Medical marijuana patients whose physicians have recommended increased plant counts beyond the legally allotted six are on their own in court, since state officials said last week that they will no longer defend the practice.
The Colorado Department of Public Health and Environment sent a notice to physicians and patients alike on April 30 letting them know that the state will no longer be able to officially register increased plant counts. Because there is no scientific data on effective medical marijuana dosing, the notice states, the state can't stand behind doctors who recommend increased plant counts for patients who often use the larger amounts to make concentrates or edibles.
Despite this rule change, the CDPHE is asking patients and doctors who continue using or recommending increased plant counts to submit any information on the efficacy of the treatment to the department for tracking purposes.
"As the department currently has no regulatory framework to assess and verify medical necessity for increased plant/ounce counts, the Registry will not report plant/ounce counts to law enforcement," the notice states. "Patients with plant counts higher than the standard of six plants and two ounces are encouraged to keep a copy of their applications, physician certifications and other documentation submitted to the Registry."
And if you're busted with more than two ounces or six plants? Don't look to the state for help. Fortunately, increased amounts are covered in Amendment 20, which legalized medical cannabis in the state: According to that law, patients with increased counts, as well as their caregivers, "may raise as an affirmative defense to charges of violation of state law that such greater amounts were medically necessary to address the patient's debilitating medical condition."
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According to marijuana attorney Rob Corry, the health department's policy is not really much of a departure from the previous status quo. If CDPHE staffers were called to testify for a patient or caregiver, he says, they'd merely show which documents they have on file, and the actual defense of the plant count would remain up to the patient and the physician making the recommendation.
While increased plant counts are necessary for some patients, the state auditor's office singled out this policy last year as one that could easily be abused, thereby leaving large amounts of medical marijuana unaccounted for. And so patients and doctors are no longer required to submit increased plant count recommendations -- because the CDPHE won't be approving them. In fact, CDPHE director and chief medical officer Larry Wolk recently told 7News that the number of increased plant counts he sees on the registry are "insulting," and that the doctors writing them could be committing malpractice.
Interestingly, retail marijuana dispensaries relied on the documented increased plant counts from patients to boost the amount of cannabis the shops could grow and sell. The CDPHE says it will still issue such forms to medical marijuana centers, though it is unclear what information they will actually contain.
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Read the CDPHE letter below: