Marijuana symbol with legal text in neon lights. (Carol Yepes/Getty Images)

Lawmakers want to make it more difficult to expand the list of conditions that might qualify a citizen for a medical marijuana card.

South Dakota’s voter-backed medical marijuana statute includes a clause that allows patients to petition the state Department of Health (DOH) to add “debilitating” medical conditions to the list of ailments treatable by cannabis.

To add a condition, patients need to define the condition, cite peer-reviewed research showing that the condition is better treated by cannabis than by traditional medicine, and submit two letters of support from medical practitioners. The DOH then has 180 days to make a determination.

A legislative summer study committee, however, decided that the petitioning clause was too heavy a lift for the DOH. 

“The Department of Health does not have a health care provider that is able to take these petitions from the general public and determine how to add these into the law,” said Rep. Erin Tobin, who led the interim marijuana study group and presented its findings to the Legislature’s executive board on Tuesday.

Patients who want relief for conditions not explicitly listed in the law ought to ask their elected lawmaker to add the condition for them during the legislative session. 

The frequency of petitions for new conditions is unclear and was not presented during the Tuesday meeting in Pierre. The DOH did not immediately respond to a request for the number of petitions filed. After the initial publication of the news on the proposed law change, DOH spokesperson Kieran Tate told South Dakota Searchlight that six petitions have been filed in total. Just three were complete, however, leaving three others under review.

The proposed language of the bill that would remove petition rights also adds several additional qualifying conditions: AIDS, Amyotrophic lateral sclerosis, multiple sclerosis, cancer or its treatment (if treatment causes chronic pain, nausea, vomiting, cachexia or severe wasting), Crohn’s disease, epilepsy, glaucoma and post-traumatic stress disorder.

‘Pop-up shops’ could be scrutinized

Tobin also told the board that the members of her summer study group are concerned about the mobile “pop-up” clinics that offer consultations for medical marijuana cards across the state.

In contrast to the petitioning issue, the group did not craft legislation to address mobile practitioners.

Even so, Tobin told the board that the doctors are skirting the spirit of the law. The statute is meant to allow the practitioners willing to prescribe cannabis — 177 as of last month — to do so as part of a normal course of treatment. Doctors who see patients once at a “card clinic” before signing off on a cannabis card don’t have the existing doctor-patient relationship the medical cannabis statute envisioned, she said. 

“Basically, there has to be a referral from a practitioner that’s treating a debilitating medical condition to a card clinic per se, to be able to take over that task,” Tobin said. “And I don’t know that that is happening.”

There were 14 such pop-up shops identified so far, Tobin told the committee. As of last month, there were 4,852 card holders in South Dakota.

Tobin encouraged lawmakers to consider legal language to curtail the shops in the next session, although there was some debate over whether the shops flout the law’s intent or serve legitimate patient needs. The rapid rise in card holders over the summer coincided with the proliferation of pop-up shops.

Melissa Mentele, a medical cannabis patient, told the summer study last month that people use the pop-up shops because the state’s major health systems won’t help patients obtain cards.

“I know it leaves the door wide open. But that wide-open door is the only way a lot of patients are getting access. And it’s unfortunate,” Mentele said. “We have a program that is very good, but is being tossed out the door because health care systems are not following it.”

Health systems: Pot decisions up to doctors, patients

The health systems’ official positions do not prohibit cannabis prescriptions. Avera Health practitioners are free to offer it as an option, according to spokesperson Cale Feller.

“Avera believes in the practitioner-patient relationship, and supports each physician or advanced practice provider in using their clinical judgment to decide what is best for each individual patient. Avera stands behind each practitioner’s decision to certify or not certify,” Feller said in a written statement.

Feller declined to say whether any of the 177 cannabis-prescribing providers noted on the DOH website work for Avera, or whether any of the 4,852 cards originated with Avera.

Monument Health, the major health care provider for Rapid City and the surrounding area, also leaves decisions in the hands of its practitioners, according to spokesperson Stephany Chalbert. Like Avera, Monument does not disclose whether its providers are authorized by the state to prescribe cannabis. Dr. Jeremy Cauwels, chief physician at Sanford Health, had a similar response, saying only that the system does not endorse or oppose medical cannabis use.

Tobin: Health systems should work with state

Differing approaches from the three major medical systems was a discussion topic for the summer study group, as well, Tobin said this week, although she did not elaborate on those approaches in her presentation to the executive board.

“Some systems are better than others in the way they’ve approached this, but I think we also need to ask health care systems to provide more education to practitioners,” Tobin said. “We worked with them very well in the last two sessions so that we could develop legislation that was easy for providers. Now we need them to work with us so that we can treat patients to the best of our ability as providers, and serve the public as legislators.”

The cannabis recommendations from the medical marijuana study group weren’t all related to tighter restrictions or provider clarity, however. The group’s official report recommends that lawmakers work to ease access to medical cannabis for veterans.

“The (VA) health care system does not allow for a process directly from the health care system to the Department of Health (for medical cannabis),” Tobin said. “And there’s really no clear cut way forward.”

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