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Sunday, December 15, 2019

Doctors suspected of improper marijuana prescriptions lose battle against Colorado health department

State Court

By Charmaine Little | Nov 20, 2019


DENVER (Legal Newsline) – On Nov. 12, the Supreme Court of Colorado ruled against a group of doctors whom the Colorado Department of Public Health and Environment (CDPHE) referred to the Colorado Medical Board over suspicions that they were not properly certifying patients for the use of medical marijuana.

The Supreme Court affirmed a Court of Appeal's ruling against the doctors over their complaint that the CDPHE’s referral to the board was void since the CDPHE didn’t comply with the required procedures.

The Supreme Court disagreed with the doctors’ (identified as John Does) claims that the CDPHE’s referral was void because the referral policy created didn’t comply with the Colorado Open Meetings Law (OML). 

“The Supreme Court now concludes that an entire state agency cannot be a ‘state public body’ within the meaning of the OML and therefore the doctors have not established that the CDPHE violated the OML,” wrote Justice Richard L. Gabriel.

The doctors also said the referral policy and the actual referrals to the board launched final agency actions via the State Administrative Procedure Act (APA). But the Supreme Court determined that the referral policy is considered an interpretive regulation, not an actual legal rule. Considering this, it’s an exception to the APA, so the CDPHE didn’t have to comply with the APA’s guidelines, the court rules.

While the doctors claimed that the CDPHE failed to comply with procedures detailed, making the referral policy and the referrals irrelevant, the Supreme Court countered that and said that actually referring the doctors to the board doesn’t ignite a final agency action, so it’s not up for the APA’s review.  

The CDPHE turned its eye to the doctors in this case after a 2013 audit from the Colorado State Auditor evaluated the CDPHE’s method for delivering red cards that gave people access to medical marijuana. The auditor in turn suggested the CDPHE team up with the board to possibly identify doctors that were making inappropriate recommendations; which later birthed the referral policy. 

After evaluating the guidelines of the policy (such as whether a doctor recommended more than 30 percent of its caseload for medical marijuana, and if more than a third of their patient’s caseload were under 30), the CDPHE referred the doctors to the board for investigation. The doctors later filed their lawsuit.

The lower court dismissed the claims against the board but determined the CDPHE violated the OML and the APA. The appeals court settled the score and ruled against the doctors, leading to the doctors asking for certiorari, which the Supreme Court granted.

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