Dch Requested Legal Opinion Of Cox

[+Dizledot]

 

 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

 

MEDICAL MARIHUANA ACT: Authority of Michigan Department of

 

Community Health to enter into an

DEPARTMENT OF COMMUNITY agreement with a private or public

HEALTH: contractor for the purpose of administering

 

the Medical Marihuana Program

 

The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not

prohibit the Department of Community Health from entering into an agreement or contract with an

outside vendor to assist the department in processing applications, eligibility determinations, and

the issuance of identification cards to patients and caregivers, if the Department of Community

Health retains its authority to approve or deny issuance of registry identification cards.

 

2009 AACS, R 333.121(2) promulgated by the Department of Community Health under the

Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides

that the confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

 

Opinion No. 7250 August 31, 2010

 

Honorable Roger Kahn, M.D.

State Senator

The Capitol

Lansing, MI 48909

 

You have asked two questions regarding the authority of the Michigan Department of

 

Community Health (DCH) to contract out certain of its responsibilities under the Michigan Medical

 

Marihuana Act (MMA or Act), Initiated Law 1 of 2008, MCL 333.26421 et seq.

 

The MMA was an initiative approved by a majority of Michigan voters in November 2008,

 

and which became effective December 4, 2008. See Const 1963, art 2, § 9. Under the MMA, "[t]he

 

medical use of marihuana is allowed under state law to the extent that it is carried out in accordance

 

with the provisions of this act." MCL 333.26427(a). The Act protects qualifying patients with

 

 

debilitating medical conditions, and their primary caregivers, if any, from arrest, prosecution, and

penalty for the medicinal use of a limited amount of marihuana in accordance with the MMA.

MCL 333.26424(d)(1) and (2). In order to receive the protections of the MMA, patients and

caregivers must apply for and receive a registry identification card issued by DCH. MCL

333.26424(a).

 

You ask whether DCH is prohibited under the MMA from contracting with an outside

vendor to handle the processing of applications, eligibility determinations, and the issuance of

registry identification cards to patients and caregivers.

 

Because the Act was a citizen initiative under Const 1963, art 2, § 9, it must be interpreted in

light of the rules governing the construction of citizen initiatives. "There is no essential difference

in the construction of statutes enacted directly by the people and those enacted by the Legislature."

OAG, 1985-1986, No 6370, pp 310, 313-314 (June 10, 1986). "[A] study of all of the provisions of

the initiated statute" may reveal the intent of the electorate. Id.

 

The key inquiry in construing an initiative is "the collective intent of the people," and the

people's intent may be measured by their "common understanding . . . of the purpose of the initiated

law." Id. The language of the ballot proposal itself and, when appropriate, the arguments set forth

during the campaign regarding the initiative should be consulted in discerning the people's intent.

Id.

 

The Michigan Court of Appeals has explained that initiatives should be "liberally construed

to effectuate their purposes" and to "facilitate rather than hamper the exercise of reserved rights by

the people." Welch Foods v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995). In

 

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addition, the words of an initiated law should be given their "ordinary and customary meaning as

would have been understood by the voters." Id. To the extent that the initiative contains any

ambiguity, it must be constructed in light of the purpose of the initiative. Id. at 462.

 

The MMA is silent with respect to whether DCH may contract with a third party to carry out

its duties to process applications and issue registry identification cards. The Act defines the term

"department" as used in the Act to mean "the state department of community health," or DCH.

MCL 333.26423(b). Section 6(a) of the Act provides, in part, that "[t]he department shall issue

registry identification cards to qualifying patients . . . ." MCL 333.26426(a). Section 6© states

that "[t]he department shall verify the information contained in an application or renewal submitted

pursuant to this section, and shall approve or deny an application or renewal within 15 days of

receiving it." MCL 333.26426©. Similarly, section 6(e) directs that "[t]he department shall issue

registry identification cards within 5 days of approving an application or renewal, which shall

expire 1 year after the date of issuance." MCL 333.26426(e). Nowhere in the language of these

sections – or the other relevant provisions of the Act – does the MMA refer to or authorize an entity

other than DCH to perform its statutory duties.

 

However, by specifically designating DCH as the state department charged with carrying out

the duties of the MMA, the Act implicitly incorporated the administrative or ministerial powers and

authority that enable the department to function as a department. Part 22 of the Public Health Code

(Code), 1978 PA 368, MCL 333.2201 through 333.2264, describes the general powers and duties of

the Department of Public Health, now DCH, and its director. MCL 333.2226© provides that "[t]he

department may" "[e]nter into an agreement, contract, or arrangement with governmental entities or

other persons necessary or appropriate to assist the department in carrying out its duties and

 

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functions." This section clearly authorizes DCH to engage the services of a third party to assist the

department in performing its duties.1 Pursuant to the MMA, the processing and issuance of medical

marihuana registry identification cards are now duties or functions of DCH. Reading the Act and

section 2226© of the Code in harmony with one another leads to the reasonable conclusion that

DCH may exercise its authority to contract with a third party to assist the department in carrying out

its new functions and duties under the MMA. See, e.g., Edmond v Dep’t of Corrections, 254 Mich

App 154, 157-158; 656 NW2d 842 (2002).

 

This interpretation is consistent with the principle that initiatives should be "liberally

construed to effectuate their purposes" and to "facilitate rather than hamper the exercise of reserved

rights by the people." Welch Foods, 213 Mich App at 461. Allowing DCH to utilize an outside

vendor to process registry applications furthers the purpose of the Act by helping ensure the

efficient processing of current and future applications and renewals.

 

There is a caveat, however. While DCH may enter into an agreement with an outside

vendor to "assist" the Department in processing registry applications, DCH cannot delegate its

discretionary authority to make a final determination with respect to the issuance of registry

identification cards. In OAG, 1979-1980, No 5639, p 580 (January 31, 1980), the Attorney General

concluded that the Barrier Free Design Board could not delegate its duties to grant or deny

exceptions to the barrier free design requirements "because administrative agencies may not

 

1 Notably, this section does not restrict its application to duties or functions assigned by the Code, as other sections do.

See MCL 333.2205(1), which states "[a] function assigned by this code to the department vests in the director or in an

employee or agent of the department designated by the director, or in any employee or agent of the department who is

assigned the function in accordance with internal administrative procedures of the department established by the

director."

 

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delegate the exercise of discretionary acts unless they have been granted legislative authority to do

so." Id. at 581. The Barrier Free Design Board had not been granted such authority.

 

Similarly, the MMA only empowers DCH to grant or deny applications for registry

identification cards. Thus, it would constitute an improper delegation of the department's authority

if an outside vendor were charged with the ultimate task of granting or denying registry

identification cards. Ultimately DCH – through its authorized employees – must make the final

decision whether to grant or deny an identification card under the Act. DCH, however, may

delegate "ministerial duties" such as receiving and processing patient applications to an outside

vendor. Id.

 

It is my opinion, therefore, in answer to your first question, that the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not prohibit the Department

of Community Health from entering into an agreement or contract with an outside vendor to assist

the department in processing applications, eligibility determinations, and the issuance of

identification cards to patients and caregivers, if the Department of Community Health retains its

authority to approve or deny issuance of registry identification cards.

 

You next ask whether the confidentiality provisions in the MMA have the effect of

preventing DCH from entering into a contract with an outside vendor for the purpose of assisting

the department in administering the Medical Marihuana program.

 

The MMA's confidentiality provisions apply to a "person," including DCH and other state

agencies and local units of government, as well as law enforcement agencies. Section 6(h) of the

 

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Act specifically describes the information deemed confidential or expressly exempted from public

 

disclosure:

 

(1) Applications and supporting information submitted by qualifying

patients, including information regarding their primary caregivers and physicians, are

confidential.

(2) The department shall maintain a confidential list of the persons to whom

the department has issued registry identification cards. Individual names and other

identifying information on the list is confidential and is exempt from disclosure

under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(3) The department shall verify to law enforcement personnel whether a

registry identification card is valid, without disclosing more information than is

reasonably necessary to verify the authenticity of the registry identification card.

(4) A person, including an employee or official of the department or another

state agency or local unit of government, who discloses confidential information in

violation of this act is guilty of a misdemeanor, punishable by imprisonment for not

more than 6 months, or a fine of not more than $1,000.00, or both. [MCL

333.26426(h).]2

While names, other personal identifying information, applications and information regarding

 

patients, primary caregivers or physicians are deemed confidential and must not be disclosed

 

contrary to the Act, DCH is implicitly authorized to disclose this information to the extent necessary

 

to fully perform its duties under the Act.3 For example, in verifying the information contained in

 

2 The MMA does require DCH to make public, via an annual report to the Legislature, certain information:

 

(1) The number of applications filed for registry identification cards.

(2) The number of qualifying patients and primary caregivers approved in each county.

3) The nature of the debilitating medical conditions of the qualifying patients.

 

(4) The number of registry identification cards revoked.

(5) The number of physicians providing written certifications for qualifying patients. [MCL

333.26426(i).]

3 The Supreme Court has ruled: "The absence of an explicit grant of authority is not dispositive. This Court, in

Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951), said 'powers [of

administrative boards] are limited by the statutes creating them to those conferred expressly or by necessary or fair

implication.' Quoting 42 Am Jur, § 26, pp 316 ff (emphasis added)." Public Health Dep't v Rivergate Manor, 452

Mich 495, 503; 550 NW2d 515 (1996).

 

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the application, DCH would need to disclose the name of the applicant to the physician listed on the

application. Similarly, the MMA would not prohibit DCH from sharing the information with an

outside vendor under contract with DCH to assist it in carrying out the application and registration

process, so long as the contractual arrangement protected the confidentiality of the information.

Under the MMA, any person who gains access to the confidential information would be required to

protect its confidentiality under threat of criminal fines and incarceration: "A person . . . who

discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by

imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both." MCL

333.26426(h)(4).

 

DCH has addressed the subject of confidentiality in duly promulgated administrative rules.

Section 5(b) of the MMA provides that: "the department shall promulgate rules . . . that govern the

manner in which it shall consider applications for and renewals of registry identification cards for

qualifying patients and primary caregivers." MCL 333.26425(b). Acting under that authority, DCH

promulgated the following rule to implement the requirement to keep information confidential:

 

(1) Except as provided in subrules (2) and (3) of this rule, Michigan medical

marihuana program information shall be confidential and not subject to disclosure in

any form or manner. Program information includes, but is not limited to, all of the

following:

(a) Applications and supporting information submitted by qualifying

patients.

(b) Information related to a qualifying patient's primary caregiver.

© Names and other identifying information of registry identification

cardholders.

(d) Names and other identifying information of pending applicants and their

primary caregivers.

(2) Names and other identifying information made confidential under subrule

(1) of this rule may only be accessed or released to authorized employees of the

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department as necessary to perform official duties of the department pursuant to the

act, including the production of any reports of non-identifying aggregate data or

statistics.

 

(3) The department shall verify upon a request by law enforcement personnel

whether a registry identification card is valid, without disclosing more information

than is reasonably necessary to verify the authenticity of the registry identification

card.

(4) The department may release information to other persons only upon

receipt of a properly executed release of information signed by all individuals with

legal authority to waive confidentiality regarding that information, whether a

registered qualifying patient, a qualifying patient's parent or legal guardian, or a

qualifying patient's registered primary caregiver. The release of information shall

specify what information the department is authorized to release and to whom.

[2009 AACS, R 333.121; emphasis added.]

The plain terms of the rule only allow employees of DCH to have access to the confidential

 

information as necessary to perform the department's duties under the MMA, which include the

 

processing of applications, eligibility determinations and issuance of registry identification cards.

 

An agency is legally bound by its own valid administrative rules. Detroit Base Coalition for

 

Human Rights v Social Services Dep't, 431 Mich 172, 189; 428 NW 2d 335 (1988). Accordingly,

 

the next question to be determined is whether R 333.121 is valid.

 

In Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984), the Court

 

adopted the following test for determining the validity of agency rules, citing Chesapeake & Ohio R

 

Co v Public Service Comm, 59 Mich App 88, 98-99; 228 NW2d 843 (1975):

 

"Where an agency is empowered to make rules, courts employ a

three-fold test to determine the validity of the rules it promulgates: (1)

whether the rule is within the matter covered by the enabling statute; (2) if so,

whether it complies with the underlying legislative intent; and (3) if it meets

the first two requirements, when [sic] it is neither arbitrary nor capricious."

 

An agency's construction of a statute "is entitled to respectful consideration and, if

 

persuasive, should not be overruled without cogent reasons," but "the court's ultimate concern is a

 

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proper construction of the plain language of the statute." In re Rovas Complaint, 482 Mich 90, 108;

754 NW2d 259 (2008). "[T]he agency's interpretation cannot conflict with the plain meaning of the

statute." Id.

 

The MMA provides strict confidentiality requirements, violations of which are criminal

offenses. In an effort to ensure compliance with the requirement, subsection (2) of the Rule

provides that confidential information may only be accessed or released to DCH employees for

purposes of performing official duties under the MMA.4 That rule would not allow DCH to

contract with an outside vendor, giving the vendor's employees access to the confidential

information. Although stricter than required by the MMA, the rule is a reasonable implementation

of the confidentiality provisions of the MMA and in the absence of any provision providing for

release of confidential information to third-party vendors, is not inconsistent with the intent of the

voters. Accordingly, DCH may not contract with an outside vendor to process registry applications

since it may not give the vendor access to the necessary information.5

 

To remedy this situation, DCH could promulgate a new rule as provided in MCL 24.241 and

24.242, or issue an emergency rule if appropriate under MCL 24.248, to allow DCH to pursue

contracts with outside vendors permitting access to confidential information under terms that

protect the confidentiality. Alternatively, the Legislature could act to amend or rescind the rule,

 

4 DCH may also disclose confidential information to law enforcement personnel to verify whether an identification card

is valid, "without disclosing more information than is reasonably necessary to verify the authenticity of the registry

identification card." MCL 333.26426(h)(3).

 

5 It is worth observing that R 333.121(4), which authorizes the release of confidential information to additional persons

if a waiver is obtained, does not provide a mechanism for allowing DCH to contract with an outside vendor because

nothing in the MMA suggests that the processing of an application can be contingent upon a patient's waiver of his or

her right to confidentiality. There are also practical concerns with obtaining the necessary waivers from all of the

appropriate individuals on a case-by-case basis.

 

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MCL 24.231(5), 24.251, or specifically amend the MMA to allow DCH to pursue contracts with

outside vendors. Const 1963, art 2, § 9.

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

 

MIKE COX

Attorney General

 

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[mizerman]

layman's terms?

[peanutbutter]

layman's terms?

 

Michael Cox has told everyone that it is OK to release a list of patients and caregivers to a outside third party. So they can print the ID cards.

[Guest Happy Guy]

Michael Cox has told everyone that it is OK to release a list of patients and caregivers to a outside third party. So they can print the ID cards.

You got it exactly backwards. Read it again:

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

 

MIKE COX

Attorney General

[+Dizledot]

Exactly.... it is the last paragraph that is the official opinion. The answer is NO!

 

Dizz

[Guest Happy Guy]

Kahn wanted it and Cox said no.

[Greg Starks]

No, that is not at all what the opinion says. This opinion crushes privatization - it is a complete victory for those concerned with confidentiality. I reduced it below to its vital parts. In summary, the MDCH is not barred under the act from privatizing, but to do so *would violate* confidentiality rules. Thus, MDCH will not privatize unless rules or the Act is changed.

 

It is also interesting that the AG did not provide this guidance to MDCH when they prepared their report last April.

 

It is time for some injunctive relief, sports fans. Judge Giddings is here until January.

 

Btw, Dr./Senator Kahn chairs the Senate DCH Appropriations Subcommittee, and thus was interested.

 

(sorry, not doing the HTML quoting stuff)

 

*******************************************************************8

 

Opinion No. 7250 August 31, 2010

 

Honorable Roger Kahn, M.D.

State Senator

The Capitol

Lansing, MI 48909

 

You ask whether DCH is prohibited under the MMA from contracting with an outside

vendor to handle the processing of applications, eligibility determinations, and the issuance of

registry identification cards to patients and caregivers.

 

....

 

It is my opinion, therefore, in answer to your first question, that the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not prohibit the Department

of Community Health from entering into an agreement or contract with an outside vendor to assist

the department in processing applications, eligibility determinations, and the issuance of

identification cards to patients and caregivers, if the Department of Community Health retains its

authority to approve or deny issuance of registry identification cards.

 

 

You next ask whether the confidentiality provisions in the MMA have the effect of

preventing DCH from entering into a contract with an outside vendor for the purpose of assisting

the department in administering the Medical Marihuana program.

 

...

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

[+JuztBudz]

In answering the first question, Mr. Cox says that it is alright for MDCH to contract out to a private party, the issuance of cards, then in his reply to the second question he reverses himself, typical political antics from one of our polical antiques. Looking at the back of a long line at the unemployment offices Mr. Cox? Doesn't look pretty, does it Mr. Cox? That is what happens to folks who refuse to do their jobs, isn't it, Mr. Cox...??? The same goes for Ms. Gubernator, eh? Peace on you both...j.b.

[GreatLakesMeds]

In answering the first question, Mr. Cox says that it is alright for MDCH to contract out to a private party, the issuance of cards, then in his reply to the second question he reverses himself, typical political antics from one of our polical antiques. Looking at the back of a long line at the unemployment offices Mr. Cox? Doesn't look pretty, does it Mr. Cox? That is what happens to folks who refuse to do their jobs, isn't it, Mr. Cox...??? The same goes for Ms. Gubernator, eh? Peace on you both...j.b.

 

I think you are misunderstanding. Cox says that the LAW allows for third party card processing but the more restrictive ADMINSTRATIVE RULE promulgated by MDCH does not allow for the distribution of patient and CG names to another party...and that if MDCH promulgates a NEW RULE that overrides their original rule, then vendor processing is an option.

[peanutbutter]

You got it exactly backwards. Read it again:

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

 

MIKE COX

Attorney General

 

WOW you're right! He did something according to the law!!!

 

However, the house version of the budget has an amendment to allow this to take place.

 

Does anyone know if that will be in the final bill?

 

If so it could muster the 75%.

[MmmSquirrel4Dinner]

From what I get from this, is that the Executive branch should allocate funds for the additional hiring of staff to hasten the MMP processes.

[peanutbutter]

I think you are misunderstanding. Cox says that the LAW allows for third party card processing but the more restrictive ADMINSTRATIVE RULE promulgated by MDCH does not allow for the distribution of patient and CG names to another party...and that if MDCH promulgates a NEW RULE that overrides their original rule, then vendor processing is an option.

 

Uh .. no .. It's not the rules that forbids that. It's the law that says they can't give out the names.

 

In fact it is a new crime that people, employed by the government, are supposed to go to jail for.

[welj31]

Exactly.... it is the last paragraph that is the official opinion. The answer is NO!

 

Dizz

Great catch Diz. And in case I have not said it before Thanks for the hard work. I do take notice when I see one of your post. Thanks again John

[Mememe]

Stay alert!

If they figure out a way to have an outsider "help", there will be more overhead. That will make the cost of the card go up. If this ever happens, there should be a stipulation that the outside help should cost no more than x ammount per card issued.

[1337Gr33n]

Excellent work, Dizz! I am happy that Cox denied this. One point for him. (Although he may still have a -Rep of about -5000!) I was VERY concerned about the possibility of privatization, and its potential for HIPAA abuse by law enforcement agencies.

[GreatLakesMeds]

Uh .. no .. It's not the rules that forbids that. It's the law that says they can't give out the names.

 

In fact it is a new crime that people, employed by the government, are supposed to go to jail for.

 

It is my opinion, therefore, in answer to your first question, that the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not prohibit the Department

of Community Health from entering into an agreement or contract with an outside vendor to assist

the department in processing applications, eligibility determinations, and the issuance of

identification cards to patients and caregivers, if the Department of Community Health retains its

authority to approve or deny issuance of registry identification cards.

 

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

 

 

Cox is greasing the skids for MDCH to promulgate an emergency rule to override the above rule. Then privitization is here.

[+Dizledot]

They can however hire more DCH employees to process apps.....will they do this, probably not the states budget deficits will not allow more employees......as for Cox, he had no choice but to follow the letter of the law it is very clear and left no wiggle room.

The opinion was two fold... The law that governs the DCH allows for them to contract out but not if its in direct violation of the MM law and it would be because the DCH must retain their authority to approve or deny. Then the second answer, confidential information "may only be accessed or released to authorized employees of the department," prevents the Department of Community Health from entering into a contract with an outside vendor to process registry applications or renewals.

Dizz

 

 

 

It is my opinion, therefore, in answer to your first question, that the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not prohibit the Department

of Community Health from entering into an agreement or contract with an outside vendor to assist

the department in processing applications, eligibility determinations, and the issuance of

identification cards to patients and caregivers, if the Department of Community Health retains its

authority to approve or deny issuance of registry identification cards.

 

 

 

 

 

MCL 24.231(5), 24.251, or specifically amend the MMA to allow DCH to pursue contracts with

outside vendors. Const 1963, art 2, § 9.

 

It is my opinion, therefore, in answer to your second question, that 2009 AACS, R

333.121(2) promulgated by the Department of Community Health under the Michigan Medical

Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, which provides that the

confidential information "may only be accessed or released to authorized employees of the

department," prevents the Department of Community Health from entering into a contract with an

outside vendor to process registry applications or renewals.

MIKE COX

Attorney General

[Dilligaf]

Why can't we get an opinion from Cox about the rest of the law? Isn't this his job? What's it gonna take?

[GreatLakesMeds]

as for Cox, he had no choice but to follow the letter of the law it is very clear and left no wiggle room.

The opinion was two fold... The law that governs the DCH allows for them to contract out but not if its in direct violation of the MM law and it would be because the DCH must retain their authority to approve or deny. Dizz

 

 

 

Please take another look - Cox makes a legal arguement that the MMMAct DOES NOT prevent MDCH from releasing info to a vendor:

 

"DCH would need to disclose the name of the applicant to the physician listed on the

application. Similarly, the MMA would not prohibit DCH from sharing the information with an

outside vendor under contract with DCH to assist it in carrying out the application and registration

process, so long as the contractual arrangement protected the confidentiality of the information...."

 

"The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, does not

prohibit the Department of Community Health from entering into an agreement or contract with an

outside vendor to assist the department in processing applications, eligibility determinations, and

the issuance of identification cards to patients and caregivers, if the Department of Community

Health retains its authority to approve or deny issuance of registry identification cards. "

 

 

"However, by specifically designating DCH as the state department charged with carrying out

the duties of the MMA, the Act implicitly incorporated the administrative or ministerial powers and

authority that enable the department to function as a department. Part 22 of the Public Health Code

(Code), 1978 PA 368, MCL 333.2201 through 333.2264, describes the general powers and duties of

the Department of Public Health, now DCH, and its director. MCL 333.2226© provides that "[t]he

department may" "[e]nter into an agreement, contract, or arrangement with governmental entities or

other persons necessary or appropriate to assist the department in carrying out its duties and

 

"This section clearly authorizes DCH to engage the services of a third party to assist the

department in performing its duties."

 

Please everyone, read this carefully. COX IS SAYING THAT THE MMMACT ALLOWS FOR MDCH TO HIRE A VENDOR TO PROCESS CARDS!!! and that the only thing that stops them right now is the MDCH's own RULE, which Cox gives them guidance on how to change. Make no mistake, this opinion is a "how-to" for the MDCH to change the administrative rules or promulgate an emergency rule to allow a vendor to take over card processing. Cox goes on to say that a vendor can process cards if the MDCH still retains the final decision-making authority.

[westmich]

First question: Can the MDCH hire outside folks to do their job? - Yes.

 

Second question: Can the MDCH share confidential information with those outside folks in order to the job we hire them to do? - No, not according to your own MDCH rules. Change the rules and the answer will be yes.

 

2 points to make:

 

1) An outside company would be a good thing. They can work circles around the government and provide a faster service at a lower price.

 

2) For all of those that want to push the law as far as possible (P2P etc.), Mike Cox has provided us with some of the most valuable info yet and he put his name to it!

 

The Michigan Court of Appeals has explained that initiatives should be "liberally construed to effectuate their purposes" and to "facilitate rather than hamper the exercise of reserved rights by the people." Welch Foods v Attorney General, 213 Mich App 459, 461; 540 NW2d 693 (1995).

[+420Atheist]

The Cox opinion seems clear to me. Because name and address would be confidential information no third party can be contracted for any part of the process.

 

But I don't buy that the budget is not there for hiring more people. At 1000 applications per month and $100 an application thats $100,000 per month coming in. If an employee cost $30 per hour (probably more than they really make) that is only $4800 per month. They should be able to afford 15 to 20 employees with no problem. And if this is not the way their budget works then that just shows the real problem with our state gov.

[GreatLakesMeds]

First question: Can the MDCH hire outside folks to do their job? - Yes.

 

Second question: Can the MDCH share confidential information with those outside folks in order to the job we hire them to do? - No, not according to your own MDCH rules. Change the rules and the answer will be yes.

 

2 points to make:

 

1) An outside company would be a good thing. They can work circles around the government and provide a faster service at a lower price.

 

2) For all of those that want to push the law as far as possible (P2P etc.), Mike Cox has provided us with some of the most valuable info yet and he put his name to it!

 

Point #2 - yes I agree 100%. I believe Cox won't give an opinion on items such as p2p transfers because he would have no choice but to agree with what were thinking when we voted!

[HerbanLegendSeeds]

Well then Cox has totally re-confirmed that the Gestapo in Oakland county has broken the law many times over and should be punished according to law. They took all of the medical records without hesitation from the dispensaries. I thought we could make citizens arrests, wonder if that applies to LEO. I can see it now, "Hello officer, do you mind putting your hands behind you back and cuffing yourself, you are under arrest for violating the rules of the MMMA."

[in2it2]

Whoops. Computer is acting up. See below for idiot rant.

[in2it2]

1) An outside company would be a good thing. They can work circles around the government and provide a faster service at a lower price.

 

 

 

"Outside companies" took over the road maintenance on sections of MI highways for a demonstration project and the results were disastrous. They couldn't do the work as cheaply as the State and had to give up. Private companies have "the profit motive". Private prisons are now lobbying for stricter laws and more jail time in order to increase their business. Is this really what you want? I don't want someone trying to make money off me for a service that I have no choice in participating in.

The Health Dept. is underfunded because legislators don't want to "encourage" the use of MJ. They want to make it as inconvenient as possible to get a license. I can't see how privatization would make this any different.

This idea that the private sector can do work better and cheaper than the government is an idea that has been promulgated by conservatives/Republicans because their ultimate agenda is to reduce government to as weak an entity as possible (except for police to enforce punitive laws and courts to increase the prison population) so they will no longer have to worry about expensive regulations like tax laws, environmental laws, zoning restrictions - you know, things that make it more expensive to do business. But do you really want corporations to have free reign to do anything they want? They do. Americans need to take off the blinders and come out from under the fog laid down by corporations (and their legislative "employees")and understand what is really going on when the call for "smaller government" is trumpeted by legislators who are in the back pocket of corporations. Sure, your taxes will go down, but in the long run you will end up paying much more in "service fees" if the private sector is allowed to take over government functions AND you will not have the same level of control over matters that are probably better left in government hands. I personally think that a lot of the problems we are experiencing today are the result of the push for smaller government that has occurred in the last 10-20 years. There is an ulterior motive in the call for smaller government, and that motive doesn't involve looking out for your best interests. We need MORE government to reinstate the checks and balances between citizens, corporations, and OUR legal system.