HB2067

SECTION 1. The legislature finds that the State's medical marijuana program, enacted into law in 2000 in Act 228, Session Laws of Hawaii 2000, and codified in part IX, chapter 329, Hawaii Revised Statutes, is a public health program conceived out of concern for the health and welfare of the seriously ill. After seven years in effect, experience of the program indicates that improvements to the law would help to fulfill its original intent by clarifying provisions and removing obstacles to patient access and physician participation.

This Act will help qualifying patients by:

(1) Increasing the patient-caregiver ratio. Because many qualifying patients are too incapacitated or otherwise unable to grow their own supply of marijuana, they must rely on caregivers. However, there are not enough caregivers to meet the demand; therefore, this Act will increase the ratio of patient to caregiver from 1:1 to 5:1. This will also assist qualifying patients who share housing and are therefore in a good position to share caregivers;

(2) Protecting patients’ employment and ability to rent or lease a home;

(3) Protecting patients’ medicine from unlawful seizure by law enforcement personnel;

(4) Making the registration and certification process more user friendly by requiring forms to be posted on the department of public safety's website, as is done in other states; providing for a thirty-day notice of certificate expiration; and increasing the length of time for reporting changes in a patient’s status;

(5) Increasing the amount of marijuana permitted per patient or caregiver to be consistent with the amounts allowed in other states for meeting the therapeutic needs of the patient;

(6) Enhancing patient confidentiality and security by requiring that the address where the marijuana is grown be kept confidential and omitted from the registry card issued by the department of public safety;

(7) Establishing specific procedures and protocols within the department of health, as required by existing law, for adding new qualifying medical conditions as warranted;

(8) Establishing reciprocity with other medical marijuana states by adding a definition of "visiting qualifying patient"; and

(9) Establishing presumptive eligibility whereby qualifying patients with a written recommendation by their physician are immediately protected under state law upon submission of an application to the department of public safety.

This Act will help physicians by:

(1) Limiting the responsibilities of the certifying physician; and

(2) Allowing potential and existing patients to obtain forms themselves.

This Act will help law enforcement by:

(1) Eliminating the confusing distinction between mature and immature plants;

(2) Clarifying circumstances where medical marijuana can be used, for example, by allowing use in the workplace if the workplace is the patient's own residence and promoting safety by prohibiting the use by qualifying patients on stationary heavy equipment; and

(3) Eliminating any ambiguity in the description of the quantity of marijuana that may be possessed.

This Act is consistent with the laws in eleven other states that have established medical marijuana programs, including several laws that have been enacted since the passage of Hawaii’s law.

The purpose of this Act is to address the expressed concerns of both Hawaii’s seriously ill patients and physicians by establishing a standing committee to review additional medical conditions that may be included under the definition of "debilitating medical conditions" for the purposes of medical marijuana use. In addition, this Act makes clarifications to the medical marijuana program for law enforcement purposes.

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- Additional debilitating medical conditions; standing committee; procedure. (a) The director of health shall convene a debilitating medical condition standing committee consisting of two practicing physicians, two representatives of qualifying patients certified to use marijuana under this part, and one representative from the department of health, who shall be the chairperson of the standing committee. The director of health shall select the members of the standing committee. Members shall not be compensated but shall be reimbursed for necessary expenses, including travel expenses, incurred in the routine performance of their duties.

(b) The standing committee shall meet semiannually to consider petitions submitted by physicians, qualifying patients, or potentially qualifying patients to add other medical conditions to the definition of "debilitating medical condition" in section 329-121. In considering the petitions, the standing committee shall provide public notice of, and an opportunity to comment in a public hearing upon, the petitions. The standing committee shall approve or deny the petitions within thirty days after the hearing. If approved, the director of health shall adopt rules, exempt from the public notice, public hearing, and gubernatorial approval requirements under chapter 91 and the small business regulatory review board rule review requirement under chapter 201M, to include the approved medical conditions in the list of debilitating conditions covered by this part."

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

1. By adding two new definitions to be appropriately inserted and to read:

""Registration" means the filing by a qualifying patient or a prospective qualifying patient with the department of public safety of all information required by this part, including written certification.

"Visiting qualifying patient" means a person who has been issued a registry information card or its equivalent, issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States, that allows for the medical use of marijuana and shall have the same force and effect as written certification issued by the State of Hawaii."

2. By amending the definition of "adequate supply" 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~~] twelve marijuana plants[~~, four immature marijuana plants, and one ounce~~] and seven ounces of usable marijuana [~~per each mature plant.~~] at any given time."

3. By amending the definition of "debilitating medical condition" to read:

""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;

(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 the expedited adoption of administrative rules in response to a request from a physician, qualifying patient, or potentially qualifying patient[.] pursuant to section 329- ."

4. By amending the definition of "written certification" to read:

""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 may require, through its rulemaking authority, that all written certifications comply with a designated form. The form may request the address of the location where the marijuana is grown, but such information shall be confidential and shall not appear on the registry card issued by the department. The department shall make the form readily available for reproduction by posting the form on the department's website and by mailing or faxing a copy of the form to any person requesting it. "Written certifications" are valid for only one year from the [~~time~~] date of signing[.], unless the physician specifies a shorter duration. The department shall give the patient and primary caregiver, if any, written notice of the pending expiration of a patient's certification not less than thirty days before the certification expires."

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 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 qualifying patient or potentially qualifying 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 qualifying 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] any moving vehicle[;], or while using stationary heavy equipment;

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

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

(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 a 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 [~~patients~~ ~~issued written certifications with the department of public safety.~~] Qualifying Patients. The information shall include the physician's attestation that the patient has one of the debilitating medical conditions defined in section 329-121.

(b) Qualifying patients shall register with the department of public safety. [~~Such~~] 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 a registration certificate[,] and may charge a reasonable fee not to exceed $25[.] per year.

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

(d) The department may require, in rules adopted under chapter 91, that all registrations comply with a designated form. The form shall require information only from the applicant and contain other information as required or permitted by this part. The department shall make registration forms readily available for reproduction by the public by posting the form on the department's website or by mailing or faxing a copy of the form to any person requesting it.

[~~(d)~~] (e) Upon [an] inquiry by a law enforcement agency, the department of public safety 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. 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 as an affirmative defense to any prosecution involving marijuana 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 shall not be afforded the protections against searches and seizures pertaining to the misapplication of the medical use of marijuana.

(c) No person shall be subject to arrest or prosecution for simply being in the presence or vicinity of the medical use of marijuana as permitted under this part.

(d) No school, employer, or landlord shall refuse to enroll or employ or lease to, or otherwise penalize a person solely for the person's status as a registered qualifying patient or a registered primary caregiver, unless failing to do so would put the school, employer or landlord in violation of federal law or cause it to lose a federal contract or funding.

(e) A law enforcement agency that seizes and does not return marijuana that is possessed in accordance with this part by a registered qualifying patient or a registered primary caregiver shall be liable to the registered qualifying patient or the registered primary caregiver for the fair market value of the marijuana "

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 10. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2067
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII