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Med. marijuana lawyer: Health dept. can't deny cards over physician assistants

The Colorado Department of Public Health and Environment has announced that it may deny thousands of medical marijuana applications over questions about whether physician assistants did exams -- a policy CDPHE's Dr. Chris Urbina reiterated in a recent interview. But MMJ lawyer Rob Corry calls the action improper and argues that the department is tossing the applications too late.

The CDPHE put the applications on hold, some for months, after staffers noticed that certain medical marijuana recommendation forms featured signatures of both doctors and physician assistants. If the latter actually performed the examination leading to a recommendation, the department believes this action would violate state law calling for a bona fide relationship between doctors and MMJ patients. If that's proven to be the case, the CDPHE will deem such applications fraudulent and deny them. If there's ambiguity over the question of who did the exam, the applications will be rejected.

This distinction is important. Patients whose applications are denied will have to wait six months to reapply, even if they've already been stuck in limbo for months, due to a clause in Amendment 20, the measure that legalized medical marijuana in Colorado. In contrast, patients whose applications are rejected can reapply right away, and additional fees will be waived.

Why use the term "denied" in some cases and "rejected" in others? Doesn't that punish some patients more severely than others without regard to whether they bear any responsibility or blame for the recommendation form issue? When asked this question, Dr. Urbina insisted that he was following the letter of the law, even though no document we've been able to find explains the distinction between "denied" and "rejected" the CDPHE is using.

For attorney Corry, however, other issues related to the department's policy are equally important. He represents one of the doctors targeted -- Dr. Frank Wright, who received a letter from the department questioning applications and his approach to offering recommendations. In a reply to the CDPHE, Corry takes issue with the department's interpretation. The entire document is on view below, but here's an excerpt pertaining to the double signatures:

Your letter claims the Physician Certification should "be signed by the examining DO or MD, and no one else." (Emphasis added.) There is no requirement in any Constitutional provision, statute, regulation, or policy prohibiting or invalidating a particular form if the physician's advice is bolstered by another professional. If the CDPHE is in fact "charged with maintaining the integrity of the medical marijuana application process," as your letter alleges, then bolstering the M.D.'s advice with that of another licensed professional only furthers that goal, and provides additional protections against incorrect diagnoses or human error. Medical diagnosis is a subjective art as much as a science. There is nothing wrong with a patient receiving a second opinion.

Moreover, Corry argues that state law and the Colorado constitution establish that a doctor's recommendation is as valid as a registration card when it comes to legally acquiring medical marijuana -- and the time it took for the department to act means its attempt to either deny or reject the applications is now null and void. His response addresses this assertion like so:

On information and belief based on communications with numerous patients, none of these applications have been denied by the Registry, so the application "shall be accorded the same legal effect as a registry identification card." Article XVIII § 14(3)(d). Thus all of these applications are now automatically approved by operation of law, without the need of any further action by the Registry. At this point, any denial on the Registry's part would be untimely and without legal effect, given the mandatory requirement that "[w]ithin thirty days of receiving the information referred to in subparagraphs (3) (b) (I)-(IV), the state health agency shall verify medical information contained in the patient's written documentation." Colorado Constitution, Article XVIII § 14(3)(c) (emphasis added).

When asked to summarize his take, Corry says, "The CDPHE has 35 days to deny an application. If it does not deny an application within 35 days, that application is automatically approved under law, and it's too late for the CDPHE to deny it. So I don't think they can deny a single application.

"The application is a registry card -- it's the functional equivalent of one, and the law treats it identically to a registry card. If the CDPHE decides not to issue a registry card, it doesn't matter, because what the patient holds in his hand is the same thing as a registry card. That's why I've advised Dr. Wright to continue practicing medicine full time, since he's under no restrictions."

More on Corry's take below.

Likewise, Corry believes that "a physician's signature on these applications may be joined by another signature. That doesn't in any way invalidate it. In fact, if you really want to believe that the CDPHE is maintaining the integrity of the process -- and many people have varying opinions about that -- then what's wrong with another regulated, licensed professional adding his or her medical opinion to the physician's? It further validates the physician's opinion, it doesn't invalidate it. There's nothing wrong with having a physician assistant involved in the standard practice of medicine, and PAs are involved with much more dangerous, addictive narcotics."

Does the CDPHE's actions, and the punishment being doled out to patients who may not have done anything, suggest that the department's real goal is to shrink the number of people legally allowed to use marijuana, a substance that a percentage of doctors don't see as real medicine?

"It sure looks like that," Corry says. "They've complained for years about the number of applications, and the influx of them, and how they couldn't deal with them. And then there was the notorious ten-month delay in processing them -- although they certainly collected $90 in fees for each of them, and didn't take ten months to deposit the checks. I don't know why they'd want to reduce the rolls, since it's income to the state, but that has been their approach."

Corry admits that dispensaries may not accept a doctor's recommendation in lieu of a red card due to their own policies and standards. For that reason, patients whose applications are denied may want to appeal the decision -- something not mentioned by the CDPHE in its press release about its policy. "Especially if they're being told they'll have to go without their medicine for another six months, they would have no alternative other than to appeal, as is their right, or rely on their doctor's recommendation alone for their medicine -- which has always been the constitutional standard," he allows.

Corry says he has not yet received a reply from the CDPHE in regard to his letter on behalf of Dr. Wright. Here it is:

Response to Colorado Department of Health and Public Environment

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