Open letter to Attorney General Phil Weiser and Governor Jared Polis –

We are asking you for help delaying the implementation of House Bill 21-1317 Concerning the Regulation of Marijuana for Safe Consumption until serious legal issues with the bill are addressed by the courts.

The bill was signed into law June 24, 2021. On July 1st, 2021, medical marijuana patient Benjamin Wann sued the State of Colorado, challenging 25 significant breaches of the Constitution 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 MD and David Gray MD joined the suit as plaintiffs as HB21-1317 will force them to violate all of the above plus the Colorado Medical Practices Act, state and federal Controlled Substances Act, their Colorado medical licenses, and their DEA licenses to continue caring for their patients. On August 31st, 2021, the plaintiffs filed a Motion for Preliminary Injunction with the courts asking that implementation of HB21-1317 be delayed until the court has ruled on the constitutionality of law. Unfortunately, no ruling has yet been made.

We are asking the Governor to advise the Attorney General’s office to ask the court to grant the Plaintiff’s Motion for Preliminary Injunction in Wann V. Polis Et Al so that legal issues can be decided before the law is implemented. 

At the Colorado Board of Health Emergency Rulemaking hearing related to HB21-1317 on December 15th, Board of Health President Patricia Hammond RN recognized the conflict between the new legislation and the Medical Practices Act and voiced strong reluctance to implement the new rules. Board member Raymond Estacio MD said at the meeting “I can’t think of any diagnosis or condition where I would need a second opinion to treat my patient.” Laura Lasater MD says requiring previous medical records for all is a social justice issue where poor people who want to try medical marijuana will be shut out. “If you’re 60 years old with no health insurance and can’t remember the name of the doctor who diagnosed your arthritis 8 years ago, medical marijuana is now out of reach.”

Worried about the negative effect the new rules will have on patients next month, Hammond urged Board of Health members uncomfortable with the rulemaking and doctors caring for medical marijuana patients to get in touch with the courts and/or lawmakers as soon as possible.  That’s why I am writing you today.

Here a few of the many possible direct harms to patients, physicians, and the public, raised by stakeholders at the meeting should HB21-1317 go into effect January 1, 2022:

1. Doctors specializing in medical marijuana will be stripped of their right to diagnose their own patients. The new law says patients must have records from a previous doctor to see a medical marijuana doctor. The Medical Practice Act currently determines a provider’s right to diagnose by their license type, not by a treatment they may recommend. Starting Jan 1, 2022 only patients wealthy enough to have a history of well-documented care will be able to use medical marijuana. Patients who haven’t been able to afford consistent care, who don’t have health insurance, who lack computer skills, or who can’t remember the name of that doctor they saw 5 years ago will now have to pay for a second doctor visit for a diagnosis in addition to the medical marijuana evaluation.
 

2. Doctors will be forced to violate 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 HB21-1317 mandated Provider Certification includes the full DEA list of dispensing instructions. Therefore, starting Jan 1, medical marijuana doctors 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 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 Act, up to 88,000 patients can lose access to care over the next year.
 

3. HB21-1317 requires doctors to give patients all the information someone needs to call in a fraudulent prescription to a pharmacy. Paper prescriptions for all other drugs are taken by the pharmacy when filled. The new law requires the patient to carry a signed, printed copy of the Provider Certification with them for a full year.

In addition to the above listed harms, the Colorado Department of Public Health and Environment (CDPHE) which runs the Colorado Medical Marijuana Registry stated in the Emergency Rulemaking (highlighting is from original CDPHE document):

The Medical Marijuana Registry (MMR) does not have adequate revenue to implement House Bill 21-1317 as of January 1, 2022.  MMR is also pursuing an extension of the appropriations outlined in the bill that allow for system upgrades and hiring.

Should HB21-1317 proceed without delay, approximately 7,000 current medical marijuana patients with extended plant counts and roughly 3,500 patients age 18-20 will immediately need new documentation from their doctors on January 1, 2022 to continue getting their medicines.  If CDPHE lacks the resources to implement the bill January 1, what happens to these patients?

Again, we ask the Attorney General’s office to ask the court to grant the plaintiff’s Preliminary Injunction in Wann V. Polis Et Al so that legal issues can be decided before the law is implemented. 

Sincerely,