Home › Around the World › Colorado › Why all the confusion about waivers for caregivers from the CDPHE?

Why all the confusion about waivers for caregivers from the CDPHE?

By Rx MaryJane on April 17, 2015 • ( 2 )

I’ve heard some concerns about a section of the Caregiver Bill (SB15-014) that refers to the Colorado Department of Public Health and Environment (CDPHE) issuing waivers for caregivers serving more than five patients.

Page 9, lines 6-13

(8) Patient – primary caregiver relationship. (a) (I) A person shall be listed as a CULTIVATING OR TRANSPORTING primary caregiver for no more than five patients on the medical marijuana program registry at any given time; except that the state health agency may allow a primary caregiver to serve more than five patients in exceptional circumstances. In determining whether exceptional circumstances exist, the state health agency may consider the proximity of medical marijuana centers to the patient, AS WELL AS OTHER FACTORS.

The first thing to know is that this wasn’t some last-minute sneaky amendment, as some have suggested. This is language in current law. The only change is what’s in ALL CAPITALS. So this doesn’t give the CDPHE any more power than the have now.

Second, how this is interpreted depends on other language in the bill:

Page 5, lines 3-8

(e.5) “SIGNIFICANT RESPONSIBILITY FOR MANAGING THE WELL-BEING OF A PATIENT” MEANS THAT THE CAREGIVER IS INVOLVED IN BASIC OR INSTRUMENTAL ACTIVITIES OF DAILY LIVING. CULTIVATING OR TRANSPORTING MARIJUANA AND THE ACT OF ADVISING A PATIENT ON WHICH MEDICAL MARIJUANA PRODUCTS TO USE AND HOW TO DOSE THEM CONSTITUTES A “SIGNIFICANT RESPONSIBILITY”.

Notice that this is written in ALL CAPS? That’s because this is all new language, and very important language at that. I’ll get into why this makes a difference here in just a bit, but for those of you who don’t want to read any farther, suffice it to say that this language, coupled with the 99-plant limit also in the bill, pretty much makes waivers for exceptional circumstances unnecessary.

From the time Amendment 20 was passed, using the term “caregiver” along with defining what it means to have “significant responsibility” has created huge issues for the CDPHE who is charged with overseeing patients and caregivers. It would have been so much easier if the drafters of A20 had simply used a different term.

When it comes to public health, the term “caregiver” has a specific meaning. It’s someone who takes care of a patient’s daily needs like bathing, dressing, or going to appointments; typically a family member or home health aide. But when talking about medical marijuana caregivers, that definition just doesn’t fit. So all this time as a public health agency, the CDPHE has felt that their hands have been tied by this issue of how to define what it means for a caregiver to have significant responsibility for a patient’s care. This defining language fixes that.

Karin McGowan from the CDPHE has told me on numerous occasions that implementing this language will serve to untie their hands so that such close scrutiny of caregivers won’t be as necessary. I spoke with her on the phone at length yesterday to verify once again that this is their position.

How does this tie into the 99-plant limit?

The CDPHE doesn’t want to be in the business of scrutinizing applications and issuing waivers for caregivers. It’s a huge hassle and very time consuming. So as long as a caregiver doesn’t grow more than 99 plants, they can care for as many patients as are willing to sign them up. No more need for waivers. Anything over 99 plants is left up to law enforcement.

I distinctly remember the moment when this idea first started percolating. I was in a meeting with Dr. Wolk and Karin McGowan when talk about what was then a 36-plant limit in the proposed bill came up. Just to test the water, I suggested a higher limit of 99 plants based on the DEA felony limit of 100 plants. Dr. Wolk sat back in his chair and thought for a moment before suggesting that maybe with that limit in place they wouldn’t have to worry about the number of patients a caregiver has. As long as a caregiver grew no more than 99 plants, they could grow for as many patients as they want to. I was surprised later when I saw it in a redraft of the bill and that it was supported by the CDPHE. Oh the power of these little conversations with the right people.

Karin McGowan has reassured me numerous times that this is their position. She has been totally consistent with legislators, caregivers, doctors and others who have questioned her on this.

At this point, I have to take her at her word and trust that this will indeed be the position of the CDPHE moving forward. Once the Caregiver Bill is passed and signed into law, we’ll hold them to it.