Now, however, the CDPHE's referral process has been struck down in Denver District Court. In a ruling on view below, Judge Jay S. Grant found that the policy had been improperly instituted and ordered the state to immediately stop enforcing it.
This action comes in response to a lawsuit filed in 2015 by nine doctors referred to in court documents as John Does. According to attorney Rob Corry, who represents them, they filed anonymously because "they were being targeted politically by the CDPHE and the medical board, which worked in concert to develop a secret policy in total, blatant violation of the Colorado Open Meetings Law."
In June 2013, the order notes, the Office of the State Auditor released a "performance audit" of Colorado's medical marijuana regulatory system. The report found that the CDPHE "does not have sufficient oversight of physicians to ensure they are making appropriate recommendations for marijuana" and advised the department to "determine risk factors to identify potentially inappropriate physician recommendations and to establish guidelines for making physician referrals."
Over the next year or so, the CDPHE began drafting a policy intended to address this issue based on three primary factors: "Patient caseload (a high caseload was calculated as 3,521 or more patient recommendations in one year for a general practitioner); "Plant and ounce recommendations (physicians who recommended a plant count above 24 plants/8 ounces for any one patient without substantiating medical necessity evidence); and "Age demographics (physicians for whom more than one-third of the patient caseload is under the age of 30)."
In creating this policy, department personnel took part in multiple meetings and additional communication between medical marijuana program staffers and personnel from the medical board. But the public was not notified about any of these meetings, and the policy itself — on view below — hadn't been made public when the nine plaintiffs were referred to the board. (John Does 1-8 were referred in June 2014, while John Doe 9's information was passed along in February 2015. The document is dated April 2015.)
Because the policy was initially in the shadows,"the doctors didn't even know the standards they were supposed to follow," Corry says. "Their defense of that was, 'Then the doctors would tailor their activities toward the guidance,' to which our response was, 'Well, isn't that the point?' Don't you post speed limits? Or do you keep speed limits secret and then do gotchas on drivers who go over the speed limit?"
After administrative subpoenas were issued to the plaintiffs, Corry continues, "we decided to pool our resources — to get together and sue proactively to try to stop this process, which we discovered through open-records requests and discovery depositions."
These efforts have resulted in what Corry refers to as "a major victory" — a claim supported by the language of the order.
Judge Grant found that the CDPHE's policy was not "merely a referral." Instead, he wrote, "the referral acts as a complaint and, as a result, confers injury upon those referred." He cites language in the notification received by the doctors, which reads in part: "The Colorado Medical Board has received the attached complaint regarding your conduct as a licensed physician, more specifically, a possible violation of the Medical Practice Act.”
Additionally, the order states that the policy "was not the product of informal meetings among the Department’s staff members regarding an internal administrative policy. Rather, this policy was the product of about a dozen meetings and about a dozen phone calls between staff members with the Department and staff at the Board for the purpose of alerting the Board to investigate physicians. This policy was adopted and implemented without providing public notice and during which no minutes from meetings were taken. Furthermore, the formulation of this policy does not appear to be based on any scientific or medical evidence."
This last line strikes Corry as particularly damning.
"If you look at the court's order, the legal significance is that the policy was not adopted under law; whether it was a good policy or not, it still had to be passed with public comment and notice. But in this case, the court pointed out that there doesn't appear to be any science behind the policy. The numbers in the policy are completely arbitrary, which suggests that this policy wouldn't have been adopted if the CDPHE had bothered to check with the people who do this every day. That's the purpose of common-sense open-meetings laws. When the government is putting together these policies, they ought to check with the people who know what they're talking about — the doctors who do this all day long."
Corry feels certain the CDPHE will quickly begin developing a new policy, complete with public meetings, as required by law — and he says his clients would welcome guidance, not to mention the opportunity to participate in the process. Yet he also argues that the department's prior approach "exposes the highly politicized posture of the Colorado government. It's so clear that the medical board establishment and the CDPHE itself doesn't want medical marijuana and knows it can't amend the constitution — so it's going to attack the soft underbelly of it, the licensed physicians who have chosen to recommend it. There's always been this default medical-establishment position that if it's not a synthetic pill manufactured in a pill factory, it can't be medicine. That's been one of the challenges to medical marijuana for decades, and it just so happens that the powerful, politicized, governor-appointed members of the medical board are in that camp more so than in the more progressive, open-minded camp of doctors who believe marijuana has medical benefits."
He also sees another possible motivation behind the policy.
"This shows an unintended consequence of the high taxes on recreational marijuana that the Department of Revenue and, really, the State of Colorado legislative and executive branches as a whole are trying to channel the industry toward," he maintains. "Legislators have talked about how medical is a tax dodge. But we wouldn't have the vaunted recreational industry without twelve years of medical marijuana laying the groundwork before that. I'm sure they know that — but I think tax revenue is driving a lot of this. And not to be overly paranoid, but I do think Big Pharma has a role, too. They can't control medical marijuana as it's currently constituted, and it holds a lot of influence in the medical community and in politics as well."
The order doesn't directly impact the four doctors suspended in July, but Corry believes the decision "makes the state's job of proving a knowing violation of generally accepted medical practice much harder to prove, because any violation was derived from a now-illegal policy. The court has enjoined the state from future enforcement of it, and that's how these doctors became known to the medical board in the first place. So it's a strong argument in these doctors' favor and a very positive development in the overall picture of protecting physicians and their patients, as well as the ability to access marijuana for medical purposes."
Continue to read the court order, followed by the physician referral policy the judge says the CDPHE can no longer use.
CDPHE Physician Referral Policy
