Report Title:

Controlled Substances

Description:

Transfers administration of medical marijuana program from the department of public safety to the department of health. Changes certain definitions and procedures to make the program more efficient and easier for seriously ill patients. (SD2)

THE SENATE

S.B. NO.

2641

TWENTY-SECOND LEGISLATURE, 2004

S.D. 2

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CONTROLLED SUBSTANCES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the State's medical marijuana program, enacted into law in 2000, is a public health program conceived out of concern for the health and welfare of the seriously ill. Registration for the program is currently housed in the narcotics enforcement division of the department of public safety.

Many patients, however, are intimidated by the prospect of dealing with a narcotics enforcement agency, and do not apply for certification. Therefore, they do not benefit from the protection from arrest or the threat of arrest by state or county authorities that is offered to those who are certified by the State under this program.

Furthermore, the program's current placement in the narcotics enforcement division is in part responsible for the reluctance of many physicians to certify patients. These physicians are concerned that their written certifications will be reviewed by the same entity that monitors physicians on issues of over-prescribing, "doctor shopping," and similar issues.

Since the mission of the department of health is "to provide leadership to monitor, promote, protect, and enhance the health and environmental well-being of all of Hawaii's people," and since the use of medical marijuana is properly regarded as an health issue, not simply as an exception to the State's laws on controlled substances, the legislature finds that the State's medical marijuana program would more properly be housed in the department of health rather than in the department of public safety.

The purpose of this Act is to transfer the administration of the State's program for the medicinal use of marijuana from the department of public safety to the department of health and to change certain procedures and definitions to make the program more efficient and more user-friendly to the seriously ill patients who register with the program. It also places the burden of going forward with the registration required by the law on patients and their caregivers, those who are most directly interested in ameliorating the adverse effects of the patients' debilitating conditions.

SECTION 2. Chapter 329, Hawaii Revised Statutes, is amended by adding a new section to part IX to be appropriately designated and to read as follows:

"329-   Debilitating medical condition; additional medical conditions; procedure. The director of health shall convene a standing committee consisting of two practicing physicians, two representatives of patients certified to use marijuana under this part, and one representative from the department of health to meet semiannually to consider petitions submitted by physicians, qualifying patients, or potential qualifying patients to add other medical conditions to the definition of "debilitating medical condition" in section 329-121. In considering the petitions, the committee shall provide public notice of, and an opportunity to comment in a public hearing upon, the petitions. The committee shall approve or deny the petitions within thirty days after the hearing, and medical conditions approved by the committee shall be added to the list of debilitating conditions covered by this part, effective immediately upon the date of approval."

SECTION 3. Section 329-121, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to read:

""Registration" means filing with the department of health all information required by this chapter, including written certification."

2. By amending the definitions of "adequate supply," "debilitating medical condition," and "written certification" to read:

""Adequate supply" means an amount of marijuana jointly possessed between the qualifying patient and the primary caregiver that is not more than is reasonably necessary to assure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition; provided that an "adequate supply" shall not exceed [three mature] seven marijuana plants[,four immature marijuana plants, and one ounce of usable marijuana per each mature plant.] and three ounces of usable marijuana at any given time.

"Debilitating medical condition" means:

(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(2) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following:

(A) Cachexia or wasting syndrome;

(B) Severe pain;

(C) Severe nausea;

(D) Seizures, including those characteristic of epilepsy; or

(E) Severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(3) Any other medical condition approved by the department of health pursuant to [administrative rules in response to a request from a physician or potentially qualifying patient.] section 329-  .

"Written certification" means the qualifying patient's medical records or a statement signed by a qualifying patient's physician, provided in response to a request for the information from the qualifying patient, stating that in the physician's professional opinion, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. The department of [public safety] health may require, through its rulemaking authority, that all written certifications comply with a designated form. If required by the department of health, the designated form shall be made readily available for reproduction by posting it on the department of health's website and by sending a copy by post to any person requesting it. "Written certifications" are valid for [only one year] two years from the [time] date of signing unless the physician specifies a shorter duration."

SECTION 4. Section 329-122, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Notwithstanding any law to the contrary, the medical use of marijuana by a qualifying patient shall immediately be permitted [only] if:

(1) The qualifying patient has been diagnosed by a physician as having a debilitating medical condition;

(2) The qualifying patient's physician, in response to a request for information from the patient, has certified in writing that, in the physician's professional opinion, after having completed a medical examination and assessment of the patient's medical history and current medical condition in the course of a bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the particular qualifying patient; and

(3) The amount of marijuana possessed by the patient does not exceed an adequate supply."

SECTION 5. Section 329-122, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The authorization for the medical use of marijuana in this section shall not apply to:

(1) The medical use of marijuana that endangers the health or well-being of another person;

(2) The medical use of marijuana:

(A) In a school bus, public bus, or in any moving vehicle[;], or while using stationary heavy equipment;

(B) In the workplace of one's employment[;], except if working in one's residence;

(C) On any school grounds;

(D) At any public park, public beach, public recreation center, [recreation] or youth center; or

(E) Other [place] places open to the public; and

(3) The use of marijuana by a qualifying patient, parent, or primary caregiver for purposes other than medical use permitted by this part."

SECTION 6. Section 329-123, Hawaii Revised Statutes, is amended to read as follows:

"[[]329-123[]] Registration requirements. (a) Physicians who issue written certifications shall [register the names, addresses, patient identification numbers,] provide, in each certification, the name, address, patient identification number, and other identifying information of the qualifying patients [issued written certifications with the department of public safety]. The information shall include the physician's attestation that the patient has one of the debilitating medical conditions defined in section 329-121, but shall not include the qualifying patient's diagnosis.

(b) Qualifying patients shall register with the department of [public safety. Such] health. The registration shall be effective until the expiration of the certificate issued by the physician. Every qualifying patient shall provide sufficient identifying information to establish the personal identity of the qualifying patient and the primary caregiver. Qualifying patients shall report changes in information within [five] ten working days. Every qualifying patient shall have only one primary caregiver at any given time. The department shall [then] issue to the qualifying patient and primary caregiver a registration certificate[,] and may charge a reasonable fee not to exceed $25.

(c) Primary caregivers shall register with the department of [public safety. Every] health. No primary caregiver shall be responsible for the care of [only one] more than three qualifying [patient] patients at any given time.

(d) The department of health may require, in rules adopted under chapter 91, that all registrations comply with a designated form. The registration form shall be made readily available for reproduction by the public by posting it on the department of health's website and by sending a copy by post to any person requesting it.

[(d)] (e) Upon [an] inquiry by a law enforcement agency, the department of [public safety] health shall verify whether the [particular qualifying patient] subject of the inquiry has registered with the department and may provide reasonable access to the registry information for official law enforcement purposes."

SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 8. All appropriations, records, equipment, files, supplies, contracts, books, papers, documents, maps, computer software and data, authorizations and other property, both real and personal, heretofore made, used, acquired, or held by the department of public safety in the exercise of the functions and programs transferred by this Act shall be transferred to the department of health when the functions or programs are so transferred.

SECTION 9. All rules or other documents executed or entered into by or on behalf of the department of public safety pursuant to the provisions of part IX of chapter 329, Hawaii Revised Statutes, which are reenacted or made applicable to the department of health by this Act, shall remain in full force and effect until amended or repealed by the department of health pursuant to chapter 91, Hawaii Revised Statutes.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect upon its approval.