At 9 a.m., the Board of Health is scheduled to consider a series of new rules pertaining to medical marijuana patients and caregivers -- and the Cannabis Therapy Institute's Laura Kriho has objections to a lot of them. She's particularly incensed by potential changes in the definition of caregiver and what she sees as a stealth attempt on the part of the Colorado Department of Public Health and Environment to create a THC driving limit of the sort rejected by the state legislature.
Although few MMJ advocates are big fans of the health board, critics have been especially distressed by some of its actions this year. In February, for instance, the CDPHE's medical marijuana advisory committee recommended what member and Boulder County Caregivers owner Jill Lamoureux regarded as positive changes for caregivers -- adding education and consultation on medical-marijuana use to the current definition and broadening the waiver process, among other tweaks. But the CDPHE rejected the new caregiver definition at the advice of the Colorado Attorney General's office, and the comment period on a new version including the phrase "THE ACT OF SUPPLYING MEDICAL MARIJUANA OR MARIJUANA PARAPHERNALIA, BY ITSELF, IS INSUFFICIENT TO CONSTITUTE 'SIGNIFICANT RESPONSIBILITY FOR MANAGING THE WELL-BEING OF A PATIENT'" ended on 4/20.
But while this may be the headline item, Kriho believes plenty of other issues should also raise alarm. For instance, she says, "the CDPHE thinks it can create a new crime under Colorado law -- a medical marijuana DUI, which doesn't have any penalties laid out anywhere in the Colorado revised statute. Their authority to do this is totally unclear, but it looks suspiciously like a backdoor attempt to criminalize driving under the influence of medical marijuana."
As Kriho points out, a bill to do just that, by establishing a 5 nanogram per milliliter of blood intoxication standard, died in the last legislative session. One factor: a test showing that Westword medical marijuana reviewer William Breathes was nearly triple the proposed limit when sober.
In addition, Kriho is concerned about language stating that patients and caregivers shall not undertake any task while under the influence of medical marijuana that would constitute negligence. She sees the language as exceedingly vague and well beyond the scope of what the CDPHE is charged to do in this area.
"They were given a very specific mandate in the constitution -- to create a confidential registry of patients, period," she allows. "They weren't given the authority to do any of this other stuff by the constitution or the general assembly."
Nonetheless, the board is moving forward with loads of regulations, including a mandate stating that patients can only change caregivers once per month -- another bizarre dictate, in Kriho's mind. She lays out her objections to this and other rules in a sample e-mail on view below.
And if the board ignores advocates planning to be at this morning's meeting and okays the new regs? Kriho says they'll go into effect on July 1 after being blessed by the attorney general, John Suthers -- who she's certain has already signed off on them. After that, only legal action can stop them.
"CannabisLawsuits.com, baby," she says, referring to fellow advocate Kathleen Chippi's effort to challenge the state's medical marijuana law in court. "These things have really been shoved down people's throats will very little notice or rational basis to do it. We need to slow them down with a lawsuit and have a court decide the constitutionality of them."
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Page down to read the aforementioned sample e-mail, which Kriho encourages folks to send to firstname.lastname@example.org.
Cannabis Therapy Institute sample e-mail to the Board of Health:
To the Board of Health:
In regards to the proposed Amendments to Rules and Regulations Pertaining to Medical Use of Marijuana (5 CCR 1006-2) for patients and caregivers, please accept these comments for the official record.
Rules for Patients
1) I object to Regulation 12 (C) (6), which states that a patient shall not "operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat while under the influence of medical marijuana." There is no proof that marijuana causes impairment in operation of a motor vehicle. This criminalizes patients with debilitating medical conditions, who must continuously medicate to control their chronic conditions. The state statutes regarding "driving under the influence of drugs" (DUID) is already adequate. The CDPHE does not have the authority to create a new crime called "DUIMM".
2) I object to Regulation 12 (C) (1), which states that a patient shall not "undertake any task while under the influence of medical marijuana, when doing so would constitute negligence or professional malpractice." This regulation is vague, unenforceable, and potentially harmful to patients. It is without any rational basis.
3) I object to Regulation 2 (B) (2), which states that the Patient Confidential Registry application may now contain a space for a Medical Marijuana Center to be listed. The CDPHE has no authority to collect information on Medical Marijuana Centers (MMC). Article XVIII, Section 14 of the Colorado Constitution, Colorado's medical marijuana amendment, only authorizes the CDPHE to collect the name of the patient and the patient's caregiver, if designated, and to keep this information confidential.
Additionally, the CDPHE has no regulatory authority over MMCs, which are regulated through the Department of Revenue. The collection of MMC information by the CDPHE shows their intent to share this information with the DOR, in violation of patient privacy guarantees in the Constitution. The Board of Health shall pass no rules that infringe on patient's constitutional right to confidentiality or that allow the CDPHE to share information with the DOR.
4) I object to Regulation 2 (E), which states that a patient may change his primary caregiver once per month. First, the CDPHE has no authority to state how often a patient may change caregivers. Additionally, under DOR rules, a patient cannot change his MMC more than once every 120 days. The CDPHE Regulatory Analysis stated that the reasoning behind this was to protect the investment of the cannabis medicine provider, by allowing the plants to get through a 3 to 4 month grow cycle. In this light, this provision is unfair to caregivers, as they will not have their investment protected for as long as MMCs.
5) I object to Regulation 2 (I), which states that patients who have been convicted of a criminal drug offense, ordered by a court to drug or substance abuse treatment, or sentenced to the division of youth corrections must reapply to the registry if they wish to continue in an active status on the registry. This regulation unfairly punishes patients who have been convicted of, or forced to plead guilty to, any kind of drug offense. Drug convictions do not have any bearing on a person's right to use medical marijuana under the Constitution. There is no rational basis for this regulation.
Rules for Caregivers
1) I object to Regulation J (6), which states that a primary caregiver shall not "operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat while under the influence of medical marijuana." There is no proof that marijuana causes impairment in operation of a motor vehicle. This criminalizes patients with debilitating medical conditions, who must continuously medicate to control their chronic conditions. The state statutes regarding "driving under the influence of drugs" (DUID) are already adequate. The CDPHE does not have the authority to create a new crime called "DUIMM".
2) I object to Regulation J (3), which states that a primary caregiver shall not "undertake any task while under the influence of medical marijuana, when doing so would constitute negligence or professional malpractice." This regulation is vague, unenforceable, and potentially harmful to patients. It is without any rational basis.
3) I object to Regulation 9 (C), which states that the CDPHE is going to start collecting names of people who want to be primary caregivers, but don't have any patients, and allow the CDPHE to give names of caregivers to any registered patient. The CDPHE has no authority to collect names of primary caregivers. This appears to be another way for the CDPHE to help the DOR create the database of everyone even remotely interested in growing medical cannabis in Colorado. There is no authority for this in the Constitution or in statute.
3) I object to Regulation 9 (L), which states that if patients do not require caregiver service other than the provision of medical marijuana, then the patients shall not designate a primary care-giver. This violates patient's Constitutional right to use their caregiver of choice. If a patient does not need additional services, the CDPHE has no authority to deny the patient the right to use their husband, wife, brother, sister or anyone from serving as their caregiver. This regulation is cruel and malicious and has no rational basis.
I respectfully submit these comments.
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