The Colorado Department of Public Health and Environment's rejection of nearly 2,000 medical marijuana patients' licenses prompted talk of potential lawsuits from MMJ advocacy groups. But the dynamic changed at yesterday's meeting of the CDPHE's medical marijuana advisory committee, when the department temporarily backed off its earlier pronouncement.
According to CDPHE spokesman Mark Salley, approximately 1,800 applications dating back to the early part of 2010 were rejected beginning late last month because the doctors who issued the recommendations had either a restriction or a condition on their license. Of that total, around 1,300 recommendations were penned by physicians with conditions on their license, with the additional 500 coming from docs sporting restricted licenses.
Salley says letters will be sent to the former group of 1,300 over the next several days informing them that their denials will be set aside until the health department formally puts a new policy in place -- something that probably won't happen until meetings in March, with additional delays possible. However, no letters will be sent to 500 patients whose recommendations were written by doctors with restricted licenses.
The roots of the controversy can be traced to Amendment 20, the 2000 measure that legalized medical marijuana in Colorado. In the measure, a physician allowed to recommend MMJ is described as "a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado." But Senate Bill 109, a piece of legislation intended to clarify the relationship between doctors and medical marijuana patients, which became law in June, tweaked this definition, stating that a doctor in good standing must hold "a valid, unrestricted license to practice medicine in Colorado."
As pointed out in a letter on view below from the Colorado Medical Society, which was represented at yesterday's meeting, restrictions and conditions aren't synonymous terms -- and they can be applied in a slew of ways. For instance, a surgeon who's developed arthritis might be restricted from performing operations, but he can continue to practice medicine in other areas. In addition, conditions may be placed on the licenses of doctors with suspect patient communication skills or a range of other flaws deemed to require correction. But in most cases, physicians with either restrictions or conditions can continue to practice and write prescriptions for Oxycontin and the heaviest of narcotics.
Nonetheless, the health department recently began sending rejection notices to patients whose recommendations had been written by doctors with license restrictions and conditions -- and there were plenty of them, since staffers began setting aside such packages around February, months before SB 109 was signed. However, the department didn't contact the eighteen doctors in Colorado affected by the change. Physicians like Dr. Janet Dean, who has a condition on her license, found out when confronted by angry patients, some of whom accused her of fraud and more.
Dean shared her story during a public-comments portion of yesterday's advisory board meeting, as did Josh Kappel, outreach director for Sensible Colorado, a marijuana advocacy organization that had been part of a previous court action against the health department; last year, a judge took the agency to task for changing its policy toward MMJ caregivers without providing adequate public notice.
Both Dean and Kappel suspect that the department had already decided to alter its course before the meeting started. Not so, insists spokesman Salley. "At the meeting, our legal counsel, Ann Hause, presented a draft of the policy on what constitutes a physician in good standing," he says. "And there was discussion and agreement that the policy needed to be amended from the drafted policy" -- a copy of which can also be seen below. "That resulted in a decision to send another letter to people whose cards had been denied after the fact because of recommendations from doctors with conditions on their licenses," informing them that they can continue to use their application forms to obtain medical marijuana until the policy is formally adopted.
When might that be? The advisory committee has another meeting slated for December, at which time the issue will be discussed again with an eye toward establishing a position in advance of formal health department policy-making in March or beyond. Among the likely topics: Should all doctors with conditions on their licenses be allowed to write MMJ recommendations in the future? Should all doctors with restricted licenses be prevented from doing so in perpetuity? Or should the health department look at physicians with either restrictions or conditions on a case-by-case basis? (The health department opposes this approach, even though fewer than twenty physicians in the entire state are affected).
Of course, the advisory committee signed off on the prohibition on doctors with license conditions and restrictions at a meeting last month. But while Dean "got the feeling they were definitely trying to do the right thing, I don't think all of them really understood the subtleties, the differences between restrictions and conditions -- and they didn't understand the full repercussions of what they did."
That's certainly possible. While several members of the committee are medical professionals, others include an MMJ patient, a caregiver, a dispensary owner and two representative from law enforcement: Denver Police Department Lieutenant Ernest Martinez and Colorado District Attorneys' Council rep Ted C. Tow III. Sensible Colorado's Kappel singles out the latter pair, saying, "I don't think they have a place on a health advisory board."
Did the health department blink in the face of patient protests and possible legal action that would spotlight the decision to set aside applications long before SB 109 was law, not to mention the lack of public input? Sort of, Salley acknowledges.
"Due to the feedback the department received from the Colorado Medical Society, as well as calls from doctors and patients, I would say the department stepped back and will be revising the draft policy on the advice of the advisory committee."
Photo by Robert Fisher
Kappel puts things in a different way.
"I think the health department backpedaled because of the outcries of patients and the various advocacy organizations," he says. "It made them realize their unnecessarily restrictive interpretation was irrational and didn't involve proper procedure."
Meanwhile, there are still 500 patients whose license applications have been rejected through no fault of their own and another 1,300 in limbo. Those in the latter category are no longer breaking the law when they use their applications to obtain medical marijuana, as they've been doing in lieu of their license, but they still don't know if their application will ultimately be nixed -- and if that happens in March, a full year may have passed between submission and rejection.
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Dean, the doctor with a condition on her license, is in just as difficult a spot. Although the health department may ultimately decide that physicians like her can write medical marijuana recommendations, she won't know for certain for months -- and she doesn't feel it would be ethical for her to do so in the interim. As a result, she says, "I'm looking for a job."
Page down to read the first draft of the CDPHE's policy, as well as the aforementioned letter from the Colorado Medical Society taking issue with it:
More from our Marijuana archive: "Medical marijuana: Buena Vista lawsuit first to target Department of Revenue: More to come?"