Medical marijuana: Possible lawsuit against CO health department over license ap rejections

The rejection of nearly 2,000 medical marijuana applications due to a new health department policy has generated anger among patients and doctors no longer allowed to write recommendations. Now, a rep of the advocacy group Sensible Colorado, which took part in a successful court challenge against the department last year, confirms that the organization is considering similar action this time around.

"We've been hearing complaints from patients who've been rejected through no fault of their own, solely because they went to the wrong doctor," says Josh Kappel, Sensible Colorado's outreach director. "And we think the way the health department handled this is very unprofessional. They didn't tell anyone publicly what the rules were, and neither did they let the doctors know."

Here's the basic issue. Amendment 20, the 2000 measure legalizing medical marijuana in Colorado, established that MMJ recommendations could be written by a "a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado." This definition was modified this year in Senate Bill 109, a piece of legislation intended to clarify the relationship between doctors and patients. SB 109 states that recommending doctors must have an unrestricted license -- meaning they have no conditions or stipulations on their ability to practice in all areas of medicine.

This tweak disallowed eighteen of the most prolific MMJ recommenders -- and as such, the health department recently began informing thousands of patients whose recommendations were written by these physicians that their applications have been rejected. Moreover, a department spokesman confirms that personnel began setting aside applications associated with those doctors months before SB 109 was signed into law by Governor Bill Ritter this past June. And while the change was mentioned at an MMJ advisory committee meeting in mid-October -- and a physician update release was posted on the health department's website last Thursday, the day Westword inquired about the issue -- it won't be formally discussed by the state's board of health until a future session, probably early in the new year.

This situation is unacceptable for a number of reasons, Kappel says. Many patients waited the better part of a year for this news, he points out, and they now face the prospect of having to find another doctor and possibly pay a second time to get a recommendation.

In the interim, many patients have used their application documents to obtain and/or grow marijuana. That's allowable under law if the state doesn't process an MMJ application within 35 days -- a deadline that's seldom been met. Delays of over six months have been commonplace.

"What do patients do now that they've found out what they've been doing is illegal, because their applications have been rejected?" Kappel asks. "Do they need to get rid of all the medicine they've purchased? Do they need to destroy the plants they're growing, because all of a sudden, on the whim of the health department, they went from being law-abiding citizens to criminals due to no fault of their own?"

As for the health department's policy toward doctors with conditions or stipulations on their licenses, Kappel finds it faulty. He stresses that some physicians wind up with restrictions simply because of age. For example, a doctor who develops arthritis may be prevented from taking part in surgical procedures, but can otherwise practice medicine without limitations. Telling a doctor he can't recommend medical marijuana under such circumstances "is nonsensical," he believes.

Some observers believe the health department's real goal simply to reduce the number of MMJ applicants in any way it can, whether there's a reasonable rationale or not. Kappel won't speculate about that, but he feels the department "is reading 109 as broadly as possible, and they've continuously tried to limit patient access -- limit access to the medical marijuana registry program, limit access to caregivers. There's a definite pattern, and this is another example of that pattern."

Exhibit A: Last year, after a court ruled in the case of Stacy Clendenin that MMJ caregivers must do more than simply supply marijuana, the health department hustled to adapt this new standard on an emergency basis, which could have decimated the dispensary distribution model. But attorneys like Sensible Colorado's Brian Vicente challenged these regs, arguing that the public hadn't been given adequate notice about the potential change -- and Judge Larry Naves agreed, thrilling MMJ boosters and giving the health department a very public black eye.

Could a similar suit target the health department over its latest action? Kappel isn't a lawyer, but he confirms that this option is being actively debated at Sensible Colorado. "It's under discussion, but there are no specifics at this point," he says.

In the meantime, Kappel says now-rejected patients who've been growing marijuana may want to consult a lawyer to make sure they won't be punished due to the health department's move. He adds that Sensible Colorado representatives may appear at the next meeting of the department's medical marijuana advisory committee, scheduled for 2 p.m. on Wednesday, November 10 at the department's 4300 Cherry Creek Drive South offices in the Sabin Conference Room.

Don't be surprised if a number of other folks show up at the get-together with this issue on their mind.

More from our Marijuana archive: "Could Clendenin case deal a blow to Colorado's pot biz?"