“I believe it is another direct and intentional step that they are taking to absolutely destroy patient access to medical cannabis.”
By Zach Wendling, Nebraska Examiner
It’s unclear what requirements the state commission to regulate medical cannabis in Nebraska might enact to license such operations by this fall, ahead of a deadline next week for detailing the criteria for applications.
The Nebraska Medical Cannabis Commission has until July 1 to write licensing criteria under state law. But as commissioners gear up for their next meeting Thursday, the first with all five commissioners, they have indicated they will consider adopting draft or emergency criteria to accept or deny licensing applications after July 1.
Licensing must begin by October 1, the same time any other requirements for medical cannabis must be enacted, according to a pair of laws that voters overwhelmingly approved in a pair of November ballot measures.
However, with just hours until the next commission meeting, there is no specific indication of what criteria the board will consider.
Also on the agenda is a legal “memorandum of agreement” to help with future rulemaking involving the Nebraska Department of Health and Human Services (DHHS) and Gov. Jim Pillen’s (R) Policy Research Office, the policy lobbying arm of the state’s chief executive.
No draft rules or regulations, including licensing criteria, have yet been made public.
Crista Eggers, executive director of Nebraskans for Medical Marijuana, which has led medical cannabis ballot measures since 2020, said she’s faced a lack of transparency and been unable to reach the commission or have questions answered in recent weeks, leaving many advocates “extremely frustrated.”
“I didn’t know we could be more frustrated than what we have been previously, but there just seems to be a new layer added every single day,” Eggers said Tuesday.
A legal ‘memorandum of agreement’
Final regulations can’t be approved this week because state law requires 30 days of notice before a public hearing on proposed guidelines. If there are no major changes after that, and the commission approves the guidelines, the governor and Attorney General Mike Hilgers (R) would have final say.
A copy of the proposed “memorandum of agreement” obtained by the Nebraska Examiner indicates that the commission will consider contracting with DHHS for “legal services,” such as providing research, administration and enforcement of commission duties. It could also recommend draft legislation or policies, advise on legal impacts and participate in the rulemaking process.
DHHS CEO Steve Corsi, Policy Research Director Kenny Zoeller and Dr. Monica Oldenburg, who chairs the Medical Cannabis Commission, would enter the agreement if adopted Thursday.
Oldenburg did not respond to a request for comment ahead of the meeting.
The Attorney General’s Office has already pledged to sue the Medical Cannabis Commission if and when it begins medical cannabis licensing. Office spokesperson Suzanne Gage said Tuesday that the office will provide legal support and guidance to the Medical Cannabis Commission, as it does to other agencies and commissions.
The commissioners are already being sued by a former state senator alleging that the Nebraska laws violate federal law that classifies marijuana as a Schedule I drug that has a high potential for abuse and “no currently accepted medical use.”
Pillen and Corsi, as well as Eggers and other ballot sponsors, are among those named in that lawsuit. A Lancaster County District Court judge is considering whether to dismiss the case.
DHHS: ‘Cannabis is not a medication’
The ballot measure that Eggers’s organization led through November 2024 was designed to sidestep DHHS, because officials of the state health agency have “adamantly” opposed legalization over many years. That includes March, when DHHS again opposed legislation, led by Republican State Sen. Ben Hansen of Blair and supported by Eggers and other longtime advocates, to help clarify the process for implementing the ballot initiatives.
Dr. Roger Donovick, executive medical officer for DHHS, said at a March legislative hearing: “DHHS maintains that cannabis is not a medication and does not agree with its legalization.”
Under the ballot measures, any health care practitioner can recommend that patients or caregivers legally possess up to five ounces of medical cannabis. Cannabis can’t yet be legally purchased in Nebraska, and some advocates have turned to health care providers in neighboring states for authorization.
Eggers said the legal memorandum would give “almost full authority” to DHHS to take over the rulemaking, which the campaign never intended and which voters never considered.
Instead, voters legalized medical cannabis and created the five-member Nebraska Medical Cannabis Commission, made up of three governor-appointed members of the Nebraska Liquor Control Commission and up to two more members also appointed by the governor.
Eggers said that was because the Liquor Control Commission has had a good track record of regulation and has valued the necessity of safeguards and of providing guidance to law enforcement.
“I believe it is another direct and intentional step that they are taking to absolutely destroy patient access to medical cannabis,” Eggers said of involving DHHS.
‘Another gut punch’
A DHHS spokesperson confirmed Tuesday that the agency has neither issued any guidance related to medical cannabis nor received any complaints against physicians related to the new laws since they took effect in mid-December.
“DHHS will adhere to state statute and follow regulations and licensing processes implemented by the Nebraska Cannabis Commission,” said Jeff Powell, DHHS director of communications.
Eggers said DHHS, however, has looked at cannabis as a “farce.” She laid the blame for the confusion and lack of transparency at the feet of Hilgers and Pillen. Hilgers led opposition to the most recent legislative bill that advocates rallied behind. It fell 10 votes short last month.
“Talk about another gut punch to the people of this state,” Eggers said. “And the ultimate gut punch is to the patients that are waiting at home, that have hope that on Thursday we are one step closer to access, but what I think we see rolling out here is that the day that they receive access is getting farther and farther and farther away.”
Some lawmakers who backed the hands-off legislative recommendation from Hilgers, as well as U.S. Sen. Pete Ricketts (R-NE), a former governor, did so partly because they first wanted to see what the Medical Cannabis Commission would do.
A separate legislative attempt to shield physicians from possible civil, criminal or professional liability from recommending medical cannabis also failed last month.
Public comment desired
Eggers said she understands patients and advocates are tired and may feel as though their voices aren’t being heard, but she said families, loved ones, neighbors and children still need Nebraskans to get loud and show up.
She said Nebraskans have a right and a duty to be part of the process. Commissioners have said they want to hear from the public, too.
“At some point, I do believe that lawmakers and state officials who are doing everything in their power to stand in the way of this and to ignore the voice of the people, to stand in the way of the will of the people, I do believe they lose at some point,” Eggers said. “But at this point, they’re winning, and Nebraskans should be absolutely disgusted…with how this is being handled.”
The Medical Cannabis Commission will meet at 10 a.m. Thursday in the first-floor hearing room of the Nebraska State Office Building in Lincoln, 301 Centennial Mall South.
Commissioners at their first meeting June 9 preliminarily approved public comment periods of up to one hour and three minutes per speaker, though a majority of the commission can change how the public participates. Written comments can be submitted to [email protected].
This story was first published by Nebraska Examiner.
Photo courtesy of Philip Steffan.
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