SB905

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. Registration for the program is currently housed in the narcotics enforcement division of the department of public safety.

Since the mission of the department of health is "to protect and improve the health and environment for all people in Hawaii," and since the use of medical marijuana is properly regarded as a health issue, rather than 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.

Section 329-121, Hawaii Revised Statutes, gives the department of health the function of adding new debilitating conditions to those that would permit medical marijuana use under the definition of "debilitating medical condition". Although research indicates that the potential beneficial use of marijuana has been expanding to new conditions, this function has never been exercised by the department of health.

This Act provides for an administrative body within the department of health to determine whether to add new debilitating conditions to those listed in section 329-121, Hawaii Revised Statutes, as the legislature intended.

The declining number of patients who are seeking to ameliorate their debilitating conditions with medical marijuana on Oahu, strongly suggests that physicians are refusing to certify medical marijuana use because of fear of possible prosecution under the federal Controlled Substances Act, 21 United States Code sections 801 et seq. Experience in California and cases decided by the United States Court of Appeals for the Ninth Circuit, which are applicable in Hawaii, make very clear that physicians may not be prosecuted for recommending medical use of marijuana or taking steps under part IX, chapter 329, Hawaii Revised Statutes, which will enable patients to acquire medical marijuana if the role of physician is properly limited to certifying that the patient has a debilitating condition and that, in the physician's opinion, the benefits of marijuana use outweigh the risks for the particular patient. This Act limits the role of the physician to these two functions.

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

This Act promotes safety by adding the use of stationary heavy equipment to the situations in which medical marijuana may not be used. In addition, it makes other changes to the medical marijuana law designed to simplify the Act for patients suffering from debilitating conditions and to better describe the role of the certifying physician to ensure that the patient will be likely to benefit from the use of medical marijuana and that the certifying physician will not engage in activities that might subject the physician to prosecution under the federal Controlled Substances Act. These minor changes include:

(1) Allowing use of medical marijuana in the workplace if the workplace is the patient's own residence;

(2) Eliminating ambiguity in the description of the quantity of marijuana that may be possessed;

(3) Making the necessary applications readily available on the department of health's website to patients who seek certification; and

(4) 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 the number of patients that may be served by a single caregiver to three. In addition, to ensure that patients' privacy rights are protected, the physician's certification shall attest that the patient has a debilitating condition as defined in this Act but shall not identify the patient's specific diagnosis.

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 on, the petitions in a public hearing. The committee shall approve or deny the petitions within thirty days after the hearing. 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 be appropriately inserted and 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;

(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 a form is required by the department of health, it 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. 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 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 any moving vehicle[;], or while using stationary heavy equipment;

(B) In the workplace of one's employment[;], except if working in one's 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 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 had one of the debilitating medical conditions defined in section 321-121.

(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 of health shall [~~then~~] issue to the qualifying patient and primary caregiver a registration certificate[,] and may charge a reasonable fee not to exceed $25[.] per year. The certificate may state that the patient had 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 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 mail 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 rights, powers, and duties of the department of public safety regarding part IX of chapter 329, Hawaii Revised Statutes, are transferred to the department of health.

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.

SECTION 9. All rules or other documents executed or entered into by or on behalf of the department of public safety pursuant to 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.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	905
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII