Last November, we reported that nearly2,000 medical marijuana patient recommendations had been rejected
over a change in the definition of doctors okayed for this task. After an uproar, around1,300 were temporarily reinstated
pending formal action by the state board of health. That action came yesterday, with as many as 2,000 aps to be nixed as a result.
This situation was set in motion by Senate Bill 109, a measure sponsored by Chris Romer, now a Denver mayoral candidate, that was intended to clarify the relationship between doctors and medical marijuana patients. Here's a key passage from the legislation:
THE PHYSICIAN HOLDS A DOCTOR OF MEDICINE OR DOCTOR OF OSTEOPATHIC MEDICINE DEGREE FROM AN ACCREDITED MEDICAL SCHOOL; THE PHYSICIAN HOLDS A VALID, UNRESTRICTED LICENSE TO PRACTICE MEDICINE IN COLORADO; AND THE PHYSICIAN HAS A VALID AND UNRESTRICTED UNITED STATES DEPARTMENT OF JUSTICE FEDERAL DRUG ENFORCEMENT ADMINISTRATION CONTROLLED SUBSTANCES REGISTRATION.
The term "unrestricted license" is important. Some doctors have either conditions or restrictions placed on their licenses that disallow them from providing certain types of care, often due to rulings by the Colorado Medical Board. A frequently cited example is a surgeon who's been told he can no longer perform surgery because he suffers from arthritis. However, these caveats frequently have nothing to do with medical marijuana.
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Many of the most prolific MMJ doctors had restrictions or conditions on their licenses -- and because Amendment 20, which legalized medical marijuana in Colorado, required only that a physician be classified as being "in good standing," they had no reason to believe their recommendations were invalid. But even before the passage of SB 109, the Colorado Department of Public Health and Environment set aside applications recommended by doctors with conditions or restrictions on their license -- and afterward, the agency sent letters informing impacted patients that their aps had been rejected owing to the new language.
Around 1,300 patients recommended by physicians with conditional licenses were subsequently told their applications would be set aside until formal rules were adopted. Around 500 whose recommendations had come from doctors with restricted licenses remained out of luck.
Cut to yesterday, when the Board of Health formally established that physicians with conditions or restrictions on their licenses cannot write medical marijuana recommendations -- without going through an appeals process, that is. According to CDPHE spokesman Mark Salley, the board created a mechanism by which "a physician can go to the medical board and seek a confidential agreement that would allow them to authorize medical marijuana" -- a provision in a bill presently moving through the legislature this session.
What's this mean for patients whose applications had been temporarily approved -- 2,000 of them, says Salley, updating the 1,300 figure from late last year? He reveals that the effectiveness date of the new rule is April 30. As a result, patients "will be notified of a denial because the recommending physician had a condition or restriction -- and at that point, a couple of things might happen. The physician might go out and attempt to receive one of those confidential agreements with the medical board that would allow them to go ahead and authorize, or the patient might have to seek a different physician and submit a new application."
The latter prospect seems more likely, especially since it's uncertain how long the confidential-agreement process might take -- or whether it could be completed prior to April 30.
Other rules approved by the board include the requirement that MMJ recommenders actually examine the patient in question. "You can't have any kind of Skype long-distance exam," Salley confirms. Moreover, such doctors must make themselves available for future appointments.
An Associated Press article about yesterday's moves suggests that thousands of patients are in "limbo" due to the ruling, but Salley doesn't think that's quite right.
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"I don't know that I'd describe it as limbo," he says. "The thousands of individuals whose applications were submitted by physicians with restrictions or conditions had been deemed approved until the state took action. And now that the rule has been approved by the board, the department will take action to notify those individuals that their application came from a physician with a restricted or conditioned license, and therefore would be refused." In that sense, then, "the air is beginning to clear on what their status is based on the rule-making yesterday."
Page down to read the revised regulations, as well as a previous minority report from board of health members who objected to the blanket rejection of conditional or restricted recommenders prior to the establishment of the confidential-agreement provision.
More from our Marijuana archive: "Medical marijuana hearing nods to "Drugs are Bad, M'Kay" South Park ep? (VIDEO, PHOTOS)."