BILL ANALYSIS Ó SENATE COMMITTEE ON HEALTH Senator Ed Hernandez, O.D., Chair BILL NO: AB 258 --------------------------------------------------------------- |AUTHOR: |Levine | |---------------+-----------------------------------------------| |VERSION: |March 25, 2015 | --------------------------------------------------------------- --------------------------------------------------------------- |HEARING DATE: |June 10, 2015 | | | --------------------------------------------------------------- --------------------------------------------------------------- |CONSULTANT: |Reyes Diaz | --------------------------------------------------------------- SUBJECT : Organ transplants: medical marijuana: qualified patients. SUMMARY : Prohibits the eligibility determination of a patient on the organ transplant waiting list from being based solely on his or her status as a qualified patient for medical marijuana (MM), as specified, or based solely on a positive test for the use of MM by a qualified patient. Existing law: Federal law 1)Establishes the American with Disabilities Act (ADA) for the purpose of eliminating discrimination, including in health services, against individuals with disabilities. Defines "disability" as a physical or mental impairment that substantially limits one or more major life activities of an individual. Defines "major life activity," in general, as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. State law 2)Establishes the Compassionate Use Act, enacted by the approval of Proposition 215 at the November 6, 1996 statewide general election, which allows patients and their primary caregivers to obtain and use MM, as recommended by a physician, in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which MM provides relief. 3)Establishes the Uniform Anatomical Gift Act, which regulates the making and distribution of organ donations. AB 258 (Levine) Page 2 of ? 4)Prohibits the eligibility determination of a patient on the organ transplant waiting list from being based on his or her physical or mental disability. Specifies that "disabilities" has the same meaning as used in the ADA. Provides an exception to the extent that the physical or mental disability has been found by a physician and surgeon, following a case-by-case evaluation of the potential recipient, to be medically significant to the provision of the anatomical gift. This bill: 1)Prohibits a hospital, physician and surgeon, procurement organization, or other person from determining the ultimate recipient of an anatomical gift based solely on a potential recipient's status as a "qualified patient," pursuant to the Compassionate Use Act, or based solely upon a positive test for the use of MM by a potential recipient who is a qualified patient. Provides an exception if a qualified patient's use of MM has been found by a physician and surgeon, following a case-by-case evaluation of the potential recipient, to be medically significant to the provision of the anatomical gift. 2)Applies the prohibition in 1) above to each part of the organ transplant process, including, but not limited to: a) The referral from a primary care provider to a specialist; b) The referral from a specialist to a transplant center; c) The evaluation of the patient for the transplant by the transplant center; and, d) The consideration of the patient for the placement on the official waiting list. 3)Requires the court to accord priority on its calendar and handle expeditiously any action brought to seek any remedy authorized by law for purposes of enforcing compliance with the provisions in this bill. 4)Specifies that the provisions in this bill do not require referrals or recommendations for, or the performance of, medically inappropriate organ transplants. PRIOR VOTES : AB 258 (Levine) Page 3 of ? ----------------------------------------------------------------- |Assembly Floor: |64 - 12 | |------------------------------------+----------------------------| |Assembly Health Committee: |13 - 3 | | | | ----------------------------------------------------------------- COMMENTS : 1)Author's statement. According to the author, arcane public health policies treat MM patients as drug abusers. As a result, patients are denied a life-saving organ transplant solely because their physicians recommend the use of MM. Many of these patients have died after being dropped from waiting lists, and many more are in jeopardy right now. This bill will save lives by ensuring MM patients are not discriminated against in the organ transplant process. 2)Background. The Organ Procurement and Transplantation Network (OPTN) is a public-private partnership that links all professionals involved in the United States donation and transplantation system. The United Network for Organ Sharing (UNOS) serves as the OPTN under contract with the Health Resources and Services Administration of the U.S. Department of Health and Human Services. Currently, every transplant hospital program and organ procurement organization in the U.S. is an OPTN member. Membership means that their transplant programs are certified by UNOS and that they play an active role in forming the policies that govern the transplant community. In California, there are 21 transplant centers (hospitals) and four organ procurement organizations (OPOs), which are authorized by the Centers for Medicare and Medicaid Services to procure organs for transplantation. Each individual hospital comes up with their own policies to evaluate patients and determine eligibility to receive an organ transplant. UNOS develops the policies to determine how available organs are distributed among eligible patients waiting for a transplant. According to OPTN, there are currently 123,288 people in the U.S. waiting for a life-saving organ transplant, and every 10 minutes another person is added to that list. According to UNOS, approximately 23,000 Californians are on the waiting list for an organ transplant. Americans for Safe Access (ASA), the sponsor of this bill, estimates that 1,150 Californians are currently on a transplant waiting list and at risk for being denied an organ AB 258 (Levine) Page 4 of ? transplant due to their MM use. 3)Substance use vs. abuse. A 2011 study published in the University of Michigan Journal of Law Reform, "Transplant Candidates and Substance Use: Adopting Rational Health Policy for Resource Allocation," notes that the autonomy OPOs and hospitals have in determining selection criteria for transplant recipients has led to striking differences in selection tactics with regard to individuals who present issues of substance use and abuse, and one of the greatest areas of regulation that lacks medical and policy foundation is MM use and cigarette smoking. The evidence of cigarette smoking harm is clear. According to the World Health Organization, tobacco use causes 8.8 percent of deaths worldwide and kills more than 430,000 U.S. citizens each year, more than alcohol, cocaine, heroin, homicide, suicide, car accidents, fire, and AIDS combined. Yet, according to a 2008 study of substance abuse policies for liver transplant candidates, those who smoke cigarettes are much more readily accepted by liver transplant centers than those who use MM, even though MM has been found to have beneficial health care uses, including relieving pain and curbing nausea. 4)The effect of MM on organ transplant recipients. A 2009 study published in the American Journal of Transplantation, "Marijuana Use in Potential Liver Transplant Candidates", notes that tetrahydrocannabinol, commonly known as THC, the active component in marijuana, may contribute to the development of various liver diseases and could exacerbate liver disease. However, the study also notes that cannabinoids have been shown to help regulate immune system functions and to have anti-inflammatory properties, potentially reducing the risk of organ rejection. The study finds that, overall, the survival of marijuana users with chronic liver disease who present for transplant evaluation is not significantly different from marijuana non-users and from those findings, the study concludes that marijuana users are not systematically exposed to excess risk of mortality. 5)Existing policies on MM use and organ transplants. According to the California Hospital Association, policies regarding the criteria for MM use and organ transplants vary at each hospital. The eligibility to receive an organ depends upon the type of transplant in question and often includes active alcohol and drug abuse as a disqualifier. Some hospitals allow AB 258 (Levine) Page 5 of ? patients with a history of alcohol or substance abuse to be given the opportunity to re-apply for transplantation after documented compliance with conditions such as abstinence, attending substance abuse treatment, and demonstrating negative drug tests. Many hospitals make exceptions to their illicit substance use policies for MM when lawfully recommended by a physician for medical purposes prior to evaluation. The California Medical Association passed a resolution in December 2014 urging transplant programs to clearly indicate their policies on the use of cannabis to waiting list candidates prior to evaluation of candidacy and opposing blanket restrictions of potential organ transplant donors and recipients based solely on reported or detected MM use. Six states provide legal MM patients the protections proposed in this bill: Arizona, Delaware, Illinois, Minnesota, New Hampshire, and Washington. 6)Aspergillus. Some hospitals make the distinction between smoking and ingesting MM due to the risk of the mold Aspergillus, which can grow on cannabis products and, when smoked, can lead to fatal infections for those with compromised immune systems. According to the Centers for Disease Control and Prevention, most people breathe in Aspergillus spores every day without getting sick. The National Institutes of Health states that Aspergillosis is an infection or allergic response due to the Aspergillus fungus, which is commonly found growing on dead leaves, stored grain, compost piles, or in other decaying vegetation, as well as on marijuana leaves. The National Library of Medicine Web site cites a report, "Fatal Aspergillosis associated with smoking contaminated marijuana, in a marrow transplant recipient," in which a 34-year-old man presented with pulmonary Aspergillosis on the 75th day after marrow transplant for chronic myelogenous leukemia. The patient had smoked marijuana heavily for several weeks prior to admission. Despite aggressive antifungal therapy, the patient died. The report states that physicians caring for such patients should be aware of this potentially lethal complication, especially since patients may smoke marijuana to relieve nausea from chemotherapy. ASA states that AB 258 (Levine) Page 6 of ? numerous professional testing laboratories are now testing legal MM for contaminants, and routine screening for microorganisms would detect Aspergillus and a wide range of other natural contaminants. 7)Policy question. The ADA protects against discrimination, including in health services, for those with disabilities that substantially limit one or more major life activities. Prop 215 allows a qualified patient to obtain and use MM, as recommended by a physician, in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which MM provides relief. AB 1689 (Leiber and Berryhill, Chapter 629, Statutes of 2007), prohibits the eligibility determination of a patient on the organ transplant waiting list from being based on his or her physical or mental disability, and specifies that "disabilities" has the same meaning as used in the ADA. Is it possible that pursuant to federal definitions in the ADA, qualified patients who obtain and use MM to provide relief for illnesses that often substantially limit one or more life activities already have protection in current state law pursuant to AB 1689? 8)Prior legislation. AB 1689 (Lieber and Berryhill), prohibits the eligibility determination of a patient on the organ transplant waiting list from being based on his or her physical or mental disability, as specified. 9)Support. ASA, the sponsor, states that this bill will extend the same protections to legal MM patients that already exist under California law for patients with physical and mental disabilities. Health, Education & Legal Patients' Rights notes it has been 18 years since the Compassionate Use Act was passed, yet our medical industry and the state Legislature have not kept up with the current times or protected the rights of patients that use MM. The Drug Policy Alliance (DPA) argues that even after nearly two decades of MM use in this state, qualified patients can still lose their jobs, housing, children, veterans' benefits, and professional licensure without cause other than their status as a MM qualified patient. DPA states that this is not the case in other states that have approved MM and taken steps to protect MM patients. The Marijuana Policy Project argues that California has the largest population of MM patients in the country, many of whom are gravely ill and for whom MM has been proven to offer AB 258 (Levine) Page 7 of ? relief for a wide variety of conditions. SUPPORT AND OPPOSITION : Support: Americans for Safe Access (sponsor) Alameda County Central Democratic Committee California Cannabis Industry Association California Chapter of the National Organization for the Reform of Marijuana Laws Crusaders for Patients' Rights Drug Policy Alliance Emerald Growers Association Greater Los Angeles Collective Alliance Health, Education & Legal Patients' Rights Legal Services for Prisoners with Children Marijuana Policy Project Mendocino Cannabis Policy Council Hundreds of individuals Oppose: None received. -- END --