Op-Ed: Jared Polis and Phil Weiser Should Delay Implementation of HB 1317

Martha Montemayor, diirector of Cannabis Clinicians Colorado, submitted the following as an op-ed:

An open letter to Attorney General Phil Weiser and Governor Jared Polis:

We are asking you for help delaying the implementation of House Bill 21-1317 concerning the regulation of marijuana for safe consumption until serious legal issues with the bill are addressed by the courts.

The bill was signed into law on June 24, 2021. On July 1, 2021, medical marijuana patient Benjamin Wann sued the State of Colorado, challenging 25 significant breaches of the Constitution of the State of Colorado, the Health Insurance Portability and Accountability Act, and Colorado Revised Statutes that HB21-1317 presents. A few months later, doctors Sharon Montes and David Gray joined the suit as plaintiffs, as HB 1317 will force them to violate all of the above as well as the Colorado Medical Practice Act, state and federal Controlled Substances Act, their Colorado medical licenses and their DEA licenses in order to continue caring for their patients. On August 3, the plaintiffs filed a motion for a preliminary injunction with the courts asking that implementation of HB 1317 be delayed until the court has ruled on the constitutionality of the law. Unfortunately, no ruling has yet been made.

We are asking the Governor to advise the Attorney General’s office to ask the court to grant the plaintiff’s motion for preliminary injunction in Wann v. Polis et.al. so that legal issues can be decided before the law is implemented.

At the Colorado Board of Health Emergency Rulemaking hearing related to HB 1317 on December 15, Board of Health President Patricia Hammond recognized the conflict between the new legislation and the Medical Practices Act and voiced strong reluctance to implement the new rules. At the hearing, boardmember Raymond Estacio said, “I can’t think of any diagnosis or condition where I would need a second opinion to treat my patient.” Laura Lasater added that requiring previous medical records for all is a social-justice issue, since poor people who want to try medical marijuana will be shut out. “If you’re sixty years old with no health insurance and can’t remember the name of the doctor who diagnosed your arthritis eight years ago, medical marijuana is now out of reach,” she said.

Worried about the negative effect the new rules will have on patients, Hammond urged Board of Health members uncomfortable with the rulemaking and doctors caring for medical marijuana patients to get in touch with the courts and/or lawmakers as soon as possible. That’s why I am writing you today.

Here are a few of the many possible direct harms to patients, physicians and the public that were raised by stakeholders at the meeting should HB 1317 go into effect on January 1, 2022:

1. Doctors specializing in medical marijuana will be stripped of their right to diagnose their own patients. The new law says that patients must have records from a previous doctor to see a medical marijuana doctor. The Medical Practice Act currently determines a provider’s right to diagnose by their license type, not by a treatment they may recommend. Starting January 1, only patients wealthy enough to have a history of well-documented care will be able to use medical marijuana. Patients who haven’t been able to afford consistent care, who don’t have health insurance, who lack computer skills, or who can’t remember the name of that doctor they saw five years ago will now have to pay for a second doctor visit for a diagnosis, in addition to the medical marijuana evaluation.

2. Doctors will be forced to violate five different laws by writing a prescription instead of a recommendation. The difference between a recommendation and a prescription is dispensing instructions, and the new HB 1317-mandated Provider Certification includes the full DEA list of dispensing instructions. Therefore, starting January 1, medical marijuana doctors will have to violate section 12-36-117 of the Medical Practices Act, the state constitution, the Colorado Controlled Substances Act, their Colorado medical license and their federal DEA license by writing prescriptions for a DEA Schedule I controlled substance. If medical marijuana doctors stop seeing patients in order to avoid breaking the Medical Practice Act, up to 88,000 patients can lose access to care over the next year.

3. HB 1317 requires doctors to give patients all the information someone needs to call in a fraudulent prescription to a pharmacy. Paper prescriptions for all other drugs are taken by the pharmacy when filled. The new law requires the patient to carry a signed, printed copy of the Provider Certification with them for a full year.

In addition to the above listed harms, the Colorado Department of Public Health and Environment (CDPHE), which runs the Colorado Medical Marijuana Registry, stated at the emergency rulemaking hearing that the Medical Marijuana Registry (MMR) does not have adequate revenue to implement HB 1317 as of January 1, 2022. MMR is also pursuing an extension of the appropriations outlined in the bill that allow for system upgrades and hiring.

Should HB 1317 proceed without delay, approximately 7,000 current medical marijuana patients with extended plant counts and roughly 3,500 patients ages 18-20 will immediately need new documentation from their doctors on January 1, 2022, in order to continue getting their medicines. If CDPHE lacks the resources to implement the bill on January 1, what happens to these patients?

Again, we ask the Attorney General’s office to ask the court to grant the plaintiff’s preliminary injunction in Wann v. Polis et. al. so that legal issues can be decided before the law is implemented.

Martha Montemayor CNC
Director, Cannabis Clinicians Colorado

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