|Photo: Cannabis Therapy Institute|
|The MMED's new badge and logo. Whoever thought they'd see a law enforcement badge with the words "medical marijuana" on it? Just in case we forget how they look at medical marijuana patients and providers, it has 'CRIMINAL' right up at the top and center.|
The rule-making was necessary to implement HB 10-1284, a bill passed by the Colorado Legislature in 2010 which created Medical Marijuana Centers (MMCs), which is what legislators there call dispensaries.
The MMED concluded two days of rule-making hearings on January 28, taking testimony on the new dispensary rules. Even though the new rules will affect hundreds of dispensary applicants, fewer than 10 MMC applicants testified at the hearings.
|Graphic: Cannabis Therapy Institute|
Only about 60 people attended the hearing on the first day, and fewer than half of them testified. Only a small handful of people testified on the second day, according to the Cannabis Therapy Institute, a Boulder-based patient advocacy organization.
Most of those who testified were patients concerned about privacy issues, according to CTI. The new rules give the MMED the authority to start collecting patient information through a complicated database and surveillance system that will monitor marijuana "from seed to sale" and alert the MMED when a patient tries to buy more than two ounces of cannabis.
CTI Petitions Department of Revenue for Emergency Rules
|Hearing at the Medical Marijuana Enforcement Division, Colorado Department of Revenue, Jefferson County Justice Center, January 27, 2011|
At the hearing, the Cannabis Therapy Institute made two petitions to the Medical Marijuana Enforcement Division of the Colorado Department of Revenue (DoR) regarding patient privacy.
To read the emergency rules petitions, click here.
The first of CTI's two emergency petitions was directed at protecting patient privacy. The proposed new rule reads as follows:
Proposed Emergency Rule #1Because the rights of patient privacy are guaranteed by Article XVIII, Section 14 of the Colorado Constitution, be it hereby declared that the Medical Marijuana Enforcement Division (MMED) of the Department of Revenue's rules regarding the "sales, manufacturing and dispensing of medical marijuana" (1 CCR 212) be amended by the inclusion of the following new section:43.3-xxx Patient Privacy Regulations(2) The MMED shall not require Medical Marijuana Centers to photography, videotape, duplicate or in any other way record any patient identifying information, including but not limited to their faces, their CDPHE Registry ID cards or their photo IDs.(2) The MMED shall not require Medical Marijuana Centers to keep patient identifying information. MMCs will be required only to check a patient's CDPHE Registry ID card for validity on its face and they shall not be required to photograph, videotape, duplicate or in any other way record any patient identifying information.
The second emergency rule dealt with the fact that the rule-making process itself was flawed because it did not comply with Colorado's Open Meetings Law. Specifically, CTI asserted that the DoR had failed to comply with CRS 24-6-402 (2) (a) which requires that "all meetings of two or more members of any state public body at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times."
In July 2010, the Medical Marijuana Enforcement Division formed the "Medical Marijuana Workgroup," a 25-person advisory committee composed of industry and government members, to give input on the new rules needed to implement HB 10-1284. The Workgroup members became the "stakeholders" referred to in the proposed rules. They were chosen without any public input.
The MMED originally planned to hold their "stakeholder" meetings in private, but after pressure from patient advocates and the press, agreed to hold the meetings in public with proper notice.
From August to December 2010, the "stakeholders" had a handful of public meetings. At their second public meeting, the MMED created several sub-committees of the workgroup.
From September through December 2010, these subcommittees met repeatedly outside of the public meetings, in private, to discuss public business. At each of these private subcommittee meetings, the "stakeholders" developed medical marijuana policy advice that was incorporated into the MMED's new proposed rules.
The public was not allowed to attend these private subcommittee meetings, in violation of CRS 24-6-402 (2) (a).
The MMED has claimed in the past that the workgroup stakeholders did not formally give advice on the rules. However, the "stakeholders" were referred to 12 times in the 99 pages of proposed rules as having had an effect on the final version of the rules.
To remedy the situation, CTI proposed an emergency rule that would create a permanent Medical Marijuana Advisory Committee to advise on rule-making. The members of the MMAC would have strict term limits and a more open selection process.
The first task of the new committee would be to hold a public meeting where they would review the draft rules that are currently under consideration.
"CTI felt it was important to address the lack of transparency in the rule-making process and create a permanent advisory committee that at least had the appearance of representing more than a handful of industry special interests," the group said in a press release.
What You Can Do
Email public comments: You can send public comments on the rules up until 5 p.m. on February 11, 2011.
To read the rules on the DoR website, click here.
Send comments to: MMEDRulecomments@dor.state.co.us
CTI asks that you send them a copy of your comments as well: firstname.lastname@example.org
The new Department of Revenue rules related to video surveillance and tracking of patient purchases violate the patients' right to confidentiality guaranteed in Article XVIII, Section 14 of the Colorado Constitution.