Utah officials are reworking how to distribute medical marijuana amid concerns that current plans to use county health departments as pickup points might violate federal law and essentially make local government employees drug dealers.

Senate Majority Leader Evan Vickers, R-Cedar City, said Tuesday that state leaders have been hearing those concerns for months so they have been exploring alternatives — and may seek a special session of the Legislature to enact changes. He said because officials are still discussing several options and ideas are fluid, he is not yet ready to talk about them publicly.

“I think we’re pretty close to having a solution that would minimize if not eliminate risk for the local health departments,” he said. Some possible solutions would entirely avoid involvement by counties, while others would alter their proposed roles.

Utah’s law only allows for seven private “cannabis pharmacies,” with a state “central fill pharmacy” handling the remainder of the distribution by delivering marijuana orders to local health departments for pickup by patients. Only that state-run pharmacy is affected by prosecutors’ concerns.

Voters approved Proposition 2 last year to legalize medical marijuana in Utah and use a network of private dispensaries. However, the Legislature overrode that — and came up with a compromise distribution system — in a bill known as the Utah Medical Cannabis Act. This system included some use of county health departments as cannabis pickup points from a central fill location.

The Utah Department of Health said Tuesday in a statement that it is also aware of concerns from prosecutors, adding that it would work with counties, lawmakers and the governor’s office “to find solutions that will ensure patients statewide have access to medical cannabis within the timeline set out in the Medical Cannabis Act."

Vickers said it may be ideal to have a special session of the Legislature to discuss and enact changes well before a state-run dispensary is expected to be up and running by April. If Gov. Gary Herbert decides to call such a session, Vickers said preferences would then be made public and public comments would be sought.

“Myself and everybody that’s involved in this project want to make sure that patients are able to receive cannabis medication in medicinal form delivered through medical professionals as soon as possible,” Vickers said.

While Vickers said state leaders have heard from counties about concerns for months and have been negotiating changes, two leaders made those concerns public this week — Salt Lake County District Attorney Sim Gill and Davis County Attorney Troy Rawlings.

Gill said in an interview Tuesday that he knew nine months ago when the Legislature replaced Prop 2 that the system created “puts us in direct conflict with federal law,” would not allow the county or its health department to certify that they comply with federal laws — something needed for federal grants..

“That puts millions and millions of dollars in grants at risk,” he said. Also as an attorney, “we cannot knowingly advise a client to violate the law.”

(Rick Egan | The Salt Lake Tribune) Salt Lake County District Attorney Sim Gill on Tuesday, July 30, 2019.
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Gill said after discussing the problem with leaders of counties, they approached Vickers as sponsor of the bill that replaced Prop 2 and other leaders. “To my surprise, they were open to the concerns we were raising — especially Sen. Vickers. He has listened to our concerns.”

Gill said he has been told preliminarily that “counties are probably not going to be part of the equation. That allows me to do my job to my health department, to my county and my taxpayers and say we wll not take this unnecessary risk and at the same time affirm the commitment of unfettered access by the patients” to cannabis.

Connor Boyack, president of the Libertas Institute of Utah and a key player in negotiations between lawmakers, advocates and opponents of Prop. 2 for a new medical cannabis bill, said no matter what happens with the ongoing negotiations, there is “zero potential to undermine the overall program.”

“What’s happening now, the unwillingness of the counties to comply, the legal concerns about having the state directly being involved in violating federal law — these are all concerns that we raised during the negotiation. We went in to this with eyes wide open. None of this is a surprise for us,” Boyack said. “And in fact we’ve been discussing this for a few months now with most of the same stakeholders and folks involved in this to come up with some alternative.”

Boyack declined to elaborate on those alternatives because decisions hadn’t been finalized, but said he’d been discussing options that were “more patient- and more market-friendly.”

Also, written into the medical cannabis law is a failsafe that would allow for additional privately owned dispensaries to open if the “central fill” location — the state-run facility and subject of prosecutors’ concerns — never opened or if it closed, Boyack said.

The first of those locations — and what would be the eighth dispensary in Utah — could open January 2021 if the central fill pharmacy isn’t operational. A ninth could open six months later if the central fill location still isn’t open. A tenth could open in January 2022 if the central fill pharmacy still isn’t running.

(Rick Egan | Tribune file photo) Sen. Evan Vickers on March 12, 2019.

Desiree Hennessy, director of the Utah Patients Coalition that pushed Prop 2, said her group is grateful that lawmakers “have been having discussions and are willing to fix problems” with distribution.

“The most important thing is we are always advocating for patient access,” and plans that will provide that. She adds her group had raised concerns about the central-fill facility plan and is grateful now that “we have legislative leaders who are willing to find a way that will work.”

She adds, as a suggestion, “We don’t think government should ever compete with private industry,” and says using a network of private facilities would work.

(Rick Bowmer | AP file photo) Desiree Hennessy attends to her adopted son Hestevan, who has Cerebral Palsy and suffers from chronic nerve pain, seizure disorder, during the Utah Patients Coalition news conference, in Salt Lake City in 2017.

House Democratic leaders also issued a statement criticizing Republicans for changing the initial Prop 2 plans.

“Legislative leadership told Utah that Proposition 2 — Medical Cannabis, which the voters passed, needed to be replaced because it would not function. Now it looks like their replacement plan also will not function," it said.

"The Legislature cannot override the will of the voters with failed plans, like they also did with Proposition 3 — Medicaid Expansion, and hope to maintain any kind of trust with the people we are supposed to represent,” it added.