PHOENIX -- Calling the fees illegally high, an attorney for a nurses group is asking the Court of Appeals to force state health officials to slash what they charge medical marijuana users for the state-issued permit needed to buy the drug.
Sean Berberian said Monday that patients must pay $150 annually, which is far more than the state Department of Health Services needs to administer the Arizona Medical Marijuana Act--which allows people with certain medical conditions to use the drug. Berberian said that the 2010 voter-approved law makes it clear that the agency cannot simply bank the proceeds.
Berberian said this is more than an administrative bottleneck. He told Capitol Media Services that all the evidence suggests that both Gov. Doug Ducey and predecessor Jan Brewer have directed the agency to keep the fees as high as possible to deter patients from getting the drug.
The attorney also pointed out that the fees are a significant hardship for the people he represents.
The new legal filing comes six months after Maricopa County Superior Court Judge Jo Lynn Gentry rejected similar arguments.
She did not dispute the allegations that the state is collecting far more than it needs. But Gentry said it's not up to her to force the state to lower its costs.
Berberian said he hopes to prove to the Court of Appeals that her ruling is not legally sound.
What appears to be clear however, are the numbers.
Figures obtained by Capitol Media Services show the health department collected $24.9 million in fees from patients, caregivers, dispensary owners, and growers in the last fiscal year. The expenses in that same period were $11.2 million.
So far this budget year the data show revenues of $6.0 million against $2.8 million in expenses.
And as of Monday, health officials said the balance in the account is nearly $38.1 million, more than three times as much as needed to administer the program on an annual basis.
That, said Berberian, is illegal.
The 2010 law allows medical marijuana patients to purchase up to 2 1/2 ounces of the drug every two weeks from state-regulated dispensaries.
But sales can be made only to those with a state-issued medical marijuana ID card. And that card, which has to be renewed annually, costs $150.
Berberian said Lisa Becker, one of his clients, has suffered for years from a series of ailments. He said doctors gave her four different anti-nausea drugs and opiates to manage her pain.
What medical marijuana has done, he said, is calm her nausea, allowing her to eat solid food without vomiting. But he said that Becker, living on $1,100 a month, has had to either borrow money to pay the $150 annual fee or spend less on medications.
The other plaintiff is Yolanda Daniels who is caregiver for her granddaughter, Mercedes, who has epilepsy.
According to Berberian, the marijuana has reduced the child's seizures. But to get the drug she has to pay $350 a year -- $150 for her granddaughter's card and another $200 to be a state-licensed caregiver.
The voter-approved law says that the total amount of all fees "shall generate revenues sufficient to implement and administer this chapter,'' meaning the Arizona Medical Marijuana Act.
"Instead, what the Department of Health Services has done is set a fee structure and refused to reexamine or revisit that fee structure when it's quite obvious that the fees they set are far beyond what is sufficient to implement and administer that chapter,'' he said.
Berberian is not alone in reaching that conclusion.
Will Humble, who was health director when the 2010 measure was approved, told Capitol Media Services he set the $150 fee based on anticipated start-up costs and an assumption that only about 25,000 people would qualify.
As it turned out, that estimate was far too low. The latest report shows more than 143,000 people are currently certified by the state to use the drug.
Berberian has his own theory.
"This is part and parcel of the state's ongoing effort to try to limit Arizonans from getting access to legal medical marijuana,'' he said. "At every turn, the state and our governor has tried to prevent Arizonans from getting access.''
There was no immediate response from the governor's office.