THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY COHEN, BRIGGS, CALTAGIRONE, CURRY, HARKINS, M. O'BRIEN, PAYTON, SABATINA AND SANTONI, JUNE 13, 2011

REFERRED TO COMMITTEE ON HEALTH, JUNE 13, 2011  

AN ACT

Providing for the medical use of marijuana.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

This act shall be known and may be cited as the Governor

Raymond P. Shafer Compassionate Use Medical Marijuana Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Bona fide physician-patient relationship."  A physician who

has completed a full assessment of the patient's medical history

and current medical condition, including a personal physical

examination.

"Compassion center."  A facility where usable marijuana may

be dispensed for medical use.

"Controlled Substance, Drug, Device and Cosmetic Act."  The

act of April 14, 1972 (P.L.233, No.64), known as The Controlled

Substance, Drug, Device and Cosmetic Act.

"Debilitating medical condition."  This term includes any of

the following:

(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: cachexia or wasting syndrome; severe or chronic

pain; severe nausea; seizures, including, but not limited to,

those characteristic of epilepsy; severe and persistent

muscle spasms, including, but not limited to, those

characteristic of multiple sclerosis or Crohn's disease; or

(3)  any other weakening medical condition or its

treatment that is recognized by licensed medical authorities

as being treatable with marijuana in a manner that is

superior to treatment without marijuana.

"Department."  The Department of Health of the Commonwealth.

"Marijuana."  As the term is defined using the spelling

"marihuana" under the act of April 14, 1972 (P.L.233, No.64),

known as The Controlled Substance, Drug, Device and Cosmetic

Act.

"Medical use."  The acquisition, possession, cultivation,

manufacture, use, delivery, transfer or transportation of

marijuana or paraphernalia relating to a qualifying patient's

consumption of marijuana to alleviate the symptoms or effects of

the patient's debilitating medical condition.

"Physician."  A person licensed to practice medicine and

surgery under the laws of this Commonwealth.

"Primary caregiver" or "caregiver."  A person who is at least

18 years of age, who has never been convicted of a felony drug

offense, has agreed to assist with a qualifying patient's

medical use of marijuana and has been designated as primary

caregiver on the qualifying patient's application or renewal for

a registry identification card or in other written notification

to the Department of Health. A primary caregiver shall only have

one qualifying patient at any one time. A primary caregiver

shall not include the qualifying patient's physician.

"Qualifying patient" or "patient."  A person who has been

diagnosed by a physician as having a debilitating medical

condition.

"Registry identification card."  A document issued by the

Department of Health that identifies a person as a qualifying

patient or primary caregiver. The term shall include a registry

identification card or its equivalent issued by another state

government to permit the medical use of marijuana by a

qualifying patient or to permit a person to assist with a

qualifying patient's medical use of marijuana.

"Secretary."  The Secretary of Health of the Commonwealth.

"Usable marijuana."  The dried leaves and flowers of

marijuana, and any mixture or preparation thereof, and does not

include the seeds, stalks and roots of the plant.

"Written certification."  The qualifying patient's medical

records, or a statement signed by a physician licensed in

accordance with the laws of this Commonwealth with whom the

patient has a bona fide physician-patient relationship, stating

that in the physician's professional opinion, after having

completed a full assessment of the qualifying patient's medical

history and current medical condition, the qualifying patient

has a debilitating medical condition for which the potential

benefits of the medical use of marijuana would likely outweigh

the health risks for the qualifying patient and would likely be

superior to treatment without the medical use of marijuana.

Section 3.  Compassion centers.

(a)  Duty of department.--The department may establish its

own and shall license any privately owned nonprofit compassion

center. The department shall award private licenses by

competitive bid. There shall be no more than one compassion

center per 250,000 residents.

(b)  Sales tax.--State sales tax at the rate imposed under

Article II of the act of March 4, 1971 (P.L.6, No.2), known as

the Tax Reform Code of 1971, shall be imposed on all sales of

marijuana in this Commonwealth. If the county in which a sale of

marijuana for medical use occurs has a sales tax, that sales tax

shall be imposed on the sale also.

(c)  Growth, processing or distribution of marijuana for

medical treatment.--A compassion center shall maintain records

of all marijuana it grows, processes or distributes for medical

treatment and shall make its records available for inspection by

the department.

Section 4.  Medical use of marijuana permitted.

(a)  Freedom from arrest, prosecution or penalty.--

(1)  A qualifying patient shall not be subject to arrest,

prosecution or penalty in any manner, or denied any right or

privilege, including, but not limited to, civil penalty or

disciplinary action by a professional licensing board, for

the medical use of marijuana, provided that the patient

possesses a registry identification card and no more than six

marijuana plants and one ounce of usable marijuana.

(2)  There shall exist a rebuttable presumption that a

qualifying patient is engaged in the medical use of marijuana

if he possesses a registry identification card and no more

than six marijuana plants and one ounce of usable marijuana.

The presumption may be rebutted by evidence that conduct

related to marijuana was not for the purpose of alleviating

the symptoms or effects of a patient's debilitating medical

condition.

(3)  A qualifying patient may assert the medical use of

marijuana as an affirmative defense to any prosecution

involving marijuana unless the patient was in violation of

this section when the events giving rise to the prosecution

occurred. The defense shall be presumed valid where the

evidence shows both of the following:

(i)  At the time of the events giving rise to the

prosecution, the patient's medical records indicated or a

physician stated that, in 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, the potential benefits of the medical use

of marijuana would likely outweigh the health risks for

the patient.

(ii)  The patient and his caregiver, if any, were

collectively in possession of no more than six marijuana

plants and one ounce of usable marijuana.

(4)  Possession of, or application for, a registry

identification card shall not alone constitute probable cause

to search the person or the property of the person possessing

or applying for the registry identification card, or

otherwise subject the person or his property to inspection by

any governmental agency.

(5)  The provisions of the Controlled Substance, Drug,

Device and Cosmetic Act, relating to destruction of marijuana

shall not apply if a qualifying patient has in his possession

a registry identification card and no more than six marijuana

plants and one ounce of usable marijuana.

(b)  Patients under 18 years of age.--The provisions of

subsection (a) shall not apply to a qualifying patient under 18

years of age, unless:

(1)  the patient's physician has explained to the patient

and the patient's custodial parent, guardian or person having

legal custody the potential risks and benefits of the medical

use of marijuana; and

(2)  the custodial parent, guardian or person having

legal custody consents in writing to: allow the patient's

medical use of marijuana; serve as the patient's primary

caregiver; and control the acquisition, dosage and frequency

of the medical use of marijuana by the patient.

(c)  Immunity of primary caregiver.--

(1)  A primary caregiver who has in his possession a

registry identification card shall not be subject to arrest,

prosecution or penalty in any manner or denied any right or

privilege, including, but not limited to, civil penalty or

disciplinary action by a professional licensing board, for

assisting a qualifying patient to whom the caregiver is

connected through the department's registration process with

the medical use of marijuana, provided that the caregiver

possesses no more than six marijuana plants and six ounces of

usable marijuana for the patient to whom he is connected

through the department's registration process.

(2)  There shall exist a rebuttable presumption that a

primary caregiver is engaged in the medical use of marijuana

if the caregiver possesses a registry identification card and

no more than six marijuana plants and six ounces of usable

marijuana. The presumption may be rebutted by evidence that

conduct related to marijuana was not for the purpose of

alleviating the symptoms or effects of a qualifying patient's

debilitating medical condition.

(3)  A primary caregiver may assert the medical use of

marijuana as an affirmative defense to any prosecution

involving marijuana unless the caregiver was in violation of

this section when the events giving rise to the prosecution

occurred. The defense shall be presumed valid where the

evidence shows that:

(i)  at the time of the events giving rise to the

prosecution, the patient's medical records indicated or a

physician stated that, in 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, the potential benefits of the medical use

of marijuana would likely outweigh the health risks for

the patient; and

(ii)  the patient and his caregiver, if any, were

collectively in possession of no more than six marijuana

plants and one ounce of usable marijuana.

(4)  Possession of, or application for, a registry

identification card shall not alone constitute probable cause

to search a person or property of a person possessing or

applying for the registry identification card or otherwise

subject the person or his property to inspection by any

governmental agency.

(5)  The provisions of the Controlled Substance, Drug,

Device and Cosmetic Act, relating to destruction of marijuana

determined to exist by the department, shall not apply if a

primary caregiver has in his possession a registry

identification card and no more than six marijuana plants and

one ounce of usable marijuana.

(d)  Immunity of physician.--A physician shall not be subject

to arrest, prosecution or penalty in any manner, or denied any

right or privilege, including, but not limited to, civil penalty

or disciplinary action by the State Board of Medicine for

providing written certification for the medical use of marijuana

to a qualifying patient.

(e)  Personal proximity.--No person shall be subject to

arrest or prosecution for constructive possession, conspiracy or

any other offense for simply being in the presence or vicinity

of the medical use of marijuana as permitted under this act.

(f)  Additional.--No more than three ounces of usable

marijuana may be taken from the compassion centers over any 14-

day period.

Section 5.  Operation of a motorized vehicle prohibited.

The provisions of this act shall not be construed to permit

any person to operate, navigate or be in actual physical control

of any motor vehicle, aircraft or motorboat while under the

influence of marijuana; or smoke marijuana in a school bus or

other form of public transportation, on any school grounds, in

any correctional facility, at any public park or beach, at any

recreation center or at any place where cigarette smoking is

prohibited by law or by organizational policy. A person who

commits an act as provided in this section shall be subject to

such penalties as provided by law.

Section 6.  Licit property.

Any marijuana, marijuana paraphernalia, licit property or

interest in licit property that is possessed, owned or used in

connection with the medical use of marijuana as allowed under

this act, or acts incidental to such use, shall not be seized or

forfeited.

Section 7.  Misrepresentation prohibited.

It shall be a violation of 18 Pa.C.S. § 5503 (relating to

disorderly conduct) for a person to fabricate or misrepresent a

registry identification card to a law enforcement official.

Section 8.  Registry identification cards.

(a)  Registry.--The department shall establish a registry and

shall issue a registry identification card to a qualifying

patient who submits the following information in accordance with

the department's regulations:

(1)  written certification that the person is a

qualifying patient;

(2)  an application or renewal fee of not less than $50,

which may be based on a sliding scale as determined by the

secretary;

(3)  name, address and date of birth of the patient;

(4)  name, address and telephone number of the patient's

physician; and

(5)  name, address and date of birth of the patient's

primary caregiver, if any.

(b)  Issuance of registry identification card to qualified

patient.--Before issuing a registry identification card, the

department shall verify the information contained in the

application or renewal form submitted under this section. The

department shall approve or deny an application or renewal

within 15 days of receipt of the application or renewal and

shall issue a registry identification card within five days of

approving the application or renewal. The department may deny an

application or renewal only if the applicant fails to provide

the information required under this section or if the department

determines that the information was falsified. Denial of an

application is considered a final agency decision, subject to

review by the Commonwealth Court and the Supreme Court.

(c)  Issuance of registry identification card to caregiver.--

The department shall issue a registry identification card to the

caregiver named in a patient's approved application if the

caregiver signs a statement agreeing to provide marijuana only

to the patient who has named him as caregiver.

(d)  Information on face of registry identification card.--A

registry identification card shall contain the following

information:

(1)  the name, address and date of birth of the patient;

(2)  the name, address and date of birth of the patient's

caregiver, if any;

(3)  the date of issuance and expiration date of the

registry identification card;

(4)  photo identification of the cardholder; and

(5)  such other information that the department may

specify in its regulations.

(e)  Changes in listed information.--A patient who has been

issued a registry identification card shall notify the

department of any change in the patient's name, address,

physician or caregiver, or change in status of the patient's

debilitating medical condition, within ten days of such change,

or the registry identification card shall be deemed null and

void.

(f)  Right-to-Know Law inapplicable.--The department shall

maintain a confidential list of the persons to whom it has

issued registry identification cards. Individual names and other

identifying information on the list shall be confidential, and

shall not be considered a public record under the act of

February 14, 2008 (P.L.6, No.3), known as the Right-To-Know Law,

and shall not be disclosed except to:

(1)  authorized employees of the department as necessary

to perform official duties of the department; or

(2)  authorized employees of State or local law

enforcement agencies, only as necessary to verify that a

person who is engaged in the suspected or alleged medical use

of marijuana is lawfully in possession of a registry

identification card.

Section 9.  Discrimination prohibited.

(a)  Prohibition.--The following acts are prohibited:

(1)  A school or landlord refusing to enroll or lease to,

or otherwise penalize, a person solely for being a registered

qualifying patient or a registered designated caregiver,

unless failing to do so would cause the school or landlord to

lose a monetary or licensing-related benefit under Federal

law or regulations.

(2)  Disqualifying an otherwise qualified patient from

needed medical care. For the purposes of medical care,

including organ transplants, a registered qualifying

patient's authorized use of marijuana in accordance with this

chapter shall be considered the equivalent of the authorized

use of any other medication used at the direction of a

physician and shall not constitute the use of an illicit

substance.

(3)  Unless a failure to do so would cause an employer to

lose a monetary or licensing-related benefit under Federal

law or Federal regulations, an employer may not discriminate

against a person in hiring, termination or any term or

condition of employment or otherwise penalize a person, if

the discrimination is based on either of the following:

(i)  The person's status as a card holder.

(ii)  A registered qualifying patient's positive drug

test for marijuana components or metabolites, unless the

patient used, possessed or was impaired by marijuana on

the premises of the place of employment or during the

hours of employment.

(b)  Custody.--A person otherwise entitled to custody or

visitation or parenting time with a minor shall not be denied

such a right, and there shall be no presumption of neglect or

child endangerment, for conduct allowed under this chapter,

unless the person's actions in relation to marijuana were such

that they created an unreasonable danger to the safety of the

minor as established by clear and convincing evidence.

(c)  State benefit.--No school, landlord or employer may be

penalized or denied any benefit under State law for enrolling,

leasing to or employing a card holder.

Section 10.  Safety compliance.

The department is to monitor or to create a monitoring system

that will test the potency and contamination of marijuana that

is offered under this act. A monitor licensed by the department

may remove from distribution any product that does not meet

department standards.

Section 11.  Funding.

The secretary may accept from any governmental department or

agency, public or private body or any other source grants or

contributions to be used in carrying out the purposes of this

act.

Section 12.  Reports by secretary.

The secretary shall report annually to the Governor and the

General Assembly on the number of applications for registry

identification cards, the number of qualifying patients and

primary caregivers approved, the nature of the debilitating

medical conditions of the patients, the number of registry

identification cards revoked and the number of physicians

providing written certifications for patients. The report shall

not contain any identifying information of patients, caregivers

or physicians.

Section 13.  Health insurance.

Nothing in this act shall be construed to require a

government medical assistance program or private health insurer

to reimburse a person for costs associated with the medical use

of marijuana, or an employer to accommodate the medical use of

marijuana in any workplace.

Section 14.  Sovereign immunity.

The State shall not be held liable for any deleterious

outcomes from the medical use of marijuana by any qualifying

patient.

Section 15.  Rules and regulations.

The secretary shall promulgate rules and regulations to

effectuate the purposes of this act. The regulations shall

establish the application and renewal form, process and fee

schedule and any limitations in the public interest on

debilitating medical conditions not specifically included in

this act.

Section 16.  Duty of Pennsylvania State Police.

The Pennsylvania State Police shall advise the department and

caregivers on effective security measures for the possession and

transportation of medical marijuana and shall inspect sites if

requested.

Section 17.  Effective date.

This act shall take effect in 90 days.