Is the state breaking its own MMJ rules?

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On Nov. 4, Laura Kriho with the Cannabis Therapy Institue sent the Colorado Department of Public Health and Environment an e-mail, saying that sources within the department have revealed to Kriho that the "CDPHE is denying applications for patients whose physicians have 'conditions' or 'restrictions' on their licenses."

The policy has reportedly resulted in the denial of more than 5,000 applications and the banning of 18 physicians for writing medical marijuana recommendations.

The problem?

As you know, Article XVIII, Section 14 of the Colorado Constitution (3) (d) states that "where the state health agency, within thirty-five days of receipt of an application, fails to issue a registry identification card or fails to issue verbal or written notice of denial of such application, the patient's application for such card will be deemed to have been approved."

It is your responsibility to issue approvals or denials in a timely fashion. Section (3) (d) of the Article XVIII, Section 14 was written to prevent the CDPHE from dragging out the application process. This means that any rejection notice that you send out after 35 days have passed is baseless. Because you failed to act in a timely fashion, the patient's application is "deemed to have been approved." A rejection notice after 35 days has no effect.

Interestingly, a comment has been left multiple times on our website today referring to this exact fact. User sarah1955 says:

I used Herbal Health Systems on Eagleridge Drive in Pueblo for my medical marijuana evaluation.

Just this week, I received a letter of rejection from the State of Colorado saying "this doctor is on restrictions placed on him by the medical board of Colorado."

When I called to get my money back, herbal health systems told me it was all "just a mistake" and that I would NOT get my money back and would HAVE TO PAY MORE for a new MMJ medical evaluation!

A message has been left with the CDPHE; this story will be updated accordingly. Here's the full text of the e-mail:

November 4, 2010

Dear CDPHE and Board of Health:

It has come to our attention that the Medical Marijuana Registry has enacted a new policy without going through the formal rulemaking procedure required by the Administrative Procedures Act. According to our sources, the CDPHE is denying applications for patients whose physicians have "conditions" or "restrictions" on their licenses.

Apparently, this new policy has resulted in the recent denial of over 5,000 patients from the Registry and has banned at least 18 physicians from writing medical marijuana recommendations.

As you know, Article XVIII, Section 14 of the Colorado Constitution (3) (d) states that "where the state health agency, within thirty-five days of receipt of an application, fails to issue a registry identification card or fails to issue verbal or written notice of denial of such application, the patient's application for such card will be deemed to have been approved."

It is your responsibility to issue approvals or denials in a timely fashion. Section (3) (d) of the Article XVIII, Section 14 was written to prevent the CDPHE from dragging out the application process. This means that any rejection notice that you send out after 35 days have passed is baseless. Because you failed to act in a timely fashion, the patient's application is "deemed to have been approved." A rejection notice after 35 days has no effect.

Furthermore, the CDPHE cannot ban physicians in good standing from giving medical marijuana recommendations without going through a formal rulemaking procedure, including public notice and comment.

In the notes from your Oct. 18 Medical Marijuana Advisory Committee meeting, there is a document that states:

"POSSIBLE PHYSICIAN REGULATIONS IN THE MEDICAL MARIJUANA REGISTRY PROGRAM I. Clarify that “in good standing”, as defined at § 25-1.5-106(2)(c), C.R.S., means a license that is not restricted and/or conditioned in any way."

This indicates that this issue will be considered for future rulemaking.

If it is your position that the "Medical Marijuana Advisory Committee" changed this policy, please provide the statutory authority for this committee to promulgate rules.

Please rectify this situation immediately by following the rules laid out in the State Administrative Procedures Act for promulgating new regulations. Please also issue apology letters to all the applicants who have been denied applications due to this arbitrary and capricious change in policy and inform them that their applications are "deemed approved."

Thank you for your attention.

Sincerely,

Laura Kriho
Director, Cannabis Therapy Institute

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