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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| HOUSE BILL |
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| INTRODUCED BY COHEN, MUNDY, SABATINA, VITALI, McGEEHAN, BROWN AND M. O'BRIEN, APRIL 30, 2009 |
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| REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, APRIL 30, 2009 |
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| AN ACT |
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1 | Providing for the medical use of marijuana; and repealing |
2 | provisions of law that prohibit and penalize marijuana use. |
3 | The General Assembly of the Commonwealth of Pennsylvania |
4 | hereby enacts as follows: |
5 | Section 1. Short title. |
6 | This act shall be known and may be cited as the Compassionate |
7 | Use Medical Marijuana Act. |
8 | Section 2. Legislative intent. |
9 | The General Assembly finds and declares as follows: |
10 | (1) Modern medical research has discovered a beneficial |
11 | use for marijuana in treating or alleviating the pain or |
12 | other symptoms associated with certain debilitating medical |
13 | conditions, as found by the National Academy of Sciences' |
14 | Institute of Medicine in March 1999. |
15 | (2) According to the United States Sentencing Commission |
16 | and the Federal Bureau of Investigation, 99 out of every 100 |
17 | marijuana arrests in this nation are made under the laws of |
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1 | states, rather than under Federal law. Consequently, changing |
2 | the law of this Commonwealth on this subject will have the |
3 | practical effect of protecting from arrest seriously ill |
4 | people who have a medical need to use marijuana. |
5 | (3) Although Federal law currently prohibits the use of |
6 | marijuana, the laws of Alaska, California, Colorado, Hawaii, |
7 | Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode |
8 | Island, Vermont and Washington permit the use of marijuana |
9 | for medical purposes, and in Arizona doctors are permitted to |
10 | prescribe marijuana. Pennsylvania joins this effort for the |
11 | health and welfare of its citizens. |
12 | Section 3. Definitions. |
13 | The following words and phrases when used in this act shall |
14 | have the meanings given to them in this section unless the |
15 | context clearly indicates otherwise: |
16 | "Bona fide physician-patient relationship." A physician who |
17 | has completed a full assessment of the patient's medical history |
18 | and current medical condition, including a personal physical |
19 | examination. |
20 | "Compassion center." A facility where usable marijuana may |
21 | be dispensed for medical use. |
22 | "Controlled Substance, Drug, Device and Cosmetic Act." The |
23 | act of April 14, 1972 (P.L.233, No.64), known as The Controlled |
24 | Substance, Drug, Device and Cosmetic Act. |
25 | "Debilitating medical condition." This term includes any of |
26 | the following: |
27 | (1) cancer, glaucoma, positive status for human |
28 | immunodeficiency virus, acquired immune deficiency syndrome |
29 | or the treatment of these conditions; |
30 | (2) a chronic or debilitating disease or medical |
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1 | condition or its treatment that produces one or more of the |
2 | following: cachexia or wasting syndrome; severe or chronic |
3 | pain; severe nausea; seizures, including, but not limited to, |
4 | those characteristic of epilepsy; severe and persistent |
5 | muscle spasms, including, but not limited to, those |
6 | characteristic of multiple sclerosis or Crohn's disease; or |
7 | (3) any other weakening medical condition or its |
8 | treatment that is recognized by licensed medical authorities |
9 | as being treatable with marijuana in a manner that is |
10 | superior to treatment without marijuana. |
11 | "Department." The Department of Health of the Commonwealth. |
12 | "Marijuana." As the term is defined using the spelling |
13 | "marihuana" under the act of April 14, 1972 (P.L.233, No.64), |
14 | known as The Controlled Substance, Drug, Device and Cosmetic |
15 | Act. |
16 | "Medical use." The acquisition, possession, cultivation, |
17 | manufacture, use, delivery, transfer or transportation of |
18 | marijuana or paraphernalia relating to a qualifying patient's |
19 | consumption of marijuana to alleviate the symptoms or effects of |
20 | the patient's debilitating medical condition. |
21 | "Physician." A person licensed to practice medicine and |
22 | surgery under the laws of this Commonwealth. |
23 | "Primary caregiver" or "caregiver." A person who is at least |
24 | 18 years of age, who has never been convicted of a felony drug |
25 | offense, has agreed to assist with a qualifying patient's |
26 | medical use of marijuana and has been designated as primary |
27 | caregiver on the qualifying patient's application or renewal for |
28 | a registry identification card or in other written notification |
29 | to the Department of Health. A primary caregiver shall only have |
30 | one qualifying patient at any one time. A primary caregiver |
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1 | shall not include the qualifying patient's physician. |
2 | "Qualifying patient" or "patient." A person who has been |
3 | diagnosed by a physician as having a debilitating medical |
4 | condition. |
5 | "Registry identification card." A document issued by the |
6 | Department of Health that identifies a person as a qualifying |
7 | patient or primary caregiver. The term shall include a registry |
8 | identification card or its equivalent issued by another state |
9 | government to permit the medical use of marijuana by a |
10 | qualifying patient or to permit a person to assist with a |
11 | qualifying patient's medical use of marijuana. |
12 | "Secretary." The Secretary of Health of the Commonwealth. |
13 | "Usable marijuana." The dried leaves and flowers of |
14 | marijuana, and any mixture or preparation thereof, and does not |
15 | include the seeds, stalks and roots of the plant. |
16 | "Written certification." The qualifying patient's medical |
17 | records, or a statement signed by a physician licensed in |
18 | accordance with the laws of this Commonwealth with whom the |
19 | patient has a bona fide physician-patient relationship, stating |
20 | that in the physician's professional opinion, after having |
21 | completed a full assessment of the qualifying patient's medical |
22 | history and current medical condition, the qualifying patient |
23 | has a debilitating medical condition for which the potential |
24 | benefits of the medical use of marijuana would likely outweigh |
25 | the health risks for the qualifying patient and would likely be |
26 | superior to treatment without the medical use of marijuana. |
27 | Section 4. Compassion centers. |
28 | (a) Duty of department.--The department may establish its |
29 | own and shall license any privately owned compassion center. |
30 | (b) Sales tax.--State sales tax at the rate imposed under |
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1 | Article II of the act of March 4, 1971 (P.L.6, No.2), known as |
2 | the Tax Reform Code of 1971, shall be imposed on all sales of |
3 | marijuana in this Commonwealth. If the county in which a sale of |
4 | marijuana for medical use occurs has a sales tax, that sales tax |
5 | shall be imposed on the sale also. |
6 | (c) Growth, processing or distribution of marijuana for |
7 | medical treatment.--A compassion center shall maintain records |
8 | of all marijuana it grows, processes or distributes for medical |
9 | treatment and shall make its records available for inspection by |
10 | the department. |
11 | Section 5. Medical use of marijuana permitted. |
12 | (a) Freedom from arrest, prosecution or penalty.-- |
13 | (1) A qualifying patient shall not be subject to arrest, |
14 | prosecution or penalty in any manner, or denied any right or |
15 | privilege, including, but not limited to, civil penalty or |
16 | disciplinary action by a professional licensing board, for |
17 | the medical use of marijuana, provided that the patient |
18 | possesses a registry identification card and no more than six |
19 | marijuana plants and one ounce of usable marijuana. |
20 | (2) There shall exist a rebuttable presumption that a |
21 | qualifying patient is engaged in the medical use of marijuana |
22 | if he possesses a registry identification card and no more |
23 | than six marijuana plants and one ounce of usable marijuana. |
24 | The presumption may be rebutted by evidence that conduct |
25 | related to marijuana was not for the purpose of alleviating |
26 | the symptoms or effects of a patient's debilitating medical |
27 | condition. |
28 | (3) A qualifying patient may assert the medical use of |
29 | marijuana as an affirmative defense to any prosecution |
30 | involving marijuana unless the patient was in violation of |
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1 | this section when the events giving rise to the prosecution |
2 | occurred. The defense shall be presumed valid where the |
3 | evidence shows both of the following: |
4 | (i) At the time of the events giving rise to the |
5 | prosecution, the patient's medical records indicated or a |
6 | physician stated that, in the physician's professional |
7 | opinion, after having completed a full assessment of the |
8 | patient's medical history and current medical condition |
9 | made in the course of a bona fide physician-patient |
10 | relationship, the potential benefits of the medical use |
11 | of marijuana would likely outweigh the health risks for |
12 | the patient. |
13 | (ii) The patient and his caregiver, if any, were |
14 | collectively in possession of no more than six marijuana |
15 | plants and one ounce of usable marijuana. |
16 | (4) Possession of, or application for, a registry |
17 | identification card shall not alone constitute probable cause |
18 | to search the person or the property of the person possessing |
19 | or applying for the registry identification card, or |
20 | otherwise subject the person or his property to inspection by |
21 | any governmental agency. |
22 | (5) The provisions of the Controlled Substance, Drug, |
23 | Device and Cosmetic Act, relating to destruction of marijuana |
24 | shall not apply if a qualifying patient has in his possession |
25 | a registry identification card and no more than six marijuana |
26 | plants and one ounce of usable marijuana. |
27 | (b) Patients under 18 years of age.--The provisions of |
28 | subsection (a) shall not apply to a qualifying patient under 18 |
29 | years of age, unless: |
30 | (1) the patient's physician has explained to the patient |
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1 | and the patient's custodial parent, guardian or person having |
2 | legal custody the potential risks and benefits of the medical |
3 | use of marijuana; and |
4 | (2) the custodial parent, guardian or person having |
5 | legal custody consents in writing to: allow the patient's |
6 | medical use of marijuana; serve as the patient's primary |
7 | caregiver; and control the acquisition, dosage and frequency |
8 | of the medical use of marijuana by the patient. |
9 | (c) Immunity of primary caregiver.-- |
10 | (1) A primary caregiver who has in his possession a |
11 | registry identification card shall not be subject to arrest, |
12 | prosecution or penalty in any manner or denied any right or |
13 | privilege, including, but not limited to, civil penalty or |
14 | disciplinary action by a professional licensing board, for |
15 | assisting a qualifying patient to whom the caregiver is |
16 | connected through the department's registration process with |
17 | the medical use of marijuana, provided that the caregiver |
18 | possesses no more than six marijuana plants and one ounce of |
19 | usable marijuana for the patient to whom he is connected |
20 | through the department's registration process. |
21 | (2) There shall exist a rebuttable presumption that a |
22 | primary caregiver is engaged in the medical use of marijuana |
23 | if the caregiver possesses a registry identification card and |
24 | no more than six marijuana plants and one ounce of usable |
25 | marijuana. The presumption may be rebutted by evidence that |
26 | conduct related to marijuana was not for the purpose of |
27 | alleviating the symptoms or effects of a qualifying patient's |
28 | debilitating medical condition. |
29 | (3) A primary caregiver may assert the medical use of |
30 | marijuana as an affirmative defense to any prosecution |
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1 | involving marijuana unless the caregiver was in violation of |
2 | this section when the events giving rise to the prosecution |
3 | occurred. The defense shall be presumed valid where the |
4 | evidence shows that: |
5 | (i) at the time of the events giving rise to the |
6 | prosecution, the patient's medical records indicated or a |
7 | physician stated that, in the physician's professional |
8 | opinion, after having completed a full assessment of the |
9 | patient's medical history and current medical condition |
10 | made in the course of a bona fide physician-patient |
11 | relationship, the potential benefits of the medical use |
12 | of marijuana would likely outweigh the health risks for |
13 | the patient; and |
14 | (ii) the patient and his caregiver, if any, were |
15 | collectively in possession of no more than six marijuana |
16 | plants and one ounce of usable marijuana. |
17 | (4) Possession of, or application for, a registry |
18 | identification card shall not alone constitute probable cause |
19 | to search a person or property of a person possessing or |
20 | applying for the registry identification card or otherwise |
21 | subject the person or his property to inspection by any |
22 | governmental agency. |
23 | (5) The provisions of the Controlled Substance, Drug, |
24 | Device and Cosmetic Act, relating to destruction of marijuana |
25 | determined to exist by the department, shall not apply if a |
26 | primary caregiver has in his possession a registry |
27 | identification card and no more than six marijuana plants and |
28 | one ounce of usable marijuana. |
29 | (d) Immunity of physician.--A physician shall not be subject |
30 | to arrest, prosecution or penalty in any manner, or denied any |
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1 | right or privilege, including, but not limited to, civil penalty |
2 | or disciplinary action by the State Board of Medicine for |
3 | providing written certification for the medical use of marijuana |
4 | to a qualifying patient. |
5 | (e) Personal proximity.--No person shall be subject to |
6 | arrest or prosecution for constructive possession, conspiracy or |
7 | any other offense for simply being in the presence or vicinity |
8 | of the medical use of marijuana as permitted under this act. |
9 | Section 6. Operation of a motorized vehicle prohibited. |
10 | The provisions of this act shall not be construed to permit |
11 | any person to operate, navigate or be in actual physical control |
12 | of any motor vehicle, aircraft or motorboat while under the |
13 | influence of marijuana; or smoke marijuana in a school bus or |
14 | other form of public transportation, on any school grounds, in |
15 | any correctional facility, at any public park or beach, at any |
16 | recreation center or at any place where cigarette smoking is |
17 | prohibited by law or by organizational policy. A person who |
18 | commits an act as provided in this section shall be subject to |
19 | such penalties as provided by law. |
20 | Section 7. Misrepresentation prohibited. |
21 | It shall be a violation of 18 Pa.C.S. § 5503 (relating to |
22 | disorderly conduct) for a person to fabricate or misrepresent a |
23 | registry identification card to a law enforcement official. |
24 | Section 8. Registry identification cards. |
25 | (a) Registry.--The department shall establish a registry and |
26 | shall issue a registry identification card to a qualifying |
27 | patient who submits the following information in accordance with |
28 | the department's regulations: |
29 | (1) written certification that the person is a |
30 | qualifying patient; |
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1 | (2) an application or renewal fee of not less than $50, |
2 | which may be based on a sliding scale as determined by the |
3 | secretary; |
4 | (3) name, address and date of birth of the patient; |
5 | (4) name, address and telephone number of the patient's |
6 | physician; and |
7 | (5) name, address and date of birth of the patient's |
8 | primary caregiver, if any. |
9 | (b) Issuance of registry identification card to qualified |
10 | patient.--Before issuing a registry identification card, the |
11 | department shall verify the information contained in the |
12 | application or renewal form submitted under this section. The |
13 | department shall approve or deny an application or renewal |
14 | within 15 days of receipt of the application or renewal and |
15 | shall issue a registry identification card within five days of |
16 | approving the application or renewal. The department may deny an |
17 | application or renewal only if the applicant fails to provide |
18 | the information required under this section or if the department |
19 | determines that the information was falsified. Denial of an |
20 | application is considered a final agency decision, subject to |
21 | review by the Commonwealth Court and the Supreme Court. |
22 | (c) Issuance of registry identification card to caregiver.-- |
23 | The department shall issue a registry identification card to the |
24 | caregiver named in a patient's approved application if the |
25 | caregiver signs a statement agreeing to provide marijuana only |
26 | to the patient who has named him as caregiver. |
27 | (d) Information on face of registry identification card.--A |
28 | registry identification card shall contain the following |
29 | information: |
30 | (1) the name, address and date of birth of the patient; |
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1 | (2) the name, address and date of birth of the patient's |
2 | caregiver, if any; |
3 | (3) the date of issuance and expiration date of the |
4 | registry identification card; |
5 | (4) photo identification of the cardholder; and |
6 | (5) such other information that the department may |
7 | specify in its regulations. |
8 | (e) Changes in listed information.--A patient who has been |
9 | issued a registry identification card shall notify the |
10 | department of any change in the patient's name, address, |
11 | physician or caregiver, or change in status of the patient's |
12 | debilitating medical condition, within ten days of such change, |
13 | or the registry identification card shall be deemed null and |
14 | void. |
15 | (f) Right-to-Know Law inapplicable.--The department shall |
16 | maintain a confidential list of the persons to whom it has |
17 | issued registry identification cards. Individual names and other |
18 | identifying information on the list shall be confidential, and |
19 | shall not be considered a public record under the act of |
20 | February 14, 2008 (P.L.6, No.3), known as the Right-To-Know Law, |
21 | and shall not be disclosed except to: |
22 | (1) authorized employees of the department as necessary |
23 | to perform official duties of the department; or |
24 | (2) authorized employees of State or local law |
25 | enforcement agencies, only as necessary to verify that a |
26 | person who is engaged in the suspected or alleged medical use |
27 | of marijuana is lawfully in possession of a registry |
28 | identification card. |
29 | Section 9. Funding. |
30 | The secretary may accept from any governmental department or |
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1 | agency, public or private body or any other source grants or |
2 | contributions to be used in carrying out the purposes of this |
3 | act. |
4 | Section 10. Reports by secretary. |
5 | The secretary shall report annually to the Governor and the |
6 | General Assembly on the number of applications for registry |
7 | identification cards, the number of qualifying patients and |
8 | primary caregivers approved, the nature of the debilitating |
9 | medical conditions of the patients, the number of registry |
10 | identification cards revoked and the number of physicians |
11 | providing written certifications for patients. The report shall |
12 | not contain any identifying information of patients, caregivers |
13 | or physicians. |
14 | Section 11. Health insurance. |
15 | Nothing in this act shall be construed to require a |
16 | government medical assistance program or private health insurer |
17 | to reimburse a person for costs associated with the medical use |
18 | of marijuana, or an employer to accommodate the medical use of |
19 | marijuana in any workplace. |
20 | Section 12. Sovereign immunity. |
21 | The State shall not be held liable for any deleterious |
22 | outcomes from the medical use of marijuana by any qualifying |
23 | patient. |
24 | Section 13. Rules and regulations. |
25 | The secretary shall promulgate rules and regulations to |
26 | effectuate the purposes of this act. The regulations shall |
27 | establish the application and renewal form, process and fee |
28 | schedule and any limitations in the public interest on |
29 | debilitating medical conditions not specifically included in |
30 | this act. |
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1 | Section 14. Duty of Pennsylvania State Police. |
2 | The Pennsylvania State Police shall advise the department and |
3 | caregivers on effective security measures for the possession and |
4 | transportation of medical marijuana and shall inspect sites if |
5 | requested. |
6 | Section 15. Effective date. |
7 | This act shall take effect in 90 days. |
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