Bill Text: HI SB544 | 2010 | Regular Session | Introduced
Bill Title: Medical Marijuana; Medical Cannabis; Department of Health
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB544 Detail]
Download: Hawaii-2010-SB544-Introduced.html
Report Title:
Medical Marijuana; Medical Cannabis; Department of Health
Description:
Amends the term "medical marijuana" to "medical cannabis"; transfers the administration of the State's program for the medical use of marijuana from the department of public safety to the department of health.
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THE SENATE |
S.B. NO. |
544 |
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TWENTY-FIFTH LEGISLATURE, 2009 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to HEALTH.
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 administered by 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.
In June 2008, the department of public safety violated patients' privacy interests by mistakenly releasing private patient information to a reporter for the Hawaii Tribune-Herald. The list included the name of each of the four thousand two hundred patients, the location of their cannabis plants, license information, and the names of their physicians.
The mission of the department of health is "to protect and improve the health and environment for all people in Hawaii." Since the department is more experienced in dealing with private health records, and since the use of medical cannabis is properly regarded as a 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 be more properly administered by the department of health rather than by the department of public safety.
Further, the department of health is already part of the medical use of medical marijuana program as existing law confers upon the department of health the power to add new debilitating conditions to those which would permit medical cannabis use.
The purpose of this Act is to transfer administration of the State's program for the medical use of cannabis from the department of public safety to the department of health and to rename the program to be known as the "medical use of cannabis" program.
SECTION 2. Chapter 329, part IX, Hawaii Revised Statutes, is amended by amending its title to read as follows:
"[[]PART
IX.[]] MEDICAL USE OF [MARIJUANA] CANNABIS"
SECTION 3. Section 329-121, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-121[]]
Definitions. As used in this part:
"Adequate supply" means an amount of
[marijuana] cannabis 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] cannabis
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 [marijuana] cannabis
plants, four immature [marijuana] cannabis plants, and one ounce
of usable [marijuana] cannabis per each mature plant.
"Cannabis" shall have the same meaning as "marijuana" and "marijuana concentrate" as provided in sections 329-1 and 712‑1240.
"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.
"Department" means the department of health.
["Marijuana" shall have the same
meaning as "marijuana" and "marijuana concentrate" as
provided in sections 329-1 and 712-1240.]
"Medical use" means the acquisition,
possession, cultivation, use, distribution, or transportation of [marijuana]
cannabis or paraphernalia relating to the administration of [marijuana]
cannabis to alleviate the symptoms or effects of a qualifying patient's
debilitating medical condition. For the purposes of "medical use",
the term distribution is limited to the transfer of [marijuana] cannabis
and paraphernalia from the primary caregiver to the qualifying patient.
"Physician" means a person who is
licensed under [chapters]
chapter 453 [and 460 and], is
licensed with authority to prescribe drugs, and is registered under
section 329-32. "Physician" does not include a physician's
assistant as described in section 453-5.3.
"Primary caregiver" means a person,
other than the qualifying patient and the qualifying patient's physician, who
is eighteen years of age or older who has agreed to undertake responsibility
for managing the well-being of the qualifying patient with respect to the
medical use of [marijuana.] cannabis. In the case of a minor or
an adult lacking legal capacity, the primary caregiver shall be a parent,
guardian, or person having legal custody.
"Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition.
["Usable marijuana"] "Usable
cannabis" means the dried leaves and flowers of the plant Cannabis
family Moraceae, and any mixture [[]or[]] preparation thereof,
that are appropriate for the medical use of [marijuana. "Usable
marijuana"] cannabis. "Usable cannabis" does not
include the seeds, stalks, and roots of the plant.
"Written certification" means the
qualifying patient's medical records or a statement signed by a qualifying
patient's physician, 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] cannabis 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. "Written
certifications" are valid for only one year from the time of
signing."
SECTION 4. Section 329-122, Hawaii Revised Statutes, is amended to read as follows:
"§329-122 Medical use of [marijuana;]
cannabis; conditions of use. (a) Notwithstanding any law to the
contrary, the medical use of [marijuana] cannabis by a qualifying
patient shall 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 has certified
in writing that, in the physician's professional opinion, the potential
benefits of the medical use of [marijuana] cannabis would likely
outweigh the health risks for the particular qualifying patient; and
(3) The amount of [marijuana] cannabis
does not exceed an adequate supply.
(b) Subsection (a) shall not apply to a qualifying patient under the age of eighteen years, unless:
(1) The qualifying patient's physician has explained
the potential risks and benefits of the medical use of [marijuana] cannabis
to the qualifying patient and to a parent, guardian, or person having legal
custody of the qualifying patient; and
(2) A parent, guardian, or person having legal custody consents in writing to:
(A) Allow the qualifying patient's medical use
of [marijuana;] cannabis;
(B) Serve as the qualifying patient's primary caregiver; and
(C) Control the acquisition of the [marijuana,]
cannabis, the dosage, and the frequency of the medical use of [marijuana]
cannabis by the qualifying patient.
(c) The authorization for the medical use of [marijuana]
cannabis in this section shall not apply to:
(1) The medical use of [marijuana] cannabis
that endangers the health or well-being of another person;
(2) The medical use of [marijuana:] cannabis:
(A) In a school bus, public bus, or any moving vehicle;
(B) In the workplace of one's employment;
(C) On any school grounds;
(D) At any public park, public beach, public recreation center, or recreation or youth center; or
(E) [Other] At any other place
open to the public; and
(3) The use of [marijuana] cannabis by
a qualifying patient, parent, or primary caregiver for purposes other than
medical use permitted by this part."
SECTION 5. Section 329-123, Hawaii Revised Statutes, is amended to by amending subsections (a), (b), and (c) to read as follows:
"(a) Physicians who issue written
certifications shall register the names, addresses, patient identification numbers,
and other identifying information of the patients issued written certifications
with the department of [public safety.] health. The department of
health shall provide the department of public safety, on a weekly basis, with a
copy of the information provided by physicians pursuant to this subsection.
(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 working days. Every qualifying patient shall have only
one primary caregiver at any given time. The department of health shall
then issue to the qualifying patient a registration certificate, and may charge
a reasonable fee not to exceed $25. The department of health shall provide the
department of public safety, on a weekly basis, with a copy of the information
provided by qualifying patients pursuant to this subsection.
(c) Primary caregivers shall register with the
department of [public safety.] health. Every primary caregiver
shall be responsible for the care of only one qualifying patient at any given
time. The department of health shall provide the department of public
safety, on a weekly basis, with a copy of the information provided by primary
caregivers pursuant to this subsection."
SECTION 6. Section 329-124, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-124[]]
Insurance not applicable. This part shall not be construed to require
insurance coverage for the medical use of [marijuana.] cannabis."
SECTION 7. Section 329-125, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-125[]]
Protections afforded to a qualifying patient or primary caregiver. (a) A
qualifying patient or the primary caregiver may assert the medical use of [marijuana]
cannabis as an affirmative defense to any prosecution involving [marijuana]
cannabis under this [[]part[]] or chapter 712; provided
that the qualifying patient or the primary caregiver strictly complied with the
requirements of this part.
(b) Any qualifying patient or primary
caregiver not complying with the permitted scope of the medical use of [marijuana]
cannabis shall not be afforded the protections against searches and
seizures pertaining to the misapplication of the medical use of [marijuana.]
cannabis.
(c) No person shall be subject to arrest or
prosecution for simply being in the presence or vicinity of the medical use of
[marijuana] cannabis as permitted under this part."
SECTION 8. Section 329-126, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-126[]]
Protections afforded to a treating physician. No physician shall be
subject to arrest or prosecution, penalized in any manner, or denied any right
or privilege for providing written certification for the medical use of [marijuana]
cannabis for a qualifying patient; provided that:
(1) The physician has diagnosed the patient as having a debilitating medical condition, as defined in section 329-121;
(2) The physician has explained the potential risks
and benefits of the medical use of [marijuana,] cannabis, as
required under section 329-122;
(3) The written certification is based upon the physician's professional opinion after having completed a full assessment of the patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship; and
(4) The physician has complied with the registration requirements of section 329-123."
SECTION 9. Section 329-127, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-127[]]
Protection of [marijuana] cannabis and other seized property.
[Marijuana,] Cannabis, paraphernalia, or other property seized
from a qualifying patient or primary caregiver in connection with a claimed
medical use of [marijuana] cannabis under this part shall be
returned immediately upon the determination by a court that the qualifying
patient or primary caregiver is entitled to the protections of this part, as
evidenced by a decision not to prosecute, dismissal of charges, or an
acquittal; provided that law enforcement agencies seizing live plants as
evidence shall not be responsible for the care and maintenance of [such]
the plants."
SECTION 10. Section 329-128, Hawaii Revised Statutes, is amended to read as follows:
"[[]§329-128[]]
Fraudulent misrepresentation; penalty. (a) Notwithstanding any law to
the contrary, fraudulent misrepresentation to a law enforcement official of any
fact or circumstance relating to the medical use of [marijuana] cannabis
to avoid arrest or prosecution under this part or chapter 712 shall be a petty
misdemeanor and subject to a fine of $500.
(b) Notwithstanding any law to the contrary,
fraudulent misrepresentation to a law enforcement official of any fact or
circumstance relating to the issuance of a written certificate by a physician
not covered under section 329-126 for the medical use of [marijuana] cannabis
shall be a misdemeanor. This penalty shall be in addition to any other
penalties that may apply for the non-medical use of [marijuana.] cannabis.
Nothing in this section is intended to preclude the conviction of any person
under section 710-1060 or for any other offense under part V of chapter
710."
SECTION 11. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 12. 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 transferred.
SECTION 13. 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 14. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 15. This Act shall take effect upon its approval.
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INTRODUCED BY: |
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