In the course of designing and implementing a “medically-focused program benefitting patients,” the Pennsylvania Department of Health has been tasked with selecting a limited number of businesses and contractors that will grow, process, test, and dispense medical marijuana products for patients in the Commonwealth. As such, the ensuing “gold rush” has been covered heavily in the news, with waves of prospective businesses pouring in to flex their marijuana biz cred, patient-centric mission statements, financial fitness – legitimate factors that can potentially impact the overall quality of the program. While a merit-based scoring system for prospective businesses will certainly be considered first and foremost, the process of separating the wheat from the chaff could come down to a single factor that has absolutely nothing to do with medical marijuana.
How The Medical Marijuana Program Got So Diverse
Before we look at the way that the “diversity goals” will potentially confuse and pervert the selection process, it is important to understand how the concept of diversity even came up as a determining factor in the first place. Interestingly, the concept of achieving diversity in the Program goes all the way back to PA’s Medical Marijuana Act. Basically, this is the law that makes medical marijuana legal. It also identifies the Department of Health as the administrative authority when it comes to designing and implementing the Medical Marijuana Program in PA.
The promotion of “Diversity Goals” was first codified by the Legislature in Section 615 of PA Act 16 – Medical Marijuana Act.
Section 615. Diversity goals.
(a) Goals.–It is the intent and goal of the General Assembly that the department promote diversity and the participation by diverse groups in the activities authorized under this act. In order to further this goal, the department shall adopt and implement policies ensuring the following:
(1) That diverse groups are accorded equal opportunity in the permitting process.
(2) That permittees promote the participation of diverse groups in their operations by affording equal access to employment opportunities.
But what does the Legislature actually consider a “Diverse group?”
“Diverse group.” A disadvantaged business, minority-owned business, women-owned business, service-disabled veteran-owned small business or veteran-owned small business that has been certified by a third-party certifying organization.
As you can see, this is a fairly large pool of diverse participants to draw upon. The key thing to notice here is that the “third-party certifying organization” requirement indicates that this is a special kind of diversity – certified diversity.
The general gist of it is that participants in the Medical Marijuana Program must promote diversity and provide equal access to the program to those individuals and businesses that are certified as diverse groups. Whew. That’s pretty harmless at face value, but let’s read between the lines to get a better idea of what is actually going on.
As you may have noticed, the Act goes as far as to set annual diversity reporting requirements for the Department of Health. These reports must include:
(1) The participation level, by percentage, of diverse groups in the activities authorized under this act.
(2) A summary of how diverse groups are utilized by permittees, including in the provision of goods or services.
Why would the legislature push diversity into the requirements for the state Medical Marijuana Program? Who knows? I’m guessing there was some sort of diversity initiative going on at the time. Regardless of their motive, the Legislature cannot enact laws that are overtly discriminatory (eg. 2 out of 37 permits must be granted to Diversity Group A by law)
They can, however, require the Department of Health to report on the diversity progress within the program. The idea of reporting in and of itself implies a progress update that is motivated by a desire to achieve some sort of measurable results – a roll call. For some confounding reason, Act 16 says Pennsylvania’s patients need a Medical Marijuana Program + Diversity, and it is up to the Department of Health to somehow make this happen. One can assume that this has something to do with the recent uproar in Maryland’s selection process.
Diversity Goals – Makin’ It Happen In Section 3
Back in January, prospective applicants seeking a permit to become a grower/processor and/or dispensary were presented with an official application through the Department of Health’s website. In the application, the first two sections encountered required the applicant to fill out some basic contact and facility information. It was the next section, Section 3, that was the first scored portion of the application.
This section did not seek to determine the operational readiness of the applicant, such as the applicant’s past experience with construction projects, or the applicant’s mastery of repeatable cultivation methods and extraction technologies. It didn’t even require the applicant to demonstrate that they will possess the necessary capital to carry out the business that they were proposing.
First and foremost, show me your diversity.
But wait, there’s more!
On the Department of Health’s application scoring rubric, there are just two sections in the entire application that are scored with highest possible value of 100 points. One of these sections is titled, “Community Impact.” Can you guess the other?
And just in case you missed it, here’s the highlight reel:
What This Means To Patients
In implementing PA’s Medical Marijuana Program, the Department of Health lists the following as “Guiding Principals” on their website:
- medically-focused program benefitting patients
- effective communication
- consistent, competent and efficient
- leading, innovative, research-driven program
Political agendas that are being pushed into the medical marijuana program are most certainly at odds with the medical needs of patients in the Commonwealth. Simply put, diversity is not a reliable predictor of the potential success of a marijuana business, nor does it have anything to do with patients who need medical marijuana.
Patients need access to a variety of medical marijuana products at a price that they can afford out of pocket. For this to happen, patients require a stringent, merit-based selection process that awards points based on the ability to produce and distribute medical marijuana products at the highest levels of efficiency and quality. This becomes even more important in a regulatory environment that eliminates competition through the issuance of a limited number of permits. Why? Think of it this way: if one of these ill-chosen businesses goes belly-up, it will reduce the available supply of medical marijuana substantially, leading to shortages and increased prices. When there are only 12 producers in the whole state, this could be a major disruption.
We Are Watching
For starters, check out our post on the Department’s highly suspicious selection of disgraced software vendor, MJ Freeway, as the state seed-to-sale tracking system.
We will be closely monitoring the implementation of the Medical Marijuana Program in the coming months. When it comes to the impact of diversity goals on the selection process, we run into a bit of a dilemma. The Department of Health, which can’t seem to stop talking about how committed they are to transparency, has drafted regulations that seem to suggest that not even the applicant, let alone the public, will have access to the application scores for review:
Notice also that any information relating to who will be scoring the applications or how they will ensure consistency across applications is shrouded in secrecy. According to Department Spokesperson April Hutcheson, this deliberate preference for opacity over transparency is “to ensure that this remains a level playing field.” Huh?
All is not lost, though:
“Hutcheson said the agency plans to eventually release the applications publicly, although it remains unclear whether that will happen before or after the applications are scored and permits are issued.”
Finally, the Department has been less than forthcoming in the Q&A section of the program’s website as to whether or not they will be providing any way for the public to double-check their work:
Call your congress(wo)men, post your thoughts, and stay tuned for more updates. Until then…
Let the watch begin.