Physicians Fight ‘Secret’|Policies on Medical Pot

     DENVER (CN) – Colorado uses secret and arbitrary thresholds to automatically force medical-board reviews of physicians who prescribe medical marijuana, eight doctors claim in court.
     The eight John Does challenge the “secret” nature of the Department of Public Health and Environment’s policies. They claim the only public policies on medical marijuana are that doctors must have a bona-fide relationship with the patient, must have a valid license in good standing, and must also keep thorough, accurate records.
     All eight Does say they complied with these standards. They seek nullification of the arbitrary triggers that could refer them to the Medical Board.
     The doctors sued the Public Health Department and its chief medical officer, the state registrar and director of the Medical Marijuana Registry, the executive directors of the states Department of Regulatory Agencies, and the Colorado Medical Board, on March 12 in Denver County Court.
     The doctors claim that the secret substandards that triggered referrals revolve around three thresholds: a doctor’s patient caseload, the number of plants they recommend, and the age distribution of the patients.
     So far, two referrals have been made to the Medical Board based on these substandards – one in January 2011 and again in June 2014, according to the complaint.
     The January 2011 referral involved five physicians for an “unnoticed policy,” involving the quantity of marijuana recommendations made by each doctor.
     Defendant Department of Public Health and Environment Chief Medical Officer Lisa Miller stated in a letter to the Medical Board that “these five physicians are recommending medical marijuana disproportionately compared to all doctors who are recommending medical marijuana,” according to the complaint.
     All but one of the physicians from this referral were disciplined, and their licenses restricted from evaluating medical marijuana patients, the complaint states. The board is still seeking to discipline the fifth physician.
     The June 2014 referral involved scrutiny of the physicians’ caseloads. The Department of Public Health stated that to determine whether to recommend a physician to the Medical Board it must “look at the physician’s caseload, the plant and ounce recommendations, and the percentage of patient caseload under the age of 30,” according to the complaint.
     The plaintiff physicians say they are concerned about their patients’ right to privacy. Two of the doctors claim that this month they received notice that the Medical Board intends to subpoena their patient records, in violation of the Colorado Constitution.
     The physicians seek specific, public guidelines on the medical marijuana certification process, and protection from unlawful subpoena of patient information.
     They say the Department of Public Health must follow the mandate set by the General Assembly – that rulemaking regarding the use of the confidential medical marijuana patient registry (particularly when this is used to refer a physician to the Medical Board) should be public.
     Defendant Miller wrote in a January 2011 letter cited in the complaint: “Although we believe the vast majority of physicians are recommending medical marijuana as a part of good medical practice, we believe there is also abuse taking place. We are, therefore, requesting that the Board investigate these physicians to determine whether or not their medical marijuana recommendations are being made consistent with the Colorado Medical Practice Act.”
     In a follow-up letter in February 20122, also cited in the complaint, Miller wrote: “We believe that it is reasonable to suspect that physicians who provide care to this relatively large number of patients are not able to have a ‘bona fide’ physician-patient relationship.”
     When addressing the matter of secret vs. public proceedings, the Department of Public Health has cited the deliberative process privilege, which grants it immunity as a branch of the executive government from any normal or civilian disclosures.
     The plaintiffs want to nullify the recommendations made by CDPHE to the Medical Board.
     They seek declaratory judgment that the defendants violated the Open Records Law and the Open Meetings Law, judicial review of agency action, an injunction, and a declaration that one Doe was referred to the Medical Board without reason or criteria. They also seek documents under the Open Records Law, particularly pertaining to the CDPHE treatment of the Medical Marijuana Program, including any secret policy decisions. And they want a cease and desist order to prohibit further referrals from CDPHE based on unlawful and arbitrary policies.
     They are represented by Carmen Decker.

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