Since Colorado voters legalized medical marijuana with a constitutional amendment back in 2000, the only constant in the industry has been change. Most recently, the role of caregivers has fallen under the scrutiny of legislators and the state Department of Public Health and Environment.
On June 15, the Colorado Board of Health passed a rule mandating that caregivers — those who grow medical marijuana for five or fewer patients — have a more involved role in their patients' lives. Now, in order for caregivers to have "significant responsibility" for managing the well-being of their patients, as required by the 2000 amendment, they must "regularly" assist them with "daily activities." As examples, the board suggests providing transportation, housekeeping or meal preparation, helping with shopping, or otherwise making arrangements for access to medical care.
Beyond that, the regulation doesn't get any clearer, leaving many to question what "regularly" actually means, and what else might fall under the scope of "daily activities."
"A lot of caregivers put a lot of time and effort into just growing the plants," says Tanya Garduno, president of the Colorado Springs Medical Cannabis Council. "And to have to expand onto providing other services without having a necessarily clear definition of what those services are, it's a real gray area."
Garduno says she believes the Department of Health officials, and some state legislators, don't really understand how difficult it is for caregivers to do the work of growing marijuana. "It's a full-time job," she says. "Plants never take a vacation."
Audrey Hatfield, founder and president of Coloradans 4 Cannabis Patient Rights, agrees with Garduno. And when she looks at what's happening on the state level, she sees people who have obvious misgivings about the mere presence of growers in the MMJ industry. The rules, after all, came at least partly as a response to law enforcement officials complaining that dealers of illegal drugs sometimes try to pass themselves off as caregivers.
"I think the state of Colorado would prefer that everybody grew their own," Hatfield says. "The problem is, not everybody can do that. It's not as easy as just putting some seeds in the dirt." (See "Nurturing nature" for more.)
Then there's the issue of whether the caregivers' additional responsibilities are appropriate, in and of themselves. Hatfield is a patient, and knows plenty of others via her nonprofit; she says she doesn't know of many who need outside assistance in managing the demands of day-to-day life.
"Previous to this," she says, "there were very, very few patients that needed assistance with daily activity, and most of them didn't rely on their caregiver for that. I don't think it's fair that it's being pushed on the caregivers."
Garduno says a lot of caregivers left the industry just last year, when House Bill 1284 directed that MMJ providers designated as primary caregivers grow for "no more than five patients on the medical marijuana program registry at any given time," except in exceptional circumstances. With the addition of more stipulations, she expects history to repeat itself: "I'm sure that more folks will just decide it's not worth their time and effort, even though a lot of them are providing quality medicine to patients at a very good price."
Mark Slaugh, a founder and CEO of iComply, which aims to help medical cannabis businesses by providing them with a regulatory resource, confirms that not only are the rights of the provider impacted, but the rights of the patient as well.
"They want to, by law, force a patient's choice to be one of no choice," he says. "To have your caregiver be not only the grower of your plants — who may specialize specifically in that — but also specialize in your health care services or your daily activities is kind of absurd from a patient standpoint."
Another complication came with the implementation of the caregiver registry mandated in House Bill 1043, which Gov. John Hickenlooper signed into law June 2. The new registry requires that caregivers "register the cultivation site and all patient identification numbers with the medical marijuana state licensing authority."
Garduno says the registry may help the large-scale growers — such as those who have an optional premises cultivation license and grow for dispensaries — avoid raids from law enforcement, but she maintains that the requirement is unnecessary for the smaller growers who stay within the five-patient limit.
In addition, according to Hatfield, having personal information recorded in the registry could become a danger. "I certainly wouldn't want the neighborhood thug knowing that I was a caregiver," Hatfield says. "That's a problem because that's what would happen if the information got out; people would be scoping out their house and waiting for them to leave."
The vagueness lies not only in the application of the new regulations, but also in the reasoning behind them.
"The focus should be more on quality medicine for patients and safe access," Garduno says. "The regulations thus far have been really focused on making sure that the crime stays out of the industry, as opposed to making sure that the patients are able to get access to medicine that they need."