CDPHE Hearing was a hot mess!

Today's Colorado Department of Health and Environment's meeting to repeal their definition of "caregiver" was a hot mess.

I conferenced in 10:30 and nothing happened but static and echoes for 45 minutes. When the meeting finally began, someone conferenced in put their phone on hold with their muzak playing for 10 minutes. Because those conferenced in could be heard by the Board, the Board muted us out for about 10 minutes and we couldn’t hear anything. When we were finally able to hear what was going on, the Board proposed and seconded the motion to repeal the July 20th change in definition to comply with Clendenin.

No public comment was permitted. When Rob Corry tried to chime in, the Board President shut him down and exercised his “discretion” not to allow public comments. When Rob tried to continue to get his objections on the record and cite relevant law permitting the public to speak, I was told the police approached him (Rob, can you confirm this?) Last I heard was Rob stating his intentions to file a civil suit and the Board approved the motion and the July ruling was repealed with a December hearing date for public comment.

Here is the link to the release and I will post it below.

http://www.cdphe.state.co.us/release/2009/110309c.html

FOR IMMEDIATE RELEASE

Tuesday, November 3, 2009

Board of Health Repeals Medical Marijuana Rule Allowing Primary Care-Givers to Solely Provide Medical Marijuana.

DENVER – Today the state Board of Health, in an emergency rulemaking hearing regarding medical marijuana, repealed its July 20 rule that adopted a definition of the “significant responsibility” that a caregiver has for a medical marijuana patient.

The board took action today to avoid conflict with the Oct. 29 Colorado Court of Appeals decision, People v. Clendenin, which ruled that for a person to be a primary caregiver as defined under Colorado Constitution Article XVIII, Section 14, the person must do more than simply provide medical marijuana to a patient with a debilitating medical condition.

In the board’s July ruling – which became effective Aug. 30 – the board adopted a rule that defined “significant responsibility for managing the well-being of a patient” as “assisting a patient with daily activities, including but not limited to transportation or housekeeping or meal preparation or shopping or making any necessary arrangement for access to medical care or services or provision of medical marijuana.”
The board determined that immediate repeal of this language regarding medical use of marijuana was imperative to comply with state law and the Colorado Constitution.
Jim Martin, executive director of the Colorado Department of Public Health and Environment, said, “Today the board took necessary action to eliminate any conflict between the Colorado Constitution as interpreted and applied by the Colorado Court of Appeals and the board’s rules regarding the medical marijuana program. It is my hope this will be one step toward clarifying the allowable medical use of marijuana in Colorado.”

The Court of Appeals’ decision in Clendenin did not directly address the board’s rule, which was adopted after the defendant’s criminal trial. However, the definition of “significant responsibility” in the Board of Health’s Medical Use of Marijuana Regulation 2A(iii) was in conflict with the Court of Appeals’ interpretation of the constitutional definition of primary caregiver. The Court of Appeals specifically ruled that “the act of supplying marijuana for medical use, by itself, is insufficient to constitute significant management responsibility for a patient’s well-being, and consequently is insufficient to constitutionally qualify a person doing so as a “primary caregiver.”

By adopting this emergency repeal of the definition of “significant responsibility,” the rules avoid conflict with the Court of Appeals ruling regarding the constitutional provisions. This action was necessary to eliminate the confusion created by having two separate, conflicting standards for people attempting to comply with state law, and to preserve public health, safety and welfare.

The board will consider a permanent rule on this matter at its Dec. 16 meeting.