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From the archives 2022

Top Pa. drug official denies blame for botched medical marijuana guidance, but her claims don’t add up

by Ed Mahon of Spotlight PA |

Jennifer Smith, secretary for the Department of Drug and Alcohol Programs, continues to contend the state’s drug oversight agency was not responsible for confusion that wrongly barred some people from addiction treatment.
Commonwealth Media Services: Natalie Kolb

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HARRISBURG — The leader of a state agency that failed to clarify rules around addiction treatment and medical marijuana — an action that had serious consequences — continued to deny blame while speaking before state lawmakers this month.

Jennifer Smith, secretary for the Department of Drug and Alcohol Programs, also doubled down on an explanation that shifted responsibility to the federal government and county officials — without acknowledging that both federal and county officials dispute her claims.

“I thought her response was totally inadequate,” state Rep. John Lawrence (R., Chester) told Spotlight PA, after questioning Smith.

A series of investigative stories by Spotlight PA last year revealed that state officials failed to clarify federal rules around addiction treatment funding and medical marijuana use, sowing widespread confusion among workers on the front line of Pennsylvania’s opioid epidemic. In one case, a 24-year-old Bucks County man, Tyler Cordeiro, was wrongly denied opioid addiction treatment funding and died from a drug overdose a few weeks later.

A month after Spotlight PA’s first investigation, the federal government changed its policy, eliminating the language that caused the most confusion. Under the new guidance, money from the federal Substance Abuse and Mental Health Services Administration “may not be used to purchase, prescribe, or provide marijuana or treatment using marijuana.” But the language makes it clear that federal money can fund addiction treatment and other services for people who happen to use marijuana.

During a March 3 budget hearing, Lawrence read from Spotlight PA’s coverage for nearly three minutes.

“I want to know why DDAP sat on this federal guidance for 17 months and didn’t share it with other state and county agencies,” Lawrence told Smith.

“Thank you for asking that question,” Smith replied, “and for giving me the opportunity to set the record straight based on perhaps some inaccuracies or misleading … reporting by Spotlight PA.”

She did not specify what she considered inaccurate or misleading about the reporting. Prior to publishing its investigations, Spotlight PA shared detailed questions and findings with her agency.

Smith acknowledged that the department received clarifying information from the federal Substance Abuse and Mental Health Services Administration in a January 2020 email — 17 months before her department shared the guidance. But she claimed her agency was not given “permission to distribute that information beyond the attendees of the call, which was restricted to one individual from each state.”

Emails obtained by Spotlight PA show a federal official invited the Department of Drug and Alcohol Programs’ deputy secretary to a Q&A session “on the marijuana language” and other issues in November 2019.

The federal agency then sent written clarification to the department on Jan. 1, 2020, emails show. A spokesperson for the federal agency previously said it shared the written guidance with Smith’s department and similar agencies that coordinate addiction treatment services in other states.

In neither the November 2019 nor January 2020 emails did the federal agency say state officials could not share the information with other agencies. The Department of Drug and Alcohol Programs’ press office did not provide or point to other emails or documents to substantiate Smith’s claim that the department was not allowed to distribute the information.

And federal officials have insisted they considered the January 2020 email a formal communication that the Department of Drug and Alcohol Programs had the authority to share.

“SAMHSA wanted to make sure states knew how SAMHSA funding could and could not be used,” a spokesperson for the federal agency told Spotlight PA in September.

At least one other state provided additional guidance to its providers. The Oregon Health Authority released public guidance dated Nov. 18, 2019 — days after the scheduled phone call with SAMHSA — that clarified the medical marijuana funding issue and noted there was flexibility.

“Like all other states, [Oregon Health Authority] consulted with SAMHSA to clarify and understand the new special conditions and shared that information with Oregon providers,”Aria Seligmann, an agency spokesperson, told Spotlight PA in an email.

Smith also told lawmakers that her department encouraged county drug and alcohol offices to reach out directly to the federal government to clarify the issue — an account that leaders of those offices have disputed. That was a recent change, they told Spotlight PA in September.

And the department’s own records cast doubt on Smith’s statements that her agency consistently referred medical marijuana questions to the federal government.

Email exchanges in March and April of last year, for instance, show officials with Delaware County’s drug and alcohol office asking for and receiving guidance from Smith’s agency before a local nonprofit added medical marijuana restrictions to a participant agreement. An official with the Delaware County nonprofit lifted the restrictions after speaking with a Spotlight PA reporter in September.

A DDAP spokesperson, Stephany Dugan, declined to comment on the exchange between the department and Delaware County. Dugan offered two examples of when the department directed questions to the federal government. Both emails were from August 2021 — 19 months after SAMHSA first shared its written clarification.

By that point, Spotlight PA had already reported on the consequences of the department’s failure to share the guidance, and the federal government had changed its policy.

Conflicting messages

Susan Ousterman, mother of the Bucks County man who was wrongly denied addiction treatment funding, called Smith’s response to Lawrence’s questions “somewhat infuriating.”

“Like I had said from the beginning, you can’t correct something if you don’t acknowledge that there was a problem,” Ousterman told Spotlight PA. “And they still haven’t acknowledged that anything was … done wrong.”

Ousterman reached out to state officials with concerns about her son’s case and access to addiction treatment in early 2021 and stayed in touch with them for months. She also raised concerns about the accuracy of a state advertising campaign that promises to get everyone into treatment regardless of their access to insurance.

Emails Spotlight PA obtained through Right-to-Know requests show widespread confusion and conflicting messages over what counties should do.

Jodi Skiles, a bureau director for the department, defended the advertising campaign in an email to Ousterman in late May, telling her that county drug and alcohol offices develop their policies based on the department’s rules.

“And, our requirement is to fund the uninsured and underinsured with the State and Federal money that we allocate to each SCA,” Skiles wrote, referring to the offices. “They also have a local match.”

But many counties believed federal money was off limits if patients used medical marijuana for mental health or substance use issues. And workers in some counties took the restriction further, operating as though all money from county drug and alcohol offices was off limits to people with a medical marijuana card for those reasons, Spotlight PA found.

Skiles’ statements to Ousterman in May 2021 also conflict with later ones by Smith. Smith told Spotlight PA in August that it was up to the counties to decide what funding they felt comfortable using.

Despite Smith’s public challenge to Spotlight PA reporting, internal emails show the news organization’s investigations prompted changes.

After Spotlight’s first story published in June, the department’s communications director, Ali Gantz, wrote to colleagues that “this piece is doing more harm than good by potentially holding people back from calling the hotline and/or seeking help if they receive MMJ.”

But Gantz also suggested updating information in the department manuals to “provide further clarification,” which the department later did. And Jennifer Newell, another bureau director, suggested clarifying with county drug and alcohol offices when they could use state money to assist people, saying there “seemed to be some confusion around that.”

Emails show the federal agency emailed Department of Drug and Alcohol Programs officials on July 30, informing them that the federal government was updating its policy and removing the language that caused the most confusion.

“FYI — Sounds like we need to get this out to the field or Spotlight will be all over us for not communicating the change,” Smith wrote to others in her department on Aug. 2, shortly after 8 a.m.

The department sent out a bulletin hours later, notifying drug and alcohol offices, providers, and the public about the change.

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