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The Colorado Department of Public Health and Environment (CDPHE) is proposing new rules for the state’s medical marijuana program that would force patients who shop at Medical Marijuana Centers (MMCs) to provide confidential medical information to the Department of Revenue to be stored in a new non-confidential database that is open to all law enforcement. The proposed rules also would limit caregivers to serving no more than 10 patients.
As part of the official rulemaking procedure, CDPHE is required to solicit public comment on the proposed rules. The Board of Health is the regulatory authority regarding rulemaking, so they will preside over the hearing on Sept. 16 and have the final vote on the proposed rules.
Below is a summary of the major issues that patient advocates have with the proposed rules. At the end is a sample letter and email addresses so that you may submit your public comment on these proposed rules.
*PROPOSED RULES TO BE ADDED TO CCR 1006-2 OPPOSED BY PATIENTS AND ADVOCATES*
1) CDPHE’s proposed rules force patients to g ive medical information to Department of Revenue. The CDPHE proposes rules that would let them stop collecting patient Medical Marijuana Center (MMC) designations and patient plant counts as part of the confidential Registry. Instead, the CDPHE says that patients who shop at MMCs will be forced to use the Department of Revenue’s new non-confidential database and tracking system to track their MMCs and plant counts. There are NO CONFIDENTIALITY REQUIREMENTS whatsoever for the DOR’s handling of this information. The DOR has always admitted that they regularly share data from MMCs with state, local and federal law enforcement. Now confidential patient medical information will be part of the DOR’s data collection for the first time.
2) CDPHE’s proposed rules limit caregivers to serving no more than 10 patients. This is unconstitutional, as Article XVIII, Section 14 of the Colorado Constitution (Am. 20), contains no limits on the number of patients a caregiver can serve. Amendment 20 contemplated a method of cannabis distribution handled primarily by caregivers, not by MMCs. MMCs were created by HB 10-1284 in 2010, a state statute whose authors admitted it was designed to destroy the caregiver model.
This new rule is targeted at only 4 people. According to the CDPHE rulemaking packet, only 4 out of 2,896 caregivers that have voluntarily registered with the CDPHE have more than ten patients. That means these proposed caregiver rules are targeted at 0.001% of the caregivers that have voluntarily registered. Eliminating caregivers will harm patients by forcing them to purchase medicine at Medical Marijuana Centers. The caregiver model has worked well without problems for over 14 years in Colorado. If these new rules are enacted, patients will be harmed when their caregivers are eliminated. MMCs are often more expensive, have lower quality medicine, and have fewer varieties and preparations of medicines than those provided by caregivers. Also, MMCs are banned in many locations, including almost all of eastern Colorado and a good portion of the Western Slope. These proposed rules will put undue hardships on patients, forcing many to travel hundreds of miles to obtain lower quality medicine at a higher price.
3) CDPHE’s proposed rules require patients to register their caregivers with the CDPHE. Proposed new Regulation 2 (2) (a) requires patients to register their caregivers with the CDPHE. There is no Constitutional requirement for caregiver registration under Amendment 20. Once again, the CDPHE seeks to over-step its Constitutional authority.
In addition, the proposed rules to register caregivers through the CDPHE contain no provisions for confidentiality, effectively creating a list of cannabis cultivators that is open to law enforcement. Since marijuana is a violation of federal law, this registration requirement violates the U.S. Constitution Fifth Amendment and the Colorado Constitution Article II, Section18, which both protect citizens from self-incrimination.
4) CDPHE proposed rules illegally use over-collected patient fees to pay for the Colorado Medical Marijuana Research Grant Program. Article XVIII, Section 14 of the state Constitution requires that patient fees can only be used to pay for “administrative costs” of maintaining the confidential Medical Marijuana Registry (MMR). According to the state Auditor’s report in 2013, the CDPHE had a $12 million surplus from over-collected patient fees and was failing to keep the Registry confidential. The proposed Colorado Medical Marijuana Research Grant Program is clearly not an “administrative cost” of maintaining the Registry, therefore the proposed rules creating it should be rejected. Patient money should be returned to them. Patients can voluntarily choose to contribute to a research program, but to withhold their over-collected fees is unconstitutional.
5) CDPHE did not been adequately notify patients of the proposed rulemaking hearing. The CDPHE has consistently failed to adequately inform stakeholders about the changes in medical marijuana Registry rules.
The fact that surveys about these issues generated only 129 responses proves that patients do not know about these proposed changes. According to Attachment B, page 6 of the rulemaking packet (Stakeholder Survey Responses & Comments), the survey the CDPHE posted on their website for 7 weeks only had 129 respondents. There is no breakdown of how many of the respondents were actually patients or caregivers on the Registry, but even if they all were, it would only represent 0.0005% of the 250,000+ current and former patients and caregivers on the Registry.
On page 18 of the rulemaking packet, CDPHE admits that emails were only sent to 580 “contacts”. Most of these “contacts” are not patients. Many are government officials and law enforcement.
In 2007, patients withdrew a lawsuit against the CDPHE on the stipulation that the CDPHE agreed to inform patients of all future rulemaking hearings. In LaGoy v Colorado, Denver District Court Judge Larry Naves ruled that the CDPHE had not provided adequate notice of a rulemaking hearing.
On November 15, 2007, the Court signed a joint stipulated Order that settled all claims in this case. The Court’s Order/settlement of November 15, 2007 provided in relevant part that: (3) The Colorado Department of Public Health and Environment shall provide notice to all state-registered medical marijuana patients, caregivers, and the parties to this action of any meeting to discuss possible policy changes or regulatory changes to the Colorado medical marijuana law when such notice is required by the Colorado Open Meetings Act, C.R.S. 24-6-401 et seq. and/or the Administrative Procedures Act, C.R.S 24-4-101, et seq.
Despite repeated requests by patient advocates, and despite Judge Naves’ court order, CDPHE has consistently refused to notify patients by mail or email of any rulemaking hearings, surveys or requests for input.
6) The caregiver system will be essential if HB 10-1284 is repealed. House Bill 10-1284, which created the Medical Marijuana Center (MMC) model, is scheduled to be repealed (sunset) in July 2015.
If HB10-1284 is allowed to sunset, MMCs will be eliminated and forced to convert to A64 Retail Marijuana Stores. This will make the right of caregivers to serve multiple patients even more important than it is now.
7) The proposed rules violate Equal Protection rights. The proposed rules treat medical cannabis patients like second-class citizens. Other medical patients can use whatever medicine they need from any provider, but medical cannabis patients are discriminated against. Click here to read CTI/PCRLP official comments regarding these proposed rules. Click here for complete rulemaking packet and agenda.
You can help by taking action. You can send attend the hearing if you live in the Colorado area. It take place tomorrow, September 16th, 2014, in the Colorado State Capital in Denver, Colorado. You can RSVP to attend at the Facebook page here.
Colorado Board of Health
Rulemaking Hearing for 5 CCR 1006-2, Medical Use of Marijuana
Tues., Sept. 16, 2014
Time: 8:30 a.m.
Old Supreme Court Chambers
State Capitol Building – Second Floor
200 E. Colfax Ave., Denver, CO, 80203
If you’re not in Denver or Colorado but would like to help, you can still send an email to the Colorado Department of Health regarding the proposed changed. The suggested text for the email is:
Dear Board of Health:
Please accept this letter as part of the official rulemaking record concerning proposed Amendments to 5 CCR 1006-2, Medical Use of Marijuana, with a rulemaking hearing set for September 16, 2014 at 8:30am at the State
I strongly oppose many of these rules.
I oppose the proposed rules that would force patients who shop at MMCs to become part of a non-confidential database run by the Department of Revenue. Patient confidentiality is the most important part of any medical
marijuana program. The DOR has no provisions for any patient confidentiality in their data collection and regularly shares data from MMCs with state, local and federal law enforcement.
I oppose the proposed rules that would limit caregivers to serving 10 patients. Caregivers are the only model of cannabis distribution protected under the Constitution. Medical Marijuana Centers are only protected by
statute, and that statute is set to “sunset” (be repealed) in July 2015. If all MMCs close next year when HB 10-1284 is allowed to sunset, patients will need more caregivers than ever.
I oppose the CDPHE’s proposed rules that require patients to register their caregivers with the CDPHE. This is beyond the scope of the CDPHE’s mission to maintain a confidential Registry of medical marijuana patients and
violates the caregiver’s Fifth Amendment right against self-incrimination.
The proposed rules treat medical cannabis patients like second-class citizens and do not provide equal protection under the law. Other medical patients can use whatever medicine they need from any provider, but medical
cannabis patients are discriminated against, even though medical cannabis is the only medicine protected by the Constitution.
Finally, I believe the CDPHE has not done an adequate job of reaching out to stakeholders who are affected by these rules. CDPHE needs to do more to notify patients and caregivers about rulemaking hearings.
Taking a few moments to send an email could sincerely help in the effort to keep patient and caregiver records confidential and will help show the public supports cannabis users and their right to privacy and safe, legal access.
For previous Ladybud articles about Colorado and legalization of marijuana in the state, click here.
Photo Credit: SparkCBC under (CC BY-SA 2.0) via Flickr