Medical marijuana: Patients who only need caretaker for pot can't have one, new rules say

The Colorado Department of Public Health and Environment's new rules about the "Medical Use of Marijuana" went into effect on July 31 and have caused few gripes thus far. But attorney Warren Edson sees several problems with the regs on view below, including contradictions with HB 1043, the so-called MMJ clean-up bill signed into law earlier this year, and an edict stating that any patient who only needs a caretaker for weed isn't allowed to designate one.

"We expected caregivers to get screwed over," Edson notes, "and it happened just the way we thought."

Specifically, Edson points to a caregiver being defined as someone with "significant responsibility for managing the well-being of a patient." What's that mean? Here's the CDPHE's description:

"... in addition to the ability to provide medical marijuana, regularly assisting a patient with activities of daily living, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or other services unrelated to medical marijuana. 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.'"

Edson sees this language as a nod to the case of Roger Mentch, a California caregiver found guilty in 2008 of possessing and cultivating marijuana for sale because he didn't "assume the responsibility for a patient's housing, health or safety, or some combination of the three, in addition to providing them with marijuana," according to CannabisNews.com. But Colorado's health department goes further, in his view, by determining that patients who can handle these chores for themselves are out of luck, caregiver-wise. "It kind of flows backward," he says. The document states:

A patient may only have one primary care-giver at a time. If a patient does not require care-giver services other than the provision of medical marijuana, then the patient shall not designate a primary care-giver.

Warren Edson.
Warren Edson.

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Another curiosity: The CDPHE says a patient may change his primary caregiver "no more than once per month." However, HB 1043 states that such a switch may only take place every 120 days. That way, says Edson, "a patient can't go down the street to a different center a few weeks after signing up and leave the original one in the lurch. They have plants assigned to a patient, and they've put time and money to them -- and if the patient leaves them right away, they would have to destroy the plants."

This seems like an obvious conflict. However, Edson says one of his clients called the Medical Marijuana Enforcement Division to ask which number was correct and he was told they both were. Huh?

Another matter of concern for Edson can be found in this passage: "A patient who has been convicted of a criminal offense under article 18 of title 18, C.R.S., sentenced or ordered by a court to drug or substance abuse treatment, or sentenced to the division of youth corrections shall be subject to immediate renewal of his/her registry identification card."

The word "renewal" is an example of what Edson sees as obfuscation -- perhaps the purposeful kind. That's because a patient ordered to undergo drug or substance-abuse treatment will immediately lose his or her MMJ card and then have to reapply for it. And as Edson reads it, the card will be taken away whether or not the offense has anything to do with drugs. A DUI or family court judgment ordering treatment related to alcohol? Doesn't matter.

Granted, Edson sees a few aspects of the new rules that he likes, including language that puts pressure on the department registry to issue cards promptly and confidentiality dictates that are tighter than originally anticipated. But plenty of sections raise as many questions as they answer, including those that imply caregivers can share the same space as long as their plants are either physically separated or separately identified, depending on whether they're in a warehouse-type environment or a home.

Not that he'd encourage folks to make any assumptions about what's what. In his words, "I long ago switched from asking for forgiveness to asking for permission." And that approach makes even more sense now.

Page down to read the new CDPHE rules:  

Colorado Department of Public Health and Environment Medical Use of Marijuana Rules

More from our Marijuana archive: "Medical marijuana: MMED working group cold shouldering Twirling Hippy's Jessica LeRoux?"


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