in their health care and denied them due process. They assert that the rule change was a violation of the APA, specifically because DOH did not provide notice prior to the change or allow a period for public comments. In their Fifth Amended Complaint, Plaintiffs seek eleven enumerated declarations by this Court, including that DOH violated the APA when it stopped accepting NP signatures under the MMA and that Plaintiffs were entitled to MM cards based on their initial applications. Defendants have moved for summary judgment on the ...