HB300

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.

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 administered by the department of health rather than by the department of public safety.

The purpose of this Act is to transfer the administration of the State's program for the medical 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. This Act also places the burden of proceeding to register on patients and their caregivers, those who are most directly interested in ameliorating the adverse effects of the patients' debilitating conditions.

Existing law confers upon the department of health the power to add new debilitating conditions to those which would permit medical marijuana use. Although research indicates that new conditions may benefit from the medical use of marijuana, the department of health has never exercised its power to extend the medical use of marijuana to those new conditions. This Act provides with greater specificity for an administrative body within the department of health to determine, as required by existing law, whether to add new debilitating conditions to those already listed under the definition of "debilitating medical condition" in section 329‑121, Hawaii Revised Statutes.

The legislature finds that the number of patients who are seeking to ameliorate their debilitating conditions with medical marijuana on Oahu has declined, strongly suggesting that physicians are refusing to certify medical marijuana use because of fear of possible prosecution under the federal Controlled Substances Act. Experience in California and cases decided by the Ninth Circuit of the United States Court of Appeals, which are applicable in Hawaii, make very clear that physicians may not be prosecuted for recommending the medical use of marijuana or enabling patients to acquire marijuana for medical use if the role of physician is properly limited to certifying that:

(1) The patient has a debilitating condition; and

(2) In the physician's opinion, the benefits of using marijuana for medical purposes outweigh the risk for the particular patient.

This Act limits the role of the physician to these two functions.

It is also possible that declining registration in the program may be a result of physicians' certifications automatically expiring after one year, as the law now requires. This Act extends the period of certification to two years unless the physician recommends a shorter period, and includes a requirement that patients be given mailed notice of expiration of their registration and the need for renewal at least thirty days before their registration expires.

This Act also promotes safety by prohibiting the use by qualifying patients of stationary heavy equipment. In addition, this Act simplifies program implementation for patients and better describes the role of the certifying physician by allowing use in the workplace if the workplace is the patient's own residence, eliminating ambiguity in the description of the quantity of marijuana that may be possessed, making the registration applications readily available on the department of health's website, and sharply limiting the role of the certifying physician in securing certification. Because persons with debilitating conditions often share the same residence, administration of the program will be improved by increasing to three the number of patients that may be served by a single caregiver. In addition, to ensure that patients' privacy rights are protected, the physician's certification shall attest that the patient has a debilitating condition but shall not identify the patient's specific diagnosis.

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 potential 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 shall adopt rules, exempt from the public notice and 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 to the list of debilitating conditions covered by this part."

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

1. By adding a new definition of "registration" to read:

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

2. By amending the definitions of "adequate supply" and "debilitating medical condition" 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~~] and three ounces of usable marijuana [~~per each mature plant.~~] at each 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;

(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‑ ."

3. 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~~] health may require, through its rulemaking authority, that all written certifications comply with a designated form. If a form is required by the department of health, the department shall make the form readily available for reproduction by posting on the department's website or by mailing a copy 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. The department of health 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 as follows:

1. By amending subsection (a) to read:

"(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."

2. By amending subsection (c) to read:

"(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

(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 5. 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.

(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 a registration certificate[,] and may charge a reasonable fee not to exceed $25[.] per year. The certificate may state that the patient has a "debilitating condition" but may not include the patient's specific medical diagnosis.

(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 department shall make registration forms readily available for reproduction by the public by posting on the department's website or by mailing a copy 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 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of public safety relating to the functions transferred to the department of health shall be transferred with the functions to which they relate.

SECTION 8. 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 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.	300
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII