HOUSE OF REPRESENTATIVES
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII
A BILL FOR AN ACT
relating to marijuana.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that the regulation of medical marijuana is of paramount importance to the health and welfare of the State's citizens. The legislature further finds that Act 228, Session Laws of Hawaii 2000, was enacted to provide medical relief for seriously ill individuals in the State by permitting a qualifying patient to use medical marijuana only if the patient's physician certifies that the potential benefits to that patient of using medical marijuana outweigh the potential health risks.
Unlike drugs that are prescribed and regulated in accordance with federal and state laws governing controlled substances and the professional conduct of physicians, medical marijuana cannot be prescribed by a physician because to do so would violate federal law.
The legislature further finds that the State's current method of sanctioning the use of medical marijuana may be subject to abuse. A recent survey conducted by the department of public safety found that ninety percent of the medical marijuana certifications in the State were recommended by just ten physicians. While it could be argued that these numbers reflect an unwillingness by the medical profession in Hawaii to make medical marijuana certifications, they could also be construed to indicate that certain physicians are over-recommending the use of medical marijuana beyond what is justifiable under the standards of care established by the Hawaii medical board.
To address similar concerns, the State of New York established an autonomous regulatory agency with the responsibility of overseeing all physician recommendations for the use of certain drugs, including marijuana. The legislature believes that the establishment of a similar mechanism in Hawaii would benefit not only the users of medical marijuana, but also the general public.
Accordingly, the purpose of this Act is to establish a mechanism that will enable the sufficient monitoring of medical marijuana certifications made by physicians by requiring the:
(1) Department of health to provide monthly reports to the Hawaii medical board that list all physicians who certify qualifying patients for the use of medical marijuana, and the total number of qualifying patients for which each physician provided certifications during the preceding month; and
(2) Hawaii medical board to:
(A) Periodically review the frequency with which licensed physicians have provided written certifications to qualifying patients regarding medical marijuana and investigate whether those physicians have engaged in any misconduct; and
(B) Submit an annual report to the director of commerce and consumer affairs regarding any disciplinary action taken by the board against any physician for professional misconduct related to medical marijuana certifications, which shall serve as the primary basis for the director of commerce and consumer affairs' annual report to be submitted to the governor and the legislature.
SECTION 2. Chapter 453, part I, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§453- Medical marijuana certifications; review; disciplinary action. (a) The Hawaii medical board shall periodically review the frequency with which licensed physicians have provided written certifications to patients regarding medical marijuana pursuant to section 329-122 and shall investigate whether any physician has provided any written certification without good cause or has otherwise engaged in misconduct that warrants disciplinary action pursuant to section 453-8 and shall take disciplinary action as appropriate.
(b) No later than January 7 of each year, the Hawaii medical board shall submit an annual report to the director of commerce and consumer affairs regarding physician misconduct related to medical marijuana during the preceding year. The report shall include the name of each physician against whom disciplinary action pertaining to marijuana was taken pursuant to section 453-8 and the specific nature of the disciplinary action, and shall serve as the primary basis for the annual report provided by the director of commerce and consumer affairs to the governor and the legislature pursuant to section 26-9(t)."
SECTION 3. Section 26-9, Hawaii Revised Statutes, is amended to read as follows:
"§26-9 Department of commerce and consumer affairs. (a) The department of commerce and consumer affairs shall be headed by a single executive to be known as the director of commerce and consumer affairs.
(b) The department shall protect the interests of consumers, depositors, and investors throughout the State. It shall set standards and enforce all laws and rules governing the licensing and operation of, and register and supervise the conduct of, trades, businesses, and professions, including banks, insurance companies, brokerage firms, and other financial institutions.
(c) The board of acupuncture, board of public accountancy, board of barbering and cosmetology, boxing commission, board of chiropractic examiners, contractors license board, board of dental examiners, board of electricians and plumbers, elevator mechanics licensing board, board of professional engineers, architects, surveyors, and landscape architects, board of massage therapy, Hawaii medical board, motor vehicle industry licensing board, motor vehicle repair industry board, board of naturopathic medicine, board of nursing, board of examiners in optometry, pest control board, board of pharmacy, board of physical therapy, board of psychology, board of private detectives and guards, real estate commission, board of veterinary examiners, board of speech pathology and audiology, and any board, commission, program, or entity created pursuant to or specified by statute in furtherance of the purpose of this section including but not limited to section 26H-4, or chapters 484, 514A, 514B, and 514E shall be placed within the department of commerce and consumer affairs for administrative purposes.
The public utilities commission shall be placed, for administrative purposes only, within the department of commerce and consumer affairs. Notwithstanding section 26-9(e), (f), (g), (h), (j), (k), (l), (m), (n), (p), (q), (r), and (s), and except as permitted by sections 269-2 and 269-3, the department of commerce and consumer affairs shall not direct or exert authority over the day-to-day operations or functions of the commission.
(d) Except as otherwise provided by this chapter, the functions, duties, and powers, subject to the administrative control of the director of commerce and consumer affairs, and the composition of each board and commission shall be as provided by law.
(e) Notwithstanding any provision to the contrary, the employment, appointment, promotion, transfer, demotion, discharge, and job descriptions of all officers and employees under the administrative control of this department shall be determined by the director of commerce and consumer affairs subject only to applicable personnel laws.
(f) The director of commerce and consumer affairs may appoint a hearings officer or officers not subject to chapter 76 to hear and decide any case or controversy regarding licenses and the application and enforcement of rules involving any of the boards, commissions, or regulatory programs within the department of commerce and consumer affairs. The hearings officer or officers shall have power to issue subpoenas, administer oaths, hear testimony, find facts, and make conclusions of law and a recommended decision; provided that the conclusions and decisions shall be subject to review and redetermination by the officer, board, or commission which would have heard the case in the first instance in the absence of a hearings officer. The review shall be conducted in accordance with chapter 91.
(g) The director of commerce and consumer affairs may appoint an information officer not subject to chapter 76 who shall ensure the prompt and efficient handling of consumer inquiries and the development of a strong consumer education program.
(h) The director may appoint a complaints and enforcement officer not subject to chapter 76 who shall facilitate the receipt, arbitration, investigation, prosecution, and hearing of complaints regarding any person who furnishes commodities, services, or real estate for which a license, registration, or certificate is required from the department or any board, commission, or regulatory program thereunder. In representing the State in bringing any action to enjoin unlicensed, unregistered, or uncertified activities, the department of commerce and consumer affairs' attorneys shall be empowered to exercise all authority granted to the attorney general and to the director of the office of consumer protection under sections 487-12, 487-14, 480-3.1, 480-15, 480-15.1, 480-20(c), and 480-22, as these sections now exist and as they subsequently may be amended. The attorneys also shall be empowered to exercise all authority granted to the attorney general and to the responsible attorneys of the various counties under section 92F-13 in all cases involving documents and records within the custody or control of the regulated industries complaints office.
(i) The functions and authority previously exercised by the treasurer (except funds custody, cash management, debt management, and administering of veterans loans transferred to the department of budget and finance) as constituted are transferred to the department of commerce and consumer affairs established by this chapter.
(j) In the course of an investigation of matters affecting the interest of consumers, depositors, or investors, or of any other matter within the jurisdiction of the department, the director shall have the power to subpoena witnesses, examine witnesses under oath, and require the production of books, papers, documents, or objects that the director deems relevant or material to the inquiry. Upon application by the director, obedience to the subpoena may be enforced by the circuit court in the county in which the person subpoenaed resides or is found in the same manner as a subpoena issued by the clerk of a circuit court.
The director shall appoint and commission one or more investigators as the exigencies of the public service may require. Persons appointed and commissioned under this section may serve subpoenas and serve process and orders pursuant to section 634-21. Nothing in this subsection shall be construed to entitle persons appointed and commissioned by the director to retirement benefits applicable to police officers under chapter 88.
(k) The director may adopt, amend, or repeal rules pursuant to chapter 91 to effectuate the purposes of all laws within the jurisdiction of the department of commerce and consumer affairs. The director's authority to adopt rules shall not modify, impair, or otherwise affect the power of boards and commissions placed within the department of commerce and consumer affairs for administrative purposes from adopting, amending, or repealing rules, except as provided for in subsection (l).
(l) Any law to the contrary notwithstanding, the director of commerce and consumer affairs may:
(1) Establish, increase, decrease, or repeal fees relating to any aspect of the registration, certification, licensure, or any other administrative process for all laws within the jurisdiction of the department. Amendments to fee assessments shall be made pursuant to chapter 91;
(2) Assess fees for copies in any form of media of the computerized records of the business registration division or for electronic access to the computerized information on a one-time or on-going basis. The fees charged for the copies or access may include billing service fees, network usage fees, and computer consultant fees. In adopting these fees, the director shall take into account the intent to make the division self-supporting. To this end, the fees may reflect the commercial value of the service or information provided. In the case of requests for records by a nonprofit organization, the director may reduce or waive the fees. This paragraph shall control in any instance where there is a conflict between this paragraph and any other statute; and
(3) Assess fees for copies of consumer and business educational publications prepared or issued by the department. Fees collected under this paragraph shall be deposited into the compliance resolution fund under subsection (o). In the case of requests for copies by a nonprofit organization, the director may reduce or waive the fees. For purposes of this paragraph, "consumer and business educational publications" does not include copies of statutes or administrative rules.
The fees collected by the professional and vocational licensing division and the business registration division shall be deposited into the compliance resolution fund under subsection (o).
The director may appoint program specialists, not subject to chapter 76, to assist with the activities of the professional and vocational licensing division.
(m) Notwithstanding section 92-17 or any other law to the contrary, all boards, commissions, and regulatory programs placed within the department of commerce and consumer affairs for administrative purposes shall delegate their authority to receive, arbitrate, investigate, and prosecute complaints to the department.
(n) Each board and commission, as well as the director, by written order, may delegate to the executive secretary or other personnel of the department any of its powers or duties as it deems reasonable and proper for the administration of the licensing laws that are within the jurisdiction of the department of commerce and consumer affairs. The delegated powers and duties may be exercised by the executive secretary or other personnel of the department in the name of the board, commission, or the director. However, neither a board, a commission, nor the director shall delegate the authority to adopt, amend, or repeal rules or take final disciplinary action against a licensee.
(o) Every person licensed under any chapter within the jurisdiction of the department of commerce and consumer affairs and every person licensed subject to chapter 485A or registered under chapter 467B shall pay upon issuance of a license, permit, certificate, or registration a fee and a subsequent annual fee to be determined by the director and adjusted from time to time to ensure that the proceeds, together with all other fines, income, and penalties collected under this section, do not surpass the annual operating costs of conducting compliance resolution activities required under this section. The fees may be collected biennially or pursuant to rules adopted under chapter 91, and shall be deposited into the special fund established under this subsection. Every filing pursuant to chapter 514E or section 485A-202(a)(26) shall be assessed, upon initial filing and at each renewal period in which a renewal is required, a fee that shall be prescribed by rules adopted under chapter 91, and that shall be deposited into the special fund established under this subsection. Any unpaid fee shall be paid by the licensed person, upon application for renewal, restoration, reactivation, or reinstatement of a license, and by the person responsible for the renewal, restoration, reactivation, or reinstatement of a license, upon the application for renewal, restoration, reactivation, or reinstatement of the license. If the fees are not paid, the director may deny renewal, restoration, reactivation, or reinstatement of the license. The director may establish, increase, decrease, or repeal the fees when necessary pursuant to rules adopted under chapter 91. The director may also increase or decrease the fees pursuant to section 92-28.
There is created in the state treasury a special fund to be known as the compliance resolution fund to be expended by the director's designated representatives as provided by this subsection. Notwithstanding any law to the contrary, all revenues, fees, and fines collected by the department shall be deposited into the compliance resolution fund. Unencumbered balances existing on June 30, 1999, in the cable television fund under chapter 440G, the division of consumer advocacy fund under chapter 269, the financial institution examiners' revolving fund, section 412:2-109, the special handling fund, section 414‑13, and unencumbered balances existing on June 30, 2002, in the insurance regulation fund, section 431:2-215, shall be deposited into the compliance resolution fund. This provision shall not apply to the drivers education fund underwriters fee, sections 431:10C-115 and 431:10G-107, insurance premium taxes and revenues, revenues of the workers' compensation special compensation fund, section 386-151, the captive insurance administrative fund, section 431:19-101.8, the insurance commissioner's education and training fund, section 431:2-214, the medical malpractice patients' compensation fund as administered under section 5 of Act 232, Session Laws of Hawaii 1984, and fees collected for deposit in the office of consumer protection restitution fund, section 487-14, the real estate appraisers fund, section 466K-1, the real estate recovery fund, section 467-16, the real estate education fund, section 467-19, the contractors recovery fund, section 444-26, the contractors education fund, section 444-29, the condominium education trust fund, section 514B-71, and the mortgage foreclosure dispute resolution special fund, section 667-86. Any law to the contrary notwithstanding, the director may use the moneys in the fund to employ, without regard to chapter 76, hearings officers and attorneys. All other employees may be employed in accordance with chapter 76. Any law to the contrary notwithstanding, the moneys in the fund shall be used to fund the operations of the department. The moneys in the fund may be used to train personnel as the director deems necessary and for any other activity related to compliance resolution.
A separate special subaccount of the compliance resolution fund, to be known as the post-secondary education authorization special subaccount, shall be established for fees collected by the department of commerce and consumer affairs pursuant to chapter 305J. The special subaccount shall be governed by section 305J-19.
As used in this subsection, unless otherwise required by the context, "compliance resolution" means a determination of whether:
(1) Any licensee or applicant under any chapter subject to the jurisdiction of the department of commerce and consumer affairs has complied with that chapter;
(2) Any person subject to chapter 485A has complied with that chapter;
(3) Any person submitting any filing required by chapter 514E or section 485A-202(a)(26) has complied with chapter 514E or section 485A-202(a)(26);
(4) Any person has complied with the prohibitions against unfair and deceptive acts or practices in trade or commerce; or
(5) Any person subject to chapter 467B has complied with that chapter;
and includes work involved in or supporting the above functions, licensing, or registration of individuals or companies regulated by the department, consumer protection, and other activities of the department.
The director shall prepare and submit an annual report to the governor and the legislature on the use of the compliance resolution fund. The report shall describe expenditures made from the fund including non-payroll operating expenses.
(p) Any law to the contrary notwithstanding, the department of commerce and consumer affairs, or any board or commission placed within it for administrative purposes, may contract with professional testing services to prepare, administer, and grade examinations and tests for license applicants. For these purposes, the department may require applicants to pay the examination fee directly to the testing agency.
(q) Any law to the contrary notwithstanding, when any type of bond or insurance required to be maintained by any licensee under a regulatory program of the department of commerce and consumer affairs, or of any board or commission assigned to the department of commerce and consumer affairs, cannot reasonably be secured, the department, board, or commission may provide by rule for alternative forms of security to the consumer so long as that alternate security is no less than that provided by the type of bond or insurance initially required.
(r) Notwithstanding any other law to the contrary, the department of commerce and consumer affairs, or any board or commission placed within it for administrative purposes, may change any license renewal date by rules adopted in accordance with chapter 91.
(s) The director of commerce and consumer affairs may establish advisory committees, the members of which shall serve as consultants to the boards and to the director in their review of licensees referred for possible disciplinary action and as experts to the department for investigations and professional vocational licensing matters. Each advisory committee shall be appointed by the director from a list of licensees submitted annually by the board or by referral from the regulated industry for which an advisory committee is appointed. Each member of the committee shall serve until a new committee is established or until the particular case for which the member was designated a consultant or expert has been concluded.
All members of the advisory committee shall serve voluntarily and without compensation, but shall be paid reasonable allowances for travel and expenses that may be incurred as a result of performance of their duties on the committee. The costs shall be paid by the department.
Any member of the advisory committee shall be immune from civil liability for any act done in connection with this subsection.
(t) The director of commerce and consumer affairs shall submit an annual report to the governor and the legislature no later than twenty days prior to the convening of each regular session on disciplinary actions taken by the Hawaii medical board against physicians for misconduct related to medical marijuana pursuant to sections 453-8 and 453- (b)."
SECTION 4. Section 329-123, Hawaii Revised Statutes, is amended to read as follows:
"§329-123 Registration requirements. (a) Physicians who issue written certifications shall provide, in each written certification, the name, address, patient identification number, and other identifying information of the qualifying patient. The department of health shall require, in rules adopted pursuant to chapter 91, that all written certifications comply with a designated form completed by or on behalf of a qualifying patient. The form shall require information from the applicant, primary caregiver, and physician as specifically required or permitted by this chapter. The form shall require the address of the location where the marijuana is grown and shall appear on the registry card issued by the department of health. The certifying physician shall be required to have a bona fide physician-patient relationship with the qualifying patient. All current active medical marijuana permits shall be honored through their expiration date.
(b) Qualifying patients shall register with the department of health. The registration shall be effective until the expiration of the certificate issued by the department of health and signed by the physician. Every qualifying patient shall provide sufficient identifying information to establish the personal identities of the qualifying patient and the primary caregiver. Qualifying patients shall report changes in information within ten working days. Every qualifying patient shall have only one primary caregiver at any given time. The department of health shall issue to the qualifying patient a registration certificate, and shall charge $35 per year.
(c) Primary caregivers shall register with the department of health. Every primary caregiver shall be responsible for the care of only one qualifying patient at any given time.
(d) Upon inquiry by a law enforcement agency, which inquiry may be made twenty-four hours a day, seven days a week, the department of health shall immediately verify whether the subject of the inquiry has registered with the department of health and may provide reasonable access to the registry information for official law enforcement purposes.
(e) Each month, the department of health shall provide to the Hawaii medical board a report that includes:
(1) The name of each physician who provided a written certification to a qualifying patient during the preceding month; and
(2) The total number of qualifying patients for which each physician provided a written certification during the preceding month."
SECTION 5. New statutory material is underscored.
SECTION 6. This Act shall take effect upon its approval.
Medical Marijuana; Physicians; Misconduct; Discipline
Requires DCCA to submit annual report regarding physician discipline related to medical marijuana certifications. Requires DOH to submit monthly report on medical marijuana certifications. Requires Hawaii medical board to investigate potential misconduct regarding medical marijuana, take appropriate disciplinary action, and submit annual report.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.