REGULATING CAREGIVERS

State Should Closely Monitor Those Who Assist Medical Pot Patients

Denver District Judge Larry Naves made the right call when he
recently ordered the Colorado Department of Public Health and
Environment to stop enforcing a regulation that limited patients'
ability to obtain medical marijuana.

Naves overturned a 2004 health department policy that said any
caregiver listed with the state's medical marijuana registry can
provide pot to no more than five patients. We don't know if five is
the right number - nor did the judge offer any guidance - but the
department set that limit in secret with no public comment, and
violated the state's laws that govern how regulations are developed.

If the department seeks to restrict how many patients a caregiver can
serve, Naves said it must undertake a public process of rulemaking
that follows the state's open meeting law and Administrative Procedures Act.

That's what the department should have done in the first place. Naves
came to the proper conclusion.

Medical marijuana proponents are mistaken, however, if they think the
ruling vindicates their goal to allow providers to service any number
of patients. The department could well go through the administrative
process and decide that, say, a three-patient limit would satisfy the law.

Here's why. Amendment 20, which passed in 2000, allows physicians to
recommend marijuana to patients with certain chronic illnesses. And
it protects patients and their primary caregivers from prosecution if
they obtain the drug.

But the amendment states that any primary caregiver must be older
than 18 and have "significant responsibility for managing the
well-being of a patient who has a debilitating medical condition."

In other words, the state should enact regulations to monitor
caregivers. And given the "significant responsibility" language in
the amendment, five patients sounds reasonable if not generous.

Indeed, department spokesman Mark Salley told us that when state
officials were discussing the limit, they could find no caregiver who
listed more than three patients under his watch.

The amendment does not permit the marijuana dispensaries that have
been established in California; in fact, every other state including
Colorado that has authorized medicinal use lets patients and primary
caregivers possess a few marijuana plants. They can't get cannabis
from any other source.

The purpose of the law was to provide a limited new avenue of relief
for patients with chronic, severe pain. Even so, the group Sensible
Colorado has claimed a major victory.

Sensible Colorado's Executive Director Brian Vicente told us his
group believes caregivers should be able to serve an infinite number
of patients. And that the group would be back in court if the
department sets any limits on caregivers - even if it does follow the
administrative procedures mandated by the judge's order.

Without capping the number of patients caregivers can legally serve,
it would be much more difficult to enforce the limited allowances
afforded medical marijuana.

Perhaps that's what medical marijuana advocates want, but it's not
the amendment voters approved. And if a challenge to properly
authorized regulations on caregivers winds up in court, we trust that
judges will reject it.