BILL ANALYSIS
SB 848
Page 1
Date of Hearing: July 13, 1999
ASSEMBLY COMMITTEE ON HEALTH
Martin Gallegos, Chair
SB 848 (Vasconcellos) - As Amended: July 8, 1999
SENATE VOTE : 21-12
SUBJECT : Medicinal marijuana.
1) SUMMARY : Establishes a statewide medical marijuana
Registration Identification Card Program (RICP). Specifically,
this bill :
2)Finds and declares that the Compassionate Use Act of 1996
(Act) was enacted in order to allow seriously ill residents
access to medical marijuana without fear of criminal
liability, that problems in the Act have impeded the ability
of residents to utilize the protections afforded by the Act,
that more information is needed to assess the needs of
California residents, and that the Act called upon the state
and federal government to develop a plan for safe and
affordable use of the rights provided under the Act.
3)States that it is the intent of the Legislature to clarify the
scope of the application of the Act, promote uniform and
consistent application of the Act, collect data to plan for
future research and resource allocation, enhance the access of
patients and caregivers to medical marijuana through
collective, cooperative cultivation projects, and address
additional issues that were not included within the Act.
4)Finds and declares a state registry will further the goals of
the Act, that the registry system defined in this bill is
wholly voluntary and that a patient entitled to the
protections of the Act need not possess a registry
identification card to claim such protections.
5)Defines for the purposes of this bill:
a) "Qualified patient" (QP) to mean a person who is
entitled to the protections of the Act, but who does not
have a registry identification card (RIC).
b) "Person with a RIC" (PRC) to mean an individual who is a
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QP who has applied for and received a valid RIC.
c) "Attending physician" to mean any physician, as
specified, who has conducted a medical examination of the
patient and has made an assessment regarding whether the
patient has a serious medical condition and whether medical
marijuana is appropriate.
d) "Primary caregiver" to mean the individual designated by
a QP/PRC, who has consistently assumed responsibility for
the QP/PRC, as specified, and may include the operator of a
clinic, a health facility, a residential care facility, a
hospice or a home health agency and from which a QP/PRC
receives medical care, as specified. Authorizes a primary
caregiver to live in another city
or county and requires the primary caregiver to be at least
18, unless that person is the parent of a minor child who
is a QP/PRC.
e) "Serious medical condition" to mean all of the
following: Acquired Immune Deficiency Syndrome (AIDS),
Anorexia, Arthritis, Cachexia, Cancer, chronic pain,
Glaucoma, Migraine, persistent muscle spasms (as
specified), seizures (as specified), severe nausea, and any
other chronic or persistent medical symptom, as specified.
6)Requires the Department of Health Services (DHS) to:
a) Establish and maintain a voluntary program for the
issuance of RICs to QPs who satisfy the requirements of
this bill and voluntarily apply to RICP. Requires DHS to
develop protocols to be used by county health departments
for the purposes of this bill, as specified, and
application forms to be utilized for the RICP.
b) Issue a RIC to an applicant and primary caregiver within
five working days of receiving approval from a county
health department. Requires RICs be:
i) Serially numbered and contain specified cardholder
identification information and a photo, contact
information for the county that approved the application
and a 24-hour toll-free telephone number to contact to
verify the validity of the card. Requires that a
separate RIC be issued to the primary caregiver, if any.
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ii) Valid for one year.
c) Maintain RICP records containing:
i) The name and photo of each PRC and the PRC's
caregiver, if any.
ii) The serial number on the corresponding RIC.
iii) The name and telephone number of the approving
county health department.
Provides that these records are confidential and not
subject to public disclosure and requires this information
to be transmitted to the California Law Enforcement
Telecommunications System (CLETS).
7)Requires every county health department to:
a) Provide applications upon request for RICP.
b) Receive and process completed applications.
c) Maintain records of RICP, as specified.
d) Utilize protocols developed by DHS for the purposes of
this bill, as specified.
e) Process RICP applications within thirty (30) days of
receipt, including all of the following:
i) Verify all personal information contained in the
application, as specified, including contacting a parent
or legal guardian if the applicant is a minor.
ii) Verify that the physician listed on the
application is in good standing to practice medicine, as
specified.
iii) Verify medical records by contacting the
physician directly, as specified.
iv) Photograph the applicant and primary caregiver,
as specified.
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v) Approve or deny the application.
vi) Grant a temporary RIC in the case of an
emergency, as specified.
vii) Upon approving the application, immediately
transmit, as specified, applicant and primary caregiver
information, photographic images of both, and the
approving county health department information to DHS.
viii) Sending a notice of deficiency within 30 days in any
situation where an application is incomplete. The
applicant shall have 30 days from the date of receipt to
rectify the deficiency. The county shall have 14 days
from the date of receipt to approve or deny the
application.
f) Deny a RIC application only for either of the following:
i) Sufficient information was not provided initially
and the applicant did not provide the missing information
within the specified length of time.
ii) The application information provided was false.
Requires that any applicant that has been denied may not
reapply for six months, as specified.
g) Transmit any RIC denial to DHS.
h) Send renewal notices to PRCs and to primary caregivers
no later that 45 days before the expiration of the RIC.
Upon renewal the county shall verify all new information,
may verify all other information and transmit its
determination to DHS.
i) Retain complete RICP records, including all application
information, information documenting efforts to verify
application information, a list of county-approved PRCs,
and a list of all persons whose applications have been
denied by the county and the reason for denial.
j) Submit an annual report to DHS indicating the number of
persons whose applications for RICs have been approved and
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the types of serious medical conditions from which the
applicants suffer. Specifies that the identities or the
persons shall not be reported to DHS, as specified.
8)Authorizes the county health department to designate another
entity, as specified, to perform the functions described in #6
(a) - (i), except for an entity that cultivates or distributes
marijuana.
9)Provides that no person or primary caregiver with a RIC shall
be subject to arrest for possession, transportation, delivery
or cultivation of medical marijuana in an amount approved by
DHS, unless there is reasonable cause to believe that the
information contained in the card is false, the card has been
obtained by means of fraud, or other violation of this bill,
as specified. Specifies that a RIC is not necessary to claim
the protections of the Act.
10)Requires a person who seeks a RIC to a pay a fee, if any, and
to provide specified verification information, including
personal, physician and medical information and a photo.
11)Authorizes DHS to establish an application and renewal fee
for RICP sufficient to cover the expenses of administering
RICP and allows for a waiver of the fee, as specified.
12)Requires a PRC to notify the county health department of any
information change, as specified.
13)Provides that a QP/PRC, a primary caregiver, as specified,
and any person who provides assistance to a QP/PRC or primary
caregiver, as specified, shall not be subject to criminal
liability based solely on conforming to the requirements of
this bill. States that this bill shall not be construed to
authorize an individual to smoke or consume marijuana unless
otherwise authorized by the Act.
14)Provides that a primary caregiver, as specified, and any
person who provides assistance to a QP/PRC or primary
caregiver, as specified, who receives reasonable compensation
for services or expenses, or both, shall not be subject to
criminal liability based solely on conforming to the
requirements of this bill.
15)Authorizes a QP/PRC or a primary caregiver to possess amounts
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of marijuana for the QP's or person's own personal medical use
in amounts to be determined by DHS regulation, as specified.
16)Authorizes QPs, PRCs and primary caregivers to associate or
incorporate, or both, in order to collectively or
cooperatively cultivate marijuana for medical purposes in
accordance with DHS regulations, as specified. Provides that
such activity shall not subject those individuals to criminal
liability based solely on conforming to the requirements of
this bill
17)Requires state and local law enforcement officials to accept
RICs issued by DHS, unless they have reasonable cause to
believe the card is fraudulent.
18)States that nothing in this bill shall require any
accommodation of medical marijuana on the premises of any
place of employment or any correctional facility, as
specified.
19)Provides that an incarcerated person shall not be prohibited
from applying for a RIC and authorizes a correctional
facility, as specified, to permit an incarcerated PRC to
utilize medical marijuana, as specified.
20)Provides that no governmental, private, or any other health
care service plan or insurer shall be liable for any claim for
reimbursement for medical marijuana.
21)Prohibits the smoking of medical marijuana in any place where
smoking is prohibited by law, within 1,000 feet of the grounds
of a school, as specified, on a school bus, in an operated
motor vehicle, or while operating a boat.
22)Provides that with respect to the conditions of probation,
parole or bail, the burden of proof shall be on the recipient
to demonstrate that use of medical marijuana should not be
included in the conditions. Requires the court to consider
the proof and to provide a written record describing the
reason for denial of the request.
23)Prohibits a professional licensing board from taking any
disciplinary action against a licensee based solely on
conformance with the requirements of this bill, as specified.
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24)Provides for specified punishment for any person who commits
fraud or breach of confidentiality associated with this bill,
as specified.
25)Provides that any provision of this bill may be deemed
separate, distinct and independent.
EXISTING LAW :
1)Proposition 215 of November 1996 prohibits any physician from
being punished for having recommended marijuana to a patient
for medical purposes. The Act prohibits the provisions of law
making unlawful the possession or cultivation of marijuana
from applying to a patient, or to a patient' s primary care
giver, who possesses or cultivates marijuana for the personal
medical purposes of the patient upon the recommendation or
approval of a physician. The Act further directs the
Legislature to establish a legal means of distributing
marijuana to patients. Federal law on possession or
distribution of marijuana conflicts with Proposition 215.
2)Establishes a Research Advisory Panel to study and approve
research projects concerning marijuana or hallucinogenic
drugs.
FISCAL EFFECT : Unknown
COMMENTS :
1)PURPOSE OF THIS BILL . This bill establishes a mechanism (a
wallet card or "RIC") which provides a county and
state-approved presumption that the PRC or primary caregiver
is not in violation of existing drug laws. This presumption
would potentially be useful in a situation in which a person
is questioned by a law enforcement officer regarding the use
of marijuana. In fact, the main beneficiaries of this bill
will be California's law enforcement who will see a reduction
in time and energy spent dealing with situations involving
marijuana usage, possession, transportation and cultivation,
as the mechanism established by this bill will provide an
almost instantaneous evaluation of whether or not a crime is
being committed. This bill does not further establish any
rights for an individual to utilize medical marijuana that are
not already established by Proposition 215.
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2)BACKGROUND . Proposition 215 directs the state to implement a
plan to provide for the safe and affordable distribution of
medical marijuana. The author has made several attempts to
realize this intent that were defeated. Additionally,
resistance by both state and federal authorities has prevented
any public distribution of medical marijuana. Numerous
private, local distribution organizations have attempted to
obtain and deliver marijuana for medical purposes, but were
forced to close due to police and judicial action. A number
of California cities either encouraged or openly tolerated
marijuana distribution, but no broad distribution has been
realized. Attorney General Bill Lockyer has created a special
task force to design a public distribution system and has
appointed the author as chair of the effort. This bill
implements the recommendations of the task force.
3)SUPPORT . The Consumer Federation of California (CFC) supports
this bill stating that although reasonable minds may differ on
the morality of medical marijuana, California voters approved
Proposition 215 to ensure that seriously ill persons have the
right to obtain and use marijuana when a health care provider
determines that person would derive benefits from its use.
State and federal governments have failed to respond to the
call for a distribution plan even though such a plan has the
support and endorsement of physicians, law enforcement,
patients and other stakeholders. CFC states this bill
responds to the will of the voters by providing a method of
safe and affordable distribution that comports with the intent
of Proposition 215. The Friends Committee on Legislation of
California writes that this bill protects the public interest
in health and safety and makes it possible for the suffering
of thousands of Californians to be alleviated.
4)OPPOSITION . Californians for Compassionate Use (CCU) and
Dennis Peron, author of Proposition 215, write in opposition
to this bill stating that it is a veiled attempt to
circumnavigate the will of the people under the guise of
protecting patients, solely to appease law enforcement. CCU
states that this bill was created without public input and was
essentially written by opponents of Proposition 215.
Additionally, CCU states that this bill will create 58 county
bureaucracies and that this bill is a threat to the initiative
process and to democracy itself. The Committee on Moral
Concerns (CMC) also writes in opposition to this bill. CMC
states that the latest marijuana research (Institute of
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Medicine [IOM] Report) does not advocate legalizing medical
marijuana or distributing it. CMC states the IOM report
limits its recommendations to patients who are terminally ill
or who have symptoms that don't respond to other medications,
and that current California law is already much more lenient
than the IOM recommendations. CMC states that more research
into the chemical components of marijuana is necessary, that
smoking marijuana only makes people sicker, and that all of
the previous research on medical marijuana has been rejected
by many nationally recognized medical societies. Finally, CMC
states that all legitimate drugs are handled through the
pharmaceutical system and that this bill doesn't address
itself to these avenues, only pot smoking.
5)RISK OF FEDERAL LAW ENFORCEMENT . As noted above, Proposition
215, and probably this bill as well, conflict with federal law
concerning the possession and distribution of marijuana. As
also noted above, while the bill provides that registry
records are confidential and not subject to public disclosure,
there is a provision requiring information to be transmitted
to the California Law Enforcement Telecommunications System
(CLETS). The question arises whether the registry information
developed by this bill will be accessible to federal law
enforcement officials through CLETS or in some other manner,
thereby putting individuals who register at risk.
6)CLARITY NEEDED REGARDING PRIMARY CAREGIVERS . The intent of
this bill is to authorize PRCs and primary caregivers to
possess a RIC. However, the possession of a RIC by a primary
caregiver would signal to a law enforcement officer that the
primary caregiver is authorized to utilize (smoke) marijuana.
The author may wish to amend this bill to clarify the
following:
a) Primary caregivers are considered PRCs and should be
included in the definition of a PRC.
b) The definition of a RIC should detail two distinct
classifications:
i) One for people with serious medical conditions, who
are lawfully authorized to utilize , possess, transport
and cultivate marijuana.
ii) One for primary caregivers, who are lawfully
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authorized to possess, transport and cultivate marijuana,
because of their relationship to a person with a serious
medical condition.
7)TECHNICAL AMENDMENTS :
h) Page 13, Line 40 "or" should be changed to "of"
i) This bill states that: "Qualified patient" (QP) means a
person who is entitled to the protections of the Act, but
who does not have a registry identification card (RIC).
Yet, this bill's definition of a "Person with a RIC"
includes a QP who, by definition, does not have a RIC.
This inconsistency needs to be resolved.
7)PREVIOUS LEGISLATION . SB 535 (Vasconcellos) of 1997 would
have established a study to confirm the value of medical
marijuana, establish medical guidelines for appropriate
administration and use, including treatments. SB 1887
(Vasconcellos) of 1998 would have authorized local governments
to establish medical marijuana distribution programs. SB 535
and SB 1887 were defeated in the Assembly.
8)RELATED LEGISLATION . SB 847 (Vasconcellos) authorizes the
University of California to establish a California Marijuana
Research Program to study the safety and efficacy of marijuana
usage for medical purposes. SB 847 is also being heard on
July 13 in the Assembly Health Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Americans for Medical Rights
Consumer Federation of California
Friends Committee on Legislation of California
Opposition
Californians for Compassionate Use
Committee on Moral Concerns
Analysis Prepared by : Ellen McCormick / HEALTH / (916) 319-2097