The Evolution of the Caregiver Bill

By Rx MaryJane on February 18, 2015 • ( 3 )

Making public policy is a very challenging undertaking. No matter what your position on any issue may be, no matter how right you think you are, there are always those supporting opposing positions who think they’re just as right.

Everything is a negotiation. Sometimes you can take a hard stand and sometimes you have to collaborate and compromise. It’s rare that any one side of an issue gets everything they want. Sometimes all you can do is work to make a bad bill better. Damage control

Such is the process with SB15-014, commonly referred to as The Caregiver Bill.

Patients and caregivers have been under attack since the passage of Amendment 64 which legalized and taxed recreational marijuana. This became abundantly clear during the meetings of the Marijuana Revenue Interim Committee last summer when accusations arose regarding patients citing pain just to get a medical marijuana license and avoid paying taxes. The proponents of severely restricting caregivers used lost tax revenue as their rallying cry. They can’t say just how much revenue has been lost; they just know it has been.

That committee produced the first iteration of the bill that would be submitted to the General Assembly in the 2015 Session. (Caregiver Bill 1)

Fortunately, a medical marijuana friendly lobbyist had a chat with a member of the Interim Committee and pointed out the major flaws in the bill. Thanks to this advocacy, Sen. Irene Aguilar and Rep. Jonathan Singer decided to take over sponsorship of the bill and attempt to make it better. But no matter what, the bill was going to be introduced one way or the other.

And so the cleaned up version of the bill was introduced in January as SB15-014. (Caregiver Bill SB014_01)

Realizing that the bill still needed a lot of work, Senator Aguilar reached out to Cannabis Patients Alliance and others for help in understanding the important and valuable relationship between patients and caregivers. We talked with patients and shared their stories about successes and challenges they’ve had with caregivers. When questions came up regarding doctors, we invited recommending physicians into the conversation. When questions regarding what caregivers need and want arose, we invited caregivers from both the front range and rural areas into the conversation, including a representative of a local caregivers group. We kept in touch with attorneys and encouraged them to submit feedback and comments as well.

At the same time, we were getting pushback from the marijuana industry who see caregivers as direct competition that needs to be eliminated, and they were siding with law enforcement who believe caregivers are the source of diversion to other states. Having reasonable voices at the table to counter their arguements was critical.

We’ve come a long way, but the bill isn’t perfect. It likely never will be. (Caregiver Bill SB014_L_002)

We worked hard to get clarification on what “significant responsibility” means. This bill states that “the act of advising a patient on which medical marijuana products to use and how to dose them constitutes a “significant responsibility” for managing the well-being of a patient.” This has been an ongoing point of contention with some advocating that caregivers should be expected to fulfill similar functions as CNAs or home healthcare workers. That was an unreasonable expectation. We spent significant time explaining that caregivers have knowledge and skills beyond cultivation that are important to a patient’s welfare. This is now reflected in the language of the bill.

Industry and law enforcement wanted to force any caregiver growing more than 36 plants into the regulated system. It quickly became apparent that this was particularly untenable in areas of the state with bans and moratoriums in place. We invited caregivers from the Front Range and outlying areas to speak to Sen. Aguilar about what would or wouldn’t work for them. One caregiver has driven from Mesa County to Denver multiple times just to participate in the discussion. It was clear that if there had to be a limit, 36 sure wouldn’t be sufficient for most caregivers. Caregivers and patients pushed for the higher limit of 99 plants, just below the Federal felony limit of 100. But that limit needs to reflect actual plants being cultivated, not necessarily what is authorized.

The bill still includes requirements for transporting and cultivating caregivers to register their with the DOR. The idea is that if they register, stay within certain limits and have their paperwork on hand, law enforcement will leave them alone. Some caregivers see that as a good thing and support it.

It allows patients to choose a primary caregiver and assistants. This is particularly important for parents with children using medical cannabis. Colorado law requires the parent of a minor child to be their caregiver. This is a problem when the parent isn’t growing their child’s medicine themselves and needs the help of another caregiver. This bill addresses that problem.

Patients will have the option of registering their grow, but it will not be required. Some patients with high plant counts may want to take advantage of this option, but it is voluntary.

We continue to have concerns about maintaining the confidentiality of patients on the registry. The bill refers to “the minimum necessary information as allowed by the federal ‘Health Insurance Portability And Accountability Act.’ (HIPAA)” We’ve been told that the caregiver database will only tie patient registry numbers and plant limits to registered caregivers with no personally identifying information. This is meant to give law enforcement the ability to ping the system to verify a grow. It will also allow caregivers the ability to verify that a patient is still their patient and hasn’t switched to another caregiver or center. Do we trust them not to breach confidentiality? Not particularly.

It asks the Board of Medical Examiners and the CDPHE to develop policies regarding recommending marijuana for pain. Although we understand Senator Aguilar’s desire to have doctors be more “doctorly” (she is a doctor herself after all), we have significant concerns with turning this over to agencies that have no real understanding of the unique challenges involved in recommending medical marijuana. In the stakeholders meeting we suggested the guidelines apply to recommending marijuana in general and not be specific to pain. We also suggested including physicians who recommend marijuana, patients and caregivers in the policy-making process.

Testing is briefly addressed in the bill in a provision mandating a stakeholders group to explore testing options for medical marijuana not from the regulated system. In other words, testing for patients, caregivers and the public.

Although the current draft requires patients to get a waiver from the CDPHE if they want to grow more than 6 plants, that requirement will likely be stripped out of the final draft before the hearing. As far as Cannabis Patients Alliance is concerned, it’s a deal-breaker. It’s wholly unconstitutional and interferes in the doctor-patient relationship. Doctors, patients, caregivers and lawyers alike strongly objected to this provision.

In the end, affirmative defense is still intact. This is guaranteed by Amendment 20. Anyone can choose not to participate and go to court, just like they can now.

Is the bill everything we had hoped? No.

Is it better than where we started? Definitely.

Will it make everybody happy? Of course not.

Will it pass? That is the question.

We expect to see one more draft of the bill before it’s heard by the Senate Health and Human Services Committee next Thursday, February 26. Will it have these and other recommended changes? We shall see.

In the meantime, Cannabis Patients Alliance will continue to educate and advocate for safe, legal and affordable access to medical marijuana in whatever way works best for the patient, corner to corner.