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Another judge rules that IDPH director violated due process rights

Thursday, Jul 28, 2016

* This is the third time a judge has done something like this in just the past month

A Cook County judge today ordered the head of the state health department to reconsider adding irritable bowel syndrome to the list of conditions eligible for treatment with medical marijuana.

Circuit Judge Anna Helen Demacopoulos ruled that Illinois Department of Public Health Director Nirav D. Shah violated procedural due process rights when he used his own review standard to deny the Medical Cannabis Advisory Board’s recommendation to add IBS to the list.

Beyond that, Demacopoulos ruled, the controlling statute and guidelines that govern Illinois’ medical marijuana program are silent regarding what kind of standard the director can use when issuing final decisions based on board recommendations.

“There is no IDPH rule, nor is there any language in the [Compassionate Use of Medical Cannabis Pilot Program] Act, empowering the [d]irector to conduct his own investigation or add materials to the record that were not considered at the hearing,” Demacopoulos wrote in her nine-page memorandum and order.

While it appears Shah employed a standard to consider evidence from “adequate, well controlled clinical trials,” Demacopoulos ruled, it’s a standard the plaintiff did not have a chance to challenge before a decision was made.

“The [d]irector’s supplying of evidence post-hearing indicates demonstrable prejudice to the plaintiff and therefore serves as a basis for reversal,” she wrote.

- Posted by Rich Miller        

  1. - Homer J. Quinn - Thursday, Jul 28, 16 @ 10:00 am:

    get him out, if he thinks his personal biases are above the law.

  2. - Ghost - Thursday, Jul 28, 16 @ 10:08 am:

    Why the ridiculous lockdown on canabis? they prescribe norco!! for IBS without restriction. where are the dept rules listing medical conditions for which it prescribing narcotics is not allowed??? this idea that highly addictive narcatic meds are untestricted in the conditions for which they can be prescribed while less addictive canabis can not be prescribed defies logic.

  3. - illinoised - Thursday, Jul 28, 16 @ 10:18 am:

    I have IBS. My internist told me the best thing he could prescribe me, marijuana, is not allowed. I hate the medicine I currently use.

  4. - Norseman - Thursday, Jul 28, 16 @ 10:19 am:

    I’m putting on my tinfoil hat. I can’t help but suspect that the frat boys told him to deny these additions. They don’t want to see an expansion of the program.

    If I’m wrong, then the Director is being poorly served by his legal counsel.

  5. - 100 miles west - Thursday, Jul 28, 16 @ 10:21 am:

    There are many article about the reduction in scripts written in states with medical marijuana programs. Fewer pills sold means less money for the medical industrial complex.

  6. - Louis G. Atsaves - Thursday, Jul 28, 16 @ 10:23 am:

    ” . . . the controlling statute and guidelines that govern Illinois’ medical marijuana program are silent regarding what kind of standard the director can use when issuing final decisions based on board recommendations.”

    Give the man little or no legislative guidance, then pound on him over every decision made.

    Legislating and rule making by judicial fiat, now times three.

  7. - Demoralized - Thursday, Jul 28, 16 @ 10:59 am:


    The judge noted the lack of guidance. The ruling criticized him for using his own standard and then not providing any avenue to review his standards and for anyone to appeal his decision.

  8. - Morgan County - Thursday, Jul 28, 16 @ 11:05 am:

    Just go ahead and legalize it.

  9. - frisbee - Thursday, Jul 28, 16 @ 11:31 am:

    Legalize it, tax it, regulate it. Let the current medical businesses get a few years to make their money back and then some for being first movers but open up the doors for entrepreneurs who don’t have 6 or 7 figures to become the job creators for this cottage industry.

  10. - Norseman - Thursday, Jul 28, 16 @ 12:05 pm:

    Upon closer review of the issue, this portion of the law is poorly written. Following is the pertinent section:

    (410 ILCS 130/45)
    (Section scheduled to be repealed on January 1, 2018)
    Sec. 45. Addition of debilitating medical conditions. Any citizen may petition the Department of Public Health to add debilitating conditions or treatments to the list of debilitating medical conditions listed in subsection (h) of Section 10. The Department of Public Health shall consider petitions in the manner required by Department rule, including public notice and hearing. The Department shall approve or deny a petition within 180 days of its submission, and, upon approval, shall proceed to add that condition by rule in accordance with the Administrative Procedure Act. The approval or denial of any petition is a final decision of the Department, subject to judicial review. Jurisdiction and venue are vested in the Circuit Court. (emphasis added)

    Not only does it not provide no guidance on additions, most laws provide that decisions are subject to administrative review before being taken to the courts. So the director’s decision can be appealed administratively which would allow an aggrieved party to submit further information. From my reading, this law takes away that process and takes it direct to the courts.

    The rules provide for an extensive reveiw process with the addition of an advisory board. It requires the submission of extensive information by a petitioner and a review process by an advisory committee. The committee then makes a recommendation according to the following provision of the rule:

    The written report of findings shall include a medical justification for the recommendation based upon the individual or collective expertise of the Advisory Board membership. The medical justification shall delineate between the findings of fact made by the Advisory Board and scientific conclusions of evidence-based medical research.

    That the director, a physician, finds the recommendation to be deficient based upon his own expertise and research into the issue is not unreasonable. Without seeing the briefs or the opinions, I don’t know what was argued but I suspect it refers to the point that the director’s decision by statute is appealable only to the court.

    Basically, simplify the process by legalizing and taxing. We need the revenue and we need the ganja to try and get through the Rauner era of incompetence.

    If not, then revise the statute to provide guidance and change the review process.

  11. - Norseman - Thursday, Jul 28, 16 @ 12:06 pm:

    “does it not provide guidance”

  12. - Ghost - Thursday, Jul 28, 16 @ 12:46 pm:

    Norseman and Astaves BUT due process is not remotely vague. you can not add secret evidence after the cas has been heard and think it is legit….

    Not even remotely vague. On top of that he did not give the parties an opportunity to address the new evidence he introduced for the first time afyer the evidentiary hearing. this is not vaguely acceptable. unless your aiming for kafkaesque society

  13. - Norseman - Thursday, Jul 28, 16 @ 1:10 pm:

    Ghost, we’re normally on the same wavelength, but you’re letting your emotions run a little bit.

    They did get their due process. The law said go to court, they went to court and won. “Secret,” don’t be dramatic. There was nothing that specifically prevented the director from researching and discussing additional information. The court put it’s two cents in saying there should be a better process. They need to deal with it. No big conspiracy here. Poor legislative work, but no conspiracy.

  14. - tired and retired - Thursday, Jul 28, 16 @ 4:17 pm:

    Basic principles of due process require that the litigants get the opportunity to know what evidence is being presented so that they can respond. A tribunal is not permitted to consider evidence that was not presented at a time the parties had the opportunity to respond. The fact that they had a review process available to them to overturn the Director’s personal after the fact investigation is not the due process that they were denied. Very basic principles of due process in fact prohibit the director from conducting his own, independent after the fact investigation.

  15. - Nobody - Thursday, Jul 28, 16 @ 8:39 pm:

    There are six of these cases about conditions. Buckle up…

  16. - Lynn S. - Friday, Jul 29, 16 @ 1:10 am:

    Hasn’t the director lost 3 of those 6 cases filed so far? Wouldn’t it perhaps be more prudent to make a statement deciding in favor of the parties he discriminated against, change the pot laws, and ask that the suits be withdrawn?

    But I’m just a girl, and not a lawyer or a doctor, so what do I know? (shrugs shoulders, considers walking away…)

Sorry, comments for this post are now closed.

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