Over the past week or so, medical marijuana patients across the state have learned that doctor recommendations for the card allowing them to use MMJ have been rejected. Why? A new health department policy that slid into place almost unnoticed -- one that's likely to disenfranchise and anger nearly 2,000 patients, as well as infuriating impacted doctors and clinics.
Why? A change in definition for doctors approved to write medical marijuana recommendations that the Colorado Department of Public Health and Environment began enforcing late last month. Department spokesman Mark Salley confirms that eighteen doctors specializing in MMJ are now forbidden to recommend cannabis. But instead of informing the affected physicians, the department has been telling patients who received the recommendations, some of which date back to the early months of 2010. They've then been filling in the doctors, often in extremely heated ways.
Some background: Amendment 20, the 2000 measure that legalized medical marijuana in Colorado, defines a physician allowed to recommend medical marijuana as "a doctor of medicine who maintains, in good standing, a license to practice medicine issued by the state of Colorado." But in recent years, Ned Calonge, Colorado's chief medical officer until earlier this month, has been concerned about doctors who specialize in writing MMJ recommendations without engaging in followup care with patients.
In a 2009 Westword interview, Calonge decried such doctors, saying, "You might walk in to a dispensary, and they give you a pre-completed form. You check off chronic pain. They might do a blood-pressure check, and then a physician looks at you, asks you a couple of questions, signs your form and your application is complete. And that's not appropriate medical care. That's substandard." He added that recommendations from just fifteen doctors statewide led to 73 percent of the state's almost 16,000 MMJ licenses at that writing.
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State Senator Chris Romer believed many of these patients didn't really need medical marijuana -- and he set out to tighten restrictions on doctors specializing in MMJ as a result. That's why Senate Bill 109, which he sponsored, defines a doctor in good standing like so:
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 key word in the passage above is "unrestricted." Some doctors' licenses are tagged with conditions or stipulations often related to a specific area of practice. And it so happens that many of the most prolific recommenders of medical marijuana have such restrictions. Until Colorado Governor Bill Ritter signed SB 109 in June, these doctors could recommend medical marijuana -- and for months afterward, they continued to do so. Little did most of them know that recommendations written afterward, and even ones written in the months before the measure became law, would be rejected.
Dr. Janet Dean, an OB/GYN based in Denver, found this out the hard way.
Dean has a condition on her license that requires OB/GYN charts for her patients to be reviewed for eighteen months. She declines to provide specifics about what this twenty-year medical veteran calls the "witch hunt" that led to the determination, although HealthGrades.com reports that in March 2008, she "failed to meet the standard of care in her treatment of a patient in which the physician had provided prenatal care, operative delivery of a male infant, and postpartum care.
Although more than eighteen months have passed since March 2008, the clock hasn't started ticking because Dean has been unable to find a job in her area of specialty. So last September, she began working for a clinic that focuses on medical marijuana recommendations. (She declines to name the business.) She stresses that the condition on her license doesn't prevent her from any other areas of practice. "I can write prescriptions for Oxycontin," she says. "I can write prescriptions for Percocet. I can write prescriptions for Vicodin."
She also wrote recommendations for medical marijuana, seeing thousands of patients over the course of the past year-plus, by her estimate. She adds that she phoned the state's Medical Marijuana Registry both before and after the passage of SB 109 to make sure that she could continue doing so, and she says she was reassured that "everything was fine."
But then, in recent days, she started getting calls from patients saying their card applications had been rejected because she was not qualified to recommend MMJ. "We're getting threats. Not physical threats, but, 'We're going to sue you for fraud, because you've stolen our money,'" she notes -- an assertion borne out by posts on local marijuana message boards like this one. "They're up in arms, and you can't blame them. But they don't realize the health department changed the rules in the middle of the game."
Health department spokesman Mark Salley doesn't put it quite that way -- but he does acknowledge that "when the state legislature was considering bills that further refined a bona fide doctor-patient relationship, and also further clarified the definition of a physician in good standing, we began holding applications that had physician authorizations from physicians who had a restriction or condition on their license."
This continued up until an October 18 meeting of the volunteer medical marijuana advisory committee. After a health department presentation about the importance of preventing doctors with restricted licenses from recommending MMJ, the committee signed off on the proposal, Salley says. He adds that "we're not making value judgments on various conditions that might be on a license" -- like, for instance, the one on Dean's, which apparently has little to do with her competency to recommend medical marijuana. "Any license that has a condition is not an unrestricted license in the language of the Senate bill. That's what our legal advice has been."
A week later, on October 25 -- after the department "finished getting legal advice and consulted the Board of Medical Examiners," Salley says -- personnel began returning the applications of patients with recommendations from Dean and the other seventeen doctors flagged for license restrictions. Complaints from patients soon erupted.
How many are affected? In a letter to various health department personnel, including acting chief medical officer Dr. Lisa Miller, Laura Kriho of the Cannabis Therapy Institute used the number 5,000, but Salley disputes that total. He says the actual amount is between 1,000 and 2,000 -- but closer to 2,000.
The health department has been overwhelmed by applications in recent years, with a processing backlog that's stretched out to many months. Did the department use the new SB 109 language, even before it became law, as a way of lightening the load? While Dean concedes, "It's certainly possible that's a part of it," she declines to point fingers -- although she does take a swipe at what she refers to as "retroactive" enforcement that included patients from before SB 109's passage.
Salley isn't sure the word "retroactive" is applicable in this instance. He stresses that the department won't disallow previously issued cards from physicians with license restrictions, but he says when those cards come up for renewal, the patients will have to go to a doctor with no license conditions. He's less definitive about what will happen for patients who have been using their application forms to obtain medical marijuana in lieu of an actual card, as they're authorized to do if there's a delay of more than 35 days. But he believes the entire backlog of applications will be eliminated by year's end.
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In the past, the department of health has been sanctioned for making new rules without getting proper public input -- most notably when Judge Larry Naves disallowed a new caregiver definition last November. The Cannabis Therapy Institute charges the health department with doing the same thing this time around. To that, Salley says the Board of Health will formally address the issue at a future meeting, probably early next year -- and he points out that the advisory committee meeting on October 18 was open to the public.
Speaking of which, Dean plans to attend the next advisory committee session, slated for November 10, to dispute the health department's decision. It appears to be the only forum for her to express her displeasure. Meanwhile, patients who've waited months for their licenses are in the position of starting over -- and Dean says clinics like hers can't afford to do new examinations for free, especially given that some of the patients she saw are scattered across Colorado. She notes that she even did some recommendations by video-conference.
At this point, Dean seems resigned to the thought that she'll no longer be able to write medical marijuana recommendations, but she still feels the health department's reasoning is faulty -- and she's highly critical of the way the office implemented the change. In her words, "The way they've handled this is abhorrent to me."
More from our Marijuana archive: "Live blogging the Denver District Court pot hearing."