Back in January, when attorney and medical marijuana advocate Rob Corry called on the Colorado Department of Public Health and Environment to reveal how much money it had collected from MMJ patient fees, he complained about a waiting period for permits in the four-month range.
Since then, Corry believes the situation has grown worse on a number of fronts. At this point, he estimates that some people have waited eight months for their permits -- and he also criticizes the CDPHE for allegedly telling doctors that recommending more than six plants or two ounces of marijuana per patient is against the law even if they deem a greater amount to be medically necessary.
In a letter on view below, Corry has made a public-records request for documentation of this assertion, which he says "is simply not true."
Corry says he's spoken to physicians and representatives of physician-referral services who've received such a warning from the CDPHE -- one that, in his view, isn't supported by Amendment 20, which made medical marijuana legal in Colorado.
"Under the Colorado constitution, a doctor has a right to opine about whatever amount of marijuana is medically necessary to address a patient's debilitating medical condition," he says. "The exact phrase is in black and white."
Does Corry believe the CDPHE is taking this step because of its concern that a relative handful of doctors are making the vast majority of medical marijuana recommendations, as Ned Calonge, the state's chief medical officer, emphasized during a December interview with Westword?
"I am reluctant to speculate as to what goes through their heads," Corry says. "I'm not sure why the prospect of somebody in a wheelchair medicating keeps these people awake at night, or why that's a bad thing at all. But I think it might be something related to the fact that there are some doctors who have courageously elected to specialize in this area of medicine and have greater knowledge of it than perhaps other doctors. I think that offends them, maybe."
Whatever the case, Corry says, "I don't think the CDPHE should be practicing law. I don't think they should be practicing medicine, either. Their only role in this is to process and issue medical marijuana registry permits, and to do so without exercising any discretion. This is their only duty."
At the same time, Corry sympathizes with the plight of CDPHE staffers who are responsible for processing the deluge of applications -- 1,650 in a single January day.
"I know some of the people who are actually doing this, and they are diligent and work hard," he allows. "But the department is not discharging its duty very efficiently if it takes eight months to process a card that somebody is paying $90 for. That's got to change, and change immediately. With an eight month delay, a person may have a law enforcement interaction, or he may experience difficulty gaining admission to a dispensary or working with a caregiver. And there are some people whose money orders or checks expire after six months, which could potentially cause some problems, too. This hurts people.
"Those at the top are responsible for the proper allocating of resources, and they're not doing that very well. They need to hire more people over there, and they've got money to do that. If there are 100,000 patients and you multiply that by $90, that's a lot of money. In fact, I think the fee is probably too high as well, although that's a peripheral issue."
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More to the point, Corry feels, are the "hyper-technical reasons the CDPHE is using to reject applications. I've been informed that people have been rejected because their application was not filled out in blue ink, or the return address on the envelope was different from the address on the registry card. I've heard about the most extreme bureaucratic reasons to reject these applications, and that's got to stop, too. But I don't think there's an institutional prioritizing and an institutional desire to do a quick turnaround."
Obviously, Corry is hoping his letter will light a fire under the CDPHE, and he says if he gets the documents he's requested, "I'll see if it makes sense to share them."
Here's Corry's letter:
April 16, 2010
Martha E. Rudolph, Esq., Acting Executive Director
Colorado Department of Public Health and Environment
Custodian of Records
Colorado Department of Public Health and Environment
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Re: Medical Marijuana and "Medical Necessity" Advice from Physicians; Open Records Act Request for Related Records
Dear Ms. Rudolph and CDPHE Custodian of Records:
On recent occasions, the Colorado Department of Public Health and Environment ("CDPHE") has informed physicians that advice to patients regarding "medically necessary" amounts of marijuana is somehow not permitted by law. Medical Marijuana patients and physicians are troubled that the CDPHE has intruded into the confidential and sacrosanct doctor-patient relationship, especially where the Colorado Constitution, Article XVIII § 14(4)(b), specifically provides that any quantity of marijuana is legal and permitted if it is "medically necessary to address the patient's debilitating medical condition." (emphasis added).
The CDPHE's practice is especially concerning in light of two current issues: (1) the Colorado Legislature contemplates radically expanding CDPHE's authority over medical marijuana in Senate Bill 109 and House Bill 1284, which would be a major mistake in light of CDPHE's institutionally belligerent attitude against marijuana; and (2) the CDPHE's inexcusable delay of eight months in issuing Medical Marijuana Registry Cards to qualified patients suffering from debilitating medical conditions who submit the excessive $90.00 fee.
CDPHE's attempted micromanagement of physician decision-making distracts from its sole purpose regarding medical marijuana -- i.e. to process and issue registry cards without exercising any discretion -- and has caused a delay that threatens the lives and safety of qualified patients. There are an estimated 100,000+ patients who have submitted the $90.00 fee to CDPHE. This $9,000,000.00 collected could pay for more employees, so that CDPHE could issue cards to needy patients on a timely basis. Perhaps the Department of Motor Vehicles ("DMV") provides a model for CDPHE to emulate. DMV provides same-day service to millions of Coloradans for a fraction of the $90.00 fee. DMV issues a quality plastic card, which survives a washing machine, and does not include improper advisements such as "WARNING: IT IS ILLEGAL TO DUPLICATE THIS CARD." Incidentally, it is not and has never been "illegal" to duplicate a registry card, and on the CDPHE's website, the CDPHE itself advises caregivers duplicate the card. (http://www.cdphe.state.co.us/hs/Medicalmarijuana/How%20do%20I%20become%20a% 20care%202.pdf)
As with any non-prescription drug such as aspirin, a patient himself is permitted to determine what amount is "medically necessary." In addition to the patient himself, certainly it is true that as a doctor can advise "take two [non-prescription] aspirin and call me in the morning," that such trained, licensed, informed physicians are well-positioned to advise a particular patient, after consideration of medical history and an examination, amounts of marijuana that are "medically necessary" for that patient. Not qualified on the question of "medical necessity" are prosecutors, police officers, and the CDPHE, which have not examined individual patients and are not in a position to make any medical diagnoses or provide medical advice, and typically do not actively practice medicine.
For example, in the jury trial of People v. Jason Lauve, Boulder District Court Case No. 08CR1540 (2009), the prosecution theory was that Mr. Lauve had 34 ounces of medical marijuana supposedly in excess of the two ounces provided for in the Colorado Constitution. The jury found that the prosecution had not met its burden of proof that 34 ounces was not medically necessary for Mr. Lauve, and acquitted him of all charges.
CDPHE's threats against physicians providing advise as to medically necessary quantities of marijuana are toothless, in light of strong legal protection for physicians in both state and federal law. See Colorado Constitution Article XVIII §14(2)(c) ("No physician shall be denied any rights or privileges" for advising a patient regarding medical marijuana); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), cert. denied, 124 S.Ct. 387 (2003) (physician has a First Amendment right to advise a patient about medical marijuana and cannot suffer any prosecution or loss of license to practice medicine). Despite the fact that CDPHE's threats are empty, its actions have caused harm to patients seeking to grow or possess more, and a chilling effect among doctors.
We firmly request that the CDPHE immediately cease and desist from the practice of wrongfully advising physicians not to communicate with and advise their patients of specific quantities of medically necessary marijuana, and further request that CDPHE immediately rescind, in writing, each and every written threat or advisement of physicians or others in this regard.
We also hereby request, pursuant to the Colorado Open Records Act, C.R.S. § 24-72-201 et seq., any and all "writings," under C.R.S. § 24-72-202(8), and "public records," under C.R.S. § 24-72-202(6)(a)(I), relating to the subjects above, including but not limited to copies of each and every letter or other communication between CDPHE, physicians, or others regarding amounts of medical marijuana medically necessary, elevated plant or ounce count advice. Pursuant to C.R.S. § 24-72-203(3)(a) and § 24-72-205(1), please make the records available as soon as possible. If you decide to withhold any records, please provide a statement of grounds pursuant to C.R.S. § 24-72-305(6).
Please email Law Clerk Travis Simpson at firstname.lastname@example.org to arrange for inspection and copying of the records. Please advise us before incurring any costs and feel free to contact me with questions or if you need further information. Thank you for your prompt attention to these important matters.
Robert J. Corry, Jr.
cc: Anne Holton, Esq.
Jennifer Weaver, Esq.
Colorado Attorney General's Office