A new Colorado law aimed at keeping young people from buying and reselling highly potent THC concentrate has sparked concerns from doctors who recommend medical cannabis about how the new provisions could jeopardize their ability to practice medicine.
The law, which has some doctors saying they have stopped working with medical cannabis patients altogether, requires that patients obtain written “certifications” from doctors in order to access marijuana concentrates over a new daily limit. Doctors must include new information on those forms like a patient’s address, maximum THC potency level, dosage, directions for use and a daily authorized quantity.
Previously in Colorado, doctors would recommend cannabis rather than prescribe it, in keeping with a 9th U.S. Circuit Court of Appeals ruling that protects a doctor’s right to “recommend” and discuss the health benefits of cannabis as part of a doctor-patient relationship.
But the new requirements for concentrates in House Bill 1317, which was approved by the legislature last year, are more akin to writing a prescription for cannabis, which remains illegal under federal law, said Dr. Laura Lasater. Doctors must maintain an active certification with the Drug Enforcement Administration to practice medicine.
“Cannabis is still considered a Schedule I drug,” said Lasater, who left her job at a medical cannabis clinic in Denver in protest over the new rules. “I could lose my DEA license by trying to write the specifications (the state) is now requiring.”
Schedule I drugs are defined by the federal government as having no accepted medical use and include heroin, LSD and peyote.
Doctors have also cited provisions under the state’s Medical Practices Act that prohibit them from “administering, dispensing or prescribing any habit-forming drug or any controlled substance.”
It is unknown how many doctors have decided to stop working with cannabis patients. There are 25,857 physicians currently licensed to practice medicine in Colorado. By comparison, just 326 providers — which can include dentists, advanced nurse practitioners and physician assistants — wrote recommendations for cannabis patients last year.
At least one clinic has closed amid concerns over the new law.
Vibrant Health, a Colorado Springs clinic that saw 2,000 patients a year, shuttered at the end of January after two of its three doctors said they were no longer comfortable working with medical cannabis patients.
“We don’t know for sure what could happen, but we just weren’t comfortable with the prescriptive nature of the new physician forms,” said Jessica Hogan, owner of Vibrant Health and a longtime cannabis advocate in Colorado. “There are other clinics that are definitely staying open that we are referring (patients) to, that are willing to risk this to see how it pans out.”
Other clinics are seeing doctors resign.
A physician for Cohen Medical Centers, a clinic in Denver, resigned at the end of 2021, citing the implementation of the law in a letter to the Colorado Attorney General’s Office. Another who worked in communities including Aspen, Rifle and Glenwood Springs is taking a sabbatical, citing the increase in coronavirus cases and the new law.
The state does not have current numbers for registered medical professionals who can write certifications. It may take months for data to reflect how many providers have stopped working with cannabis patients.
While many medical cannabis groups were strongly opposed to House Bill 1317, the measure passed the Colorado legislature with broad bipartisan support and was signed into law by Gov. Jared Polis.
The law is aimed at limiting illicit youth access to highly potent THC products, such as cannabis wax or shatter, which are heated into vapor and inhaled.
The legislation was pushed by parent groups concerned about teens or young adults obtaining medical marijuana cards to buy cannabis concentrates and then illegally reselling them to underage buyers. Some young people have reported experiencing anxiety, psychosis or other negative health effects after using high-THC products.
The judicial system could weigh in on the concerns from providers as part of an ongoing lawsuit, filed in July by Benjamin Wann, a 19-year-old medical marijuana patient with epilepsy, seeking to block the law from going into effect based on arguments that it violates state constitutional protections for medical marijuana patients.
A hearing to consider the legal action has not been scheduled.
House Speaker Alec Garnett, a Denver Democrat and one of the prime sponsors of House Bill 1317, declined to comment in detail on the concerns of physicians, citing the lawsuit.
“The law just took effect, and I haven’t heard these concerns,” Garnett said. “That said, we always evaluate legislation after it’s implemented, and we will do the same with this one. I’m monitoring this issue closely.”
Concerns about patient access
The changes have also sparked concerns that patient access to medical cannabis may suffer, especially for people living in rural areas, if the number of doctors willing to work in the field declines.
There were more than 86,000 Coloradans with active medical marijuana registrations as of December, according to state data.
The number of medical providers willing to work with medical cannabis patients is low because cannabis is still illegal under federal law, said Martha Montemayor, director of Cannabis Clinicians Colorado, a professional group that lobbied against the law and is backing the lawsuit challenging it.
Many insurance companies or health networks do not allow doctors to write cannabis recommendations, and malpractice insurance companies may refuse to insure a doctor or increase their premiums if they write recommendations, she said.
The law imposes new limits on how much concentrated THC products patients and recreational customers can buy. To enforce that cap, it requires the tracking of daily purchases made at medical dispensaries.
People aged 18 to 20 who are applying for a medical card for the first time, and all minors, must now see two providers from separate practices in order to obtain a medical marijuana card. People who already had a valid card prior to this year can keep their current cards.
Many doctors are continuing to write certifications that allow patients to receive a medical marijuana card. If a patient needs marijuana concentrates that exceed the daily purchase limit of 8 grams, they must get a separate approval from a doctor under the new law through a form that some doctors won’t sign.
Montemayor, who also owns clinics in different parts of the state, said this impacts patients with cancer, epilepsy and other conditions who use concentrated cannabis products and may want to stock up for several days or a month.
“The people who are really affected are not the people who live in Denver, Colorado Springs and Fort Collins. It’s people who live in places like Gunnison and Rifle,” Montemayor said. “Gunnison County is recreational only, it’s an hour and a half drive (to see a doctor).”
Autumn Brooks, a Clear Creek County resident who testified against House Bill 1317, is worried that a decrease in cannabis doctors will make it harder for people like her to get an appointment and drive up appointment and product costs. In 2020, Brooks’ 13-year-old son Raven began taking concentrated medical marijuana products to help his autism spectrum disorder after trying several pharmaceutical drugs.
After a few months on cannabis, Brooks said her son, who struggles with self-harm and aggression, was catching up in school and was no longer disrupting class with outbursts.
“It helped him become social,” she said. “He went from having no friends to being invited to stuff, and his bullies don’t mess with him anymore.”
The local dispensaries in Clear Creek County carry both recreational and medical marijuana products, but the stock is often geared toward recreational consumers with limited selection for patients.
She typically drove to Denver and Colorado Springs to stock up. The daily purchase limits on concentrated products mean she can no longer do that, Brooks said. After the bill passed, she decided to transition Raven off of cannabis to avoid changing his medication during the school year. Some behavioral issues have returned.
“I’ve called a couple providers; they aren’t taking anyone else,” Brooks said. “It’s kind of futile.”
The courts could weigh in
The family of Benjamin Wann, a 19-year-old medical cannabis patient who uses cannabis-derived products to control his severe epilepsy, filed a lawsuit in July challenging the law’s constitutionality.
Two doctors, Sharon Montes and David Gray, later joined the legal action.
The Colorado Attorney General’s Office, which is representing the state in the lawsuit, and Gov. Jared Polis both declined to comment on concerns from physicians, citing the ongoing litigation.
In a court filing, the state argued the new requirements for physician certifications are fully within the bounds of Amendment 20, the constitutional amendment approved by voters in 2000 that enshrined protections for medical marijuana in state law.
The state also argued Wann, Montes and Gray haven’t provided any evidence of a “credible threat of enforcement” against doctors by the federal government.
Steve Kotecki, a spokesman for the DEA, said the agency had not revoked any certifications in January as a result of the law and that the agency “does not review individual states’ marijuana policies or comment on state legislation.”
Lee Rasizer, a spokesperson for the state Medical Board, which oversees licensing and discipline, said the board “has no implementation authority and is unaware of any provisions that would violate the Medical Practice Act.”
Meanwhile, members of the Colorado Board of Health have raised concerns.
At a Dec. 15 meeting, members approved emergency regulations to codify the new law, but said they were voting reluctantly given the concerns from doctors.
“I know it’s a legal question, but it seems like we’re creating two conflicting regulations, potentially,” said Tom Butts, a member of the board who also serves on the board of the National Environmental Health Association.
Doctors serving medical marijuana patients have, until now, been loosely regulated. Hogan, the owner of Vibrant Health, said she agrees there should be more rules for providers. Her clinic asked for medical records and screened patients before they were booked for an appointment. But practices by other clinics “ruined it for the rest of us,” she said.
One of Hogan’s doctors, however, says she hopes the law will reduce the profit motive for bad actors in the industry. Dr. Margaret Gedde, who now lives out of state and cannot write certifications, still sees cannabis patients from Colorado for telemedicine consultations. Though she is unable to write certifications, Gedde said she would feel comfortable doing so under the new law.
“When I look at the extra information requested, to me it’s still not a prescription, it’s not even close,” Gedde said.
Montemayor is hoping for a resolution through the courts, but that could take months or years to resolve. Her doctors won’t be writing certifications for concentrates in the meantime.
“We are not doing the new certification form until a lawyer says it’s OK,” Montemayor said.
CORRECTION: This story was updated at 10:34 a.m. on Tuesday, Feb. 8 to reflect there are more than 86,000 medical marijuana patients in Colorado.