When Iraq combat veteran Daniel Paul Jabs petitioned the Illinois Department of Public Health in February 2015 to add post-traumatic stress disorder to the approved condition list for medical cannabis, he submitted his military records, five medical journal articles and his diagnosis of the “panic attacks, flashbacks, nightmares, intrusive memories, hyper-sensitivity to light and noise, over reactive startle responses” and other symptoms that make up his particular form of PTSD.
Although the 10-member advisory board voted unanimously to add PTSD to the list, IDPH Director Nirav Dinesh Shah rejected the petition, maintaining “there is not substantial evidence from adequate, well-controlled clinical trials to support the use of cannabis in the setting of post-traumatic stress disorder.”
“Therefore,” Shah wrote, “the safety and efficacy for this medical condition cannot be assured.”
While Jabs turned to the courts and Statehouse legislators worked on their own measure that would add PTSD to Illinois’ list, the question arises of who was playing politics: the judicial and legislative branch officials who overrode a medical finding, or the executive branch appointee who ruled based on what critics charge is more GOP tenet than medical consensus?
Two of Jabs’ lawyers, Michael K. Goldberg and Robert A. Bauerschmidt of Goldberg Law Group LLC, said they believe Shah’s denials of petitions to add various conditions to the list — not just PTSD — have been purely political.
“There are people who have these conditions who really, really need the medical cannabis. They suffer terrible side effects from the controlled substances that they have to take and it’s just sad that the governor’s office puts up road blocks for seemingly no reason,” Goldberg said.
IDPH declined to comment on the department’s procedures regarding petitions, citing ongoing litigation.
‘Invent his own standard’
Jabs sought administrative review in Cook County Circuit Court after Shah’s denial. That case is Jabs v. Ill. Dept. of Public Health, 15 CH 16344.
In his order issued on June 28, 2016, Cook County Associate Judge Neil H. Cohen reversed Shah’s decision, finding the director violated his department’s rules and Jabs’ due process rights.
Cohen wrote Shah added new evidence to the record that wasn’t presented during the hearing.
Jabs “was not given any opportunity to challenge the additional evidence considered by the [d]irector,” Cohen wrote, and he was not even aware Shah considered new evidence until after he filed for administrative review.
Cohen also found Shah applied a standard that “appears nowhere in the [medical cannabis law] or the [d]epartment’s rules.”
Further, Cohen rejected the department’s argument Shah was “entitled to invent his own standard and was not required to use the standard set forth in the department’s rules.”
Cohen found the record “demonstrates unequivocally” that PTSD patients would benefit from medical cannabis, and that Shah arrived at his decision through a “constitutionally inappropriate” process.
Cohen’s order not only reversed Shah’s decision but it directed Shah to add PTSD to the list of qualifying conditions in the law.
By the time Cohen’s order came out, state lawmakers in Springfield had already added the condition. Earlier in the month, the General Assembly had sent Senate Bill 10 for Gov. Bruce Rauner’s signature.
Rauner signed the bill, which was effective immediately, two days after Cohen’s order. The governor got a lot in return.
‘So be it, for the greater good’
The June 2016 amendment extended the pilot program to 2020 and added both PTSD and terminal illnesses to the IDPH list, but in exchange gutted the advisory board’s role and dismissed all the current board members. If it does reconvene, the new board will no longer make recommendations to the director about petitions for new conditions. Instead, petitions are submitted straight to the director, who has 180 days to either approve or deny them.
As of April 2018, the board had not reconvened, and no new members had been appointed to fill the 10 vacancies, IDPH spokeswoman Melaney Arnold said.
State Rep. Louis I. Lang, a Skokie Democrat who helped broker the deal, said the decision was difficult one.
“I didn’t agree to do that lightly. In fact, I met with most of the members of previous Medical Cannabis Advisory Board, and each one of them agreed with me that this director was never going to approve a condition, that they were not accomplishing their goals anyway, and if the price of extending the program to 2020 was neutering the board, then we would have to live with that.”
Dr. Leslie Mendoza Temple, who was the chair of the MCAB before it disbanded, said she agreed to the deal because it was clear to her the board’s recommendations were simply being ignored.
“We said ‘So be it, for the greater good’ and we stepped down without a lot of hubbub,” she said.
The advisory board decided on its first round of petitions in May 2015, and it recommended the addition of 11 new conditions to the approved list. Four months later, Shah announced he was denying all 11.
The board recommended another eight conditions in October 2015, then 11 more in May 2016. But the director, after conducting his own research, didn’t approve any of those conditions either.
Temple said she thinks Shah’s standards for approving new conditions are too stringent and probably impossible to satisfy.
“It’s so hard to wait [for more evidence] when you have a patient in front of you that is suffering greatly, and has exhausted so many avenues of help and hasn’t been able to try this, and they are desperate,” she said. “There is evidence, but what qualifies as good enough evidence?”
Since the advisory board was removed from the petition process in June 2016, the department has received 14 petitions to add new conditions but has not issued any decision, approval or denial on them, according to the IDPH. In some cases, 180 days has passed without a response from the department.
Arnold said in an e-mail that the department has not issued any decisions for those petitions because “[r]eviewing scientific research and studies about conditions and diseases, and the possible pain relieving or treatment options, takes time. The science is not yet clear about the benefits and/or adverse health effects of using medical cannabis.”
Bauerschmidt said he and Goldberg will keep pushing back in the courts. The medical evidence in these cases is overwhelming, he said.
“There is not a legitimate reason for rejecting these, which is what the courts keep telling [Shah],” he said. “This is kind of an usual procedure because they have already approved it for 41 other conditions. This was intended to be fairly lax, just to consider other conditions where it might be beneficial — not to weigh the whole safety and effectiveness of the program all over again … [Shah]’s had a second shot and refuses to follow due process and refuses to follow the rules. It’s futile to keep going back to him.”