DHSS Reverses Course on Releasing Denied Applicant Scoring Sheets

The Missouri Department of Health and Senior Services (“ DHSS”) appears to have reversed its position on releasing the scoring sheets of applicants who were denied cultivation licenses. Because the DHSS has broad authority to issue additional licenses to settle appeals, many denied applicants are planning on appealing their denial. Article XIV, Section 1.3(23) of the Missouri Constitution and 19 CSR 30-95.025(6)(A)1 provide that all denials of medical marijuana facility licenses shall be appealable first to the Missouri Administrative Hearing Commission, and then subject to judicial review following exhaustion of administrative remedies.

Earlier this week, the DHSS indicated that they would not provide denied applicants a scoring breakdown for their applications or any other file materials in the absence of an appeal to the AHC (or possibly an open records request). However, the DHSS has now reversed course, and has indicated that it is working to convert the scoring sheets into a format that can be shared with applicants. The DHSS indicated that there would be an announcement on their website when the scoring sheets are available.

Obviously having an applicant’s scoring breakdown is the most important information to have in evaluating whether or not to appeal, but it is not the only thing. Among other things applicants may want to request the scoring breakdown of other applications, in order to determine if there are similar answers that were scored dramatically differently. In addition, applicants may want to request a variety of internal DHSS correspondence and documents. It certainly appears that the DHSS will not be providing those things without either a discovery request in an AHC appeal or an open records request.

This post is for informational purposes only, and each applicant’s situation is different. But it may make sense for denied applicants to file an appeal to the AHC and serve document requests on the DHSS, regardless of what their own scoring sheet shows. It is generally relatively easy to draft and file an AHC complaint, and the documents produced in response to the requests for production would allow applicants to make an educated determination of their chances of success, at which point they can decide how to proceed accordingly.

–Jon Dedon, Kennyhertz Perry, LLC

About Kennyhertz Perry’s Medical Marijuana Practice Group

Kennyhertz Perry advises clients on a wide range of medical marijuana compliance and regulatory matters. Kennyhertz Perry attorney Jon Dedon is a former appellate litigator at an AmLaw-100 law firm, and has litigated numerous appeals before the Missouri Administrative Hearing Commission. In addition, he has assisted numerous groups submit medical marijuana license applications in Missouri.

Kennyhertz Perry partner Braden Perry spent time as a Senior Trial Attorney with the Commodity Futures Trading Commission and is an experienced regulatory litigator matters.

Kennyhertz Perry attorney Ben Tompkins is a former federal prosecutor in Los Angeles as well as a former Trial Attorney for the U.S. Department of Justice Tax Division. As such, he is well acquainted with high-stakes litigation.

Kennyhertz Perry partner John Kennyhertz is former in-house counsel at a private equity firm, and has structured transactions for very small and very large clients alike. He has substantial experience in highly-regulated industries such as online lending, and industries with rapidly-evolving regulations, such as cryptocurrency. He provides medical marijuana operational and compliance counseling, and offers advice on appropriate modifications of transaction structure and documentation.

Kennyhertz Perry attorney Arthur Chaykin is a former law school professor and head of litigation at Sprint. He is an expert on intellectual property law, and devises creative solutions to protect client’s IP in the medical marijuana industry, even when certain federal protections are unavailable.

Kennyhertz Perry attorney Jeff Donoho is an expert in small business formation and government compliance. His knowledge of the labyrinthine medical marijuana application process helps him provide detailed guidance to clients.

Kennyhertz Perry attorney Mit Winter is a former partner at an AmLaw 100 law firm. An expert litigator, his skill in anticipating issues before they become serious problems is valuable to all clients, and particularly those in the medical marijuana industry. In addition, his skill as a writer makes him a valuable asset to our application writing team.

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