Op-Ed: New rules coming into force on January 1 will restrict access to medical marijuana

Martha Montemayor, Director of Cannabis Clinicians Colorado, submitted the following statement:

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

We ask for your help in delaying the implementation of House Bill 21-1317 on the regulation of marijuana for safe consumption until serious legal issues with the bill are dealt with 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 and challenged 25 significant violations of the state of Colorado, 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 case as plaintiffs, as HB 1317 will force them to violate all of the above as well as Colorado Medical Practice Act, state and federal law on controlled drugs, their Colorado medical licenses and their DEA licenses to continue to care for their patients. On 3 August, the plaintiffs filed a motion for a preliminary injunction before the courts, requesting that the implementation of HB 1317 be postponed until the court has ruled on the constitutionality of the law. Unfortunately, no decision has been made yet.

We ask the Governor to advise the Attorney General’s office to ask the court to accede to the plaintiff’s claim for interim injunction in Wann v. Polis et.al. so that legal issues can be decided before the implementation of the law.

At the hearing in the Colorado Board of Health Emergency Rulemaking related to HB 1317 on December 15, Board President Patricia Hammond acknowledged the conflict between the new legislation and the Medical Practices Act and expressed strong reluctance to implement the new rules. At the hearing, board member Raymond Estacio said, “I can not think of any diagnosis or condition where I would need a second opinion to treat my patient.” Laura Lasater added that it is a matter of social justice to require previous medical records as poor people who want to try medical marijuana will be shut out. “If you’s sixty years old without health insurance and can not remember the name of the doctor who diagnosed your arthritis eight years ago, medical marijuana is now out of reach,” she said.

Concerned about the negative impact the new rules will have on patients, Hammond urged members of the health department who were uncomfortable with the wording of the rules and doctors who care for medical marijuana patients to contact the courts and / or lawmakers as soon as possible. That’s why I’m writing to you today.

Here are a few of the many possible direct injuries to patients, doctors and the public that were raised by stakeholders at the meeting if HB 1317 enters into force on 1 January 2022:

Physicians specializing in medical marijuana will be deprived of their right to diagnose their own patients. The new law says patients must have records from a former doctor to see a medical marijuana doctor. That law on medical practice currently determines a provider’s right to diagnose according to their license type, not according to a treatment they may recommend. From January 1, only patients rich enough to have a history of well-documented care will be able to use medical marijuana. Patients who have not been able to afford consistent care, who do not have health insurance, who lack computer skills, or who cannot remember the name of the doctor they saw five years ago, must now pay for another doctor’s visit for a diagnosis, in addition to the medical marijuana evaluation.

Doctors will be forced to break 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, as of January 1, medical marijuana physicians 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 to avoid breaking the medical practice law, up to 88,000 patients could lose access to care over the next year.

HB 1317 requires physicians to provide patients with all the information a person needs to call a fraudulent prescription to a pharmacy. Paper prescriptions for all other medicines are taken by the pharmacist when they are full. The new law requires the patient to bring a signed, printed copy of the provider certificate for an entire year.

In addition to the above damages, the Colorado Department of Public Health and Environment (CDPHE), which operates the Colorado Medical Marijuana Registry, stated at the urgent hearing that the Medical Marijuana Registry (MMR) does not have sufficient revenue to implement HB 1317 from January 1, 2022. The MMR is also pursuing an extension of the appropriations outlined in the bill, which allows for system upgrades and hiring.

Should HB 1317 continue without delay, approximately 7,000 current medical marijuana patients with expanded herb numbers and approximately 3,500 patients aged 18-20 will immediately need new documentation from their physicians on January 1, 2022 to continue receiving their medication. If CDPHE lacks the resources to implement the bill on January 1, then what happens to these patients?

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

Martha Montemayor CNC
Manager, Cannabis Clinics Colorado

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