Chapter 05-443

2005 -- H 6052 SUBSTITUTE A AS AMENDED

Enacted 01/03/06

A N A C T

RELATING TO FOOD AND DRUGS -- THE EDWARD O. HAWKINS MEDICAL

MARIJUANA ACT

Introduced By: Representatives Slater, Watson, Diaz, Faria, and Costantino

Date Introduced: March 01, 2005

It is enacted by the General Assembly as follows:

     SECTION 1. Title 21 of the General Laws entitled "Food And Drugs" is hereby amended

by adding thereto the following chapter:

CHAPTER 28.6

THE EDWARD O. HAWKINS AND THOMAS C. SLATER

MEDICAL MARIJUANA ACT

21-28.6-1. Short title. – This chapter shall be known and may be cited as “The Edward

O. Hawkins and Thomas C. Slater Medical Marijuana Act."

21-28.6-2. Legislative findings. – The general assembly finds and declares that:

(1) Modern medical research has discovered beneficial uses for marijuana in treating or

alleviating pain, nausea and other symptoms associated with certain debilitating medical

conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999.

(2) According to the U.S. Sentencing Commission and the Federal Bureau of

Investigation, ninety-nine (99) out of every one hundred (100) marijuana arrests in the United

States are made under state law, rather than under federal law. Consequently, changing state law

will have the practical effect of protecting from arrest the vast majority of seriously ill people

who have a medical need to use marijuana.

(3) Although federal law currently prohibits any use of marijuana, the laws of Alaska,

California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington

permit the medical use and cultivation of marijuana. Rhode Island joins in this effort for the

health and welfare of its citizens.

(4) States are not required to enforce federal law or prosecute people for engaging in

activities prohibited by federal law. Therefore, compliance with this chapter does not put the state

of Rhode Island in violation of federal law.

(5) State law should make a distinction between the medical and nonmedical use of

marijuana. Hence, the purpose of this chapter is to protect patients with debilitating medical

conditions, and their physicians and primary caregivers, from arrest and prosecution, criminal and

other penalties, and property forfeiture if such patients engage in the medical use of marijuana.

(6) The general assembly enacts this chapter pursuant to its police power to enact

legislation for the protection of the health of its citizens, as reserved to the state in the Tenth

Amendment of the United States Constitution.

21-28.6-3. Definitions. – The purposes of this chapter:

(1) “Debilitating medical condition” means:

(i) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired

immune deficiency syndrome, Hepatitis C, or the treatment of these conditions;

(ii) A chronic or debilitating disease or medical condition or its treatment that produces

one or more of the following: cachexia or wasting syndrome; severe, debilitating, chronic pain;

severe nausea; seizures, including but not limited to, those characteristic of epilepsy; or severe

and persistent muscle spasms, including but not limited to, those characteristic of multiple

sclerosis or Crohn’s disease; or agitation of Alzheimer's Disease; or

(iii) Any other medical condition or its treatment approved by the department, as

provided for in section 21-28.6-5.

(2) “Department” means the Rhode Island department of health or its successor agency.

(3) “Marijuana” has the meaning given that term in section 21-28-1.02(26).

(4) “Medical use” means the acquisition, possession, cultivation, manufacture, use,

delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of

marijuana to alleviate a registered qualifying patient’s debilitating medical condition or

symptoms associated with the medical condition.

(5) “Practitioner” means a person who is licensed with authority to prescribe drugs

pursuant to chapter 37 of title 5.

(6) “Primary caregiver” means a person who is at least twenty-one (21) years old and

who has agreed to assist with a person's medical use of marijuana and who doesn't have a felony

drug conviction. A primary caregiver may assist no more than five (5) qualifying patients with

their medical use of marijuana.

(7) “Qualifying patient” means a person who has been diagnosed by a physician as

having a debilitating medical condition and is a resident of Rhode Island.

(8) “Registry identification card” means a document issued by the department that

identifies a person as a qualifying patient or primary caregiver.

(9) “Usable marijuana” means the dried leaves and flowers of the marijuana plant, and

any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.

(10) “Written certification” means the qualifying patient’s medical records, and a

statement signed by a practitioner, stating that in the practitioner’s professional opinion the

potential benefits of the medical use of marijuana would likely outweigh the health risks for the

qualifying patient. A written certification shall be made only in the course of a bona fide

practitioner-patient relationship after the practitioner has completed a full assessment of the

qualifying patient's medical history. The written certification shall specify the qualifying patient's

debilitating medical condition or conditions.

21-28.6-4. Protections for the medical use of marijuana. – (a) A qualifying patient

who has in his or her 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 business or occupational or professional licensing

board or bureau, for the medical use of marijuana; provided, that the qualifying patient possesses

an amount of marijuana that does not exceed twelve (12) marijuana plants and two and one-half

(2.5) ounces of usable marijuana. Said plants shall be stored in an indoor facility.

(b) No school, employer or landlord may refuse to enroll, employ or lease to or otherwise

penalize a person solely for his or her status as a registered qualifying patient or a registered

primary caregiver.

(c) A primary caregiver, who has in his or her 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 business or

occupational or professional licensing board or bureau, for assisting a qualifying patient to whom

he or she is connected through the department’s registration process with the medical use of

marijuana; provided, that the primary caregiver possesses an amount of marijuana which does not

exceed twelve (12) marijuana plants and two and one-half (2.5) ounces of usable marijuana for

each qualifying patient to whom he or she is connected through the department's registration

process.

(d) There shall exist a presumption that a qualifying patient or primary caregiver is

engaged in the medical use of marijuana if the qualifying patient or primary caregiver:

(1) Is in possession of a registry identification card; and

(2) Is in possession of an amount of marijuana that does not exceed the amount permitted

under this chapter. Such presumption may be rebutted by evidence that conduct related to

marijuana was not for the purpose of alleviating the qualifying patient’s debilitating medical

condition or symptoms associated with the medical condition.

(e) A primary caregiver may receive reimbursement for costs associated with assisting a

registered qualifying patient's medical use of marijuana. Compensation shall not constitute sale

of controlled substances.

(f) A practitioner 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 Rhode Island Board of Medical Licensure and Discipline or by any another business or

occupational or professional licensing board or bureau solely for providing written certifications

or for otherwise stating that, in the practitioner's professional opinion, the potential benefits of the

medical marijuana would likely outweigh the health risks for a patient.

(g) Any interest in or right to property that is possessed, owned, or used in connection

with the medical use of marijuana, or acts incidental to such use, shall not be forfeited.

(h) No person shall be subject to arrest or prosecution for constructive possession,

conspiracy, aiding and abetting, being an accessory, or any other offense for simply being in the

presence or vicinity of the medical use of marijuana as permitted under this chapter or for

assisting a registered qualifying patient with using or administering marijuana.

(i) A practitioner nurse or pharmacist 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 business or occupational or professional licensing board or bureau solely

for discussing the benefits or health risks of medical marijuana or its interaction with other

substances with a patient.

(j) A registry identification card, or its equivalent, issued under the laws of another state,

U.S. territory, or the District of Columbia 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, shall

have the same force and effect as a registry identification card issued by the department.

21-28.6-5. Department to issue regulations. – (a) Not later than ninety (90) days after

the effective date of this chapter, the department shall promulgate regulations governing the

manner in which it shall consider petitions from the public to add debilitating medical conditions

to those included in this chapter. In considering such petitions, the department shall include

public notice of, and an opportunity to comment in a public hearing, upon such petitions. The

department shall, after hearing, approve or deny such petitions within one hundred eighty (180)

days of submission. The approval or denial of such a petition shall be considered a final

department action, subject to judicial review. Jurisdiction and venue for judicial review are

vested in the superior court. The denial of a petition shall not disqualify qualifying patients with

that condition, if they have a debilitating medical condition. The denial of a petition shall not

prevent a person with the denied condition from raising an affirmative defense.

(b) Not later than ninety (90) days after the effective date of this chapter, the department

shall promulgate regulations governing the manner in which it shall consider applications for and

renewals of registry identification cards for qualifying patients and primary caregivers. The

department’s regulations shall establish application and renewal fees that generate revenues

sufficient to offset all expenses of implementing and administering this chapter. The department

may vary the application and renewal fees along a sliding scale that accounts for a qualifying

patient’s income. The department may accept donations from private sources in order to reduce

the application and renewal fees.

21-28.6-6. Administration of regulations. – (a) The department shall issue registry

identification cards to qualifying patients who submit the following, in accordance with the

department’s regulations:

(1) written certification as defined in section 23-28.6-3(10) of this chapter;

(2) application or renewal fee;

(3) name, address, and date of birth of the qualifying patient; provided, however, that if

the patient is homeless, no address is required;

(4) name, address, and telephone number of the qualifying patient’s practitioner; and

(5) name, address, and date of birth of each primary caregiver of the qualifying patient, if

any.

(b) The department shall not issue a registry identification card to a qualifying patient

under the age of eighteen (18) unless:

(1) The qualifying patient's practitioner has explained the potential risks and benefits of

the medical use of marijuana to the qualifying patient and to a parent, guardian or person having

legal custody of the qualifying patient; and

(2) A parent, guardian or person having legal custody consents in writing to:

(i) Allow the qualifying patient's medical use of marijuana;

(ii) Serve as one of the qualifying patient's primary caregivers; and

(iii) Control the acquisition of the marijuana, the dosage, and the frequency of the

medical use of marijuana by the qualifying patient.

(c) The department shall verify the information contained in an application or renewal

submitted pursuant to this section, and shall approve or deny an application or renewal within

thirty (30) days of receiving it. The department may deny an application or renewal only if the

applicant did not provide the information required pursuant to this section, or if the department

determines that the information provided was falsified. Rejection of an application or renewal is

considered a final department action, subject to judicial review. Jurisdiction and venue for

judicial review are vested in the superior court.

(d) The department shall issue a registry identification card to each primary caregiver, if

any, who is named in a qualifying patient’s approved application, up to a maximum of two (2)

primary caregivers per qualifying patient.

(e) The department shall issue registry identification cards within five (5) days of

approving an application or renewal, which shall expire one year after the date of issuance.

Registry identification cards shall contain:

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

(2) Name, address, and date of birth of the each primary caregiver of the qualifying

patient, if any;

(3) The date of issuance and expiration date of the registry identification card;

(4) A random registry identification number; and

(5) A photograph.

(f) Persons issued registry identification cards shall be subject to the following:

(1) A qualifying patient who has been issued a registry identification card shall notify the

department of any change in the qualifying patient’s name, address, or primary caregiver; or if the

qualifying patient ceases to have his or her debilitating medical condition, within ten (10) days of

such change.

(2) A registered qualifying patient who fails to notify the department of any of these

changes is responsible for a civil infraction, punishable by a fine of no more than one hundred

fifty dollars ($150). If the person has ceased to suffer from a debilitating medical condition, the

card shall be deemed null and void and the person shall be liable for any other penalties that may

apply to the person's nonmedical use of marijuana.

(3) A registered primary caregiver shall notify the department of any change in his or her

name or address within ten (10) days of such change. A primary caregiver who fails to notify the

department of any of these changes is responsible for a civil infraction, punishable by a fine of no

more than one hundred fifty dollars ($150).

(4) When a qualifying patient or primary caregiver notifies the department of any

changes listed in this subsection, the department shall issue the registered qualifying patient and

each primary caregiver a new registry identification card within ten (10) days of receiving the

updated information and a ten dollar ($10.00) fee.

(5) When a qualifying patient who possesses a registry identification card changes his or

her primary caregiver, the department shall notify the primary caregiver within ten (10) days.

The primary caregiver's protections as provided in this chapter shall expire ten (10) days after

notification by the department.

(6) If a registered qualifying patient or a primary caregiver loses his or her registry

identification card, he or she shall notify the department and submit a ten dollar ($10.00) fee

within ten (10) days of losing the card. Within five (5) days, the department shall issue a new

registry identification card with new random identification number.

(7) If a qualifying patient and/or primary caregiver willfully violates any provision of this

chapter as determined by the department, his or her registry identification card may be revoked.

(g) Possession of, or application for, a registry identification card shall not constitute

probable cause or reasonable suspicion, nor shall it be used to support the search of the person or

property of the person possessing or applying for the registry identification card, or otherwise

subject the person or property of the person to inspection by any governmental agency.

(h)(1) Applications and supporting information submitted by qualifying patients,

including information regarding their primary caregivers and practitioners, are confidential and

protected under the federal Health Insurance Portability and Accountability Act of 1996.

(2) The department shall maintain a confidential list of the persons to whom the

department has issued registry identification cards and shall notify local and state law

enforcement of the number of qualified patients in any given city or town. Individual names and

other identifying information on the list shall be confidential, exempt from the provisions of

Rhode Island Access to Public Information, chapter 2 of title 38, and not subject to disclosure,

except to authorized employees of the department as necessary to perform official duties of the

department.

(i) The department shall verify to law enforcement personnel whether a registry

identification card is valid solely by confirming the random registry identification number.

(j) It shall be a crime, punishable by up to one hundred eighty (180) days in jail and a one

thousand dollar ($1,000) fine, for any person, including an employee or official of the department

or another state agency or local government, to breach the confidentiality of information obtained

pursuant to this chapter. Notwithstanding this provision, the department employees may notify

law enforcement about falsified or fraudulent information submitted to the department.

(k) On or before January 1, 2007, the department shall report to the House Committee on

Health, Education and Welfare and to the Senate Committee on the Judiciary on the use of

marijuana for symptom relief. The report shall provide:

(i) 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

qualifying patients, the number of registry identification cards revoked, and the number of

practitioners providing written certification for qualifying patients;

(ii) An evaluation of the costs permitting the use of marijuana for symptom relief,

including any costs to law enforcement agencies and costs of any litigation;

(iii) Statistics regarding the number of marijuana-related prosecutions against registered

patients and caregivers, and an analysis of the facts underlying those prosecutions;

(iv) Statistics regarding the number of prosecutions against physicians for violations of

this act; and

(v) Whether the United States Food and Drug Administration has altered its position

regarding the use of marijuana for medical purposes or has approved alternative delivery systems

for marijuana.

21-28.6-7. Scope of chapter. – (a) This chapter shall not permit:

(1) Any person to undertake any task under the influence of marijuana, when doing so

would constitute negligence or professional malpractice;

(2) The smoking of marijuana:

(i) In a school bus or other form of public transportation;

(ii) On any school grounds;

(iii) In any correctional facility;

(iv) In any public place; or

(v) In any licensed drug treatment facility in this state.

(3) Any person to operate, navigate, or be in actual physical control of any motor vehicle,

aircraft, or motorboat while under the influence of marijuana. However, a registered qualifying

patient shall not be considered to be under the influence solely for having marijuana metabolites

in his or her system.

(b) Nothing in this chapter shall be construed to require:

(1) a government medical assistance program or private health insurer to reimburse a

person for costs associated with the medical use of marijuana; or

(2) an employer to accommodate the medical use of marijuana in any workplace.

(c) Fraudulent representation to a law enforcement official of any fact or circumstance

relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a

fine of five hundred dollars ($500) which shall be in addition to any other penalties that may

apply for making a false statement for the nonmedical use of marijuana.

21-28.6-8. Affirmative defense and dismissal. – (a) Except as provided in section 21-

28.6-7, a person and a person’s primary caregiver, if any, may assert the medical purpose for

using marijuana as a defense to any prosecution involving marijuana, and such defense shall be

presumed valid where the evidence shows that:

(1) The qualifying patient's medical records indicate and a practitioner has stated that, in

the practitioner’s professional opinion, after having completed a full assessment of the person’s

medical history and current medical condition made in the course of a bona fide practitioner-

patient relationship, the potential benefits of using marijuana for medical purposes would likely

outweigh the health risks for the qualifying patient; and

(2) The person and the person’s primary caregiver, if any, were collectively in possession

of a quantity of marijuana that was not more than what is permitted under this chapter to ensure

the uninterrupted availability of marijuana for the purpose of alleviating the person's medical

condition or symptoms associated with the medical condition.

(b) A person may assert the medical purpose for using marijuana in a motion to dismiss,

and the charges shall be dismissed following an evidentiary hearing where the defendant shows

the elements listed in subsection 21-28.6-8(a).

(c) Any interest in or right to property that was possessed, owned, or used in connection

with a person's use of marijuana for medical purposes shall not be forfeited if the person or the

person's primary caregiver demonstrates the person's medical purpose for using marijuana

pursuant to this section.

21-28.6-9. Enforcement. – (a) If the department fails to adopt regulations to implement

this chapter within one hundred twenty (120) days of the effective date of this act, a qualifying

patient may commence an action in a court of competent jurisdiction to compel the department to

perform the actions mandated pursuant to the provisions of this chapter.

(b) If the department fails to issue a valid registry identification card in response to a

valid application submitted pursuant to this chapter within thirty-five (35) days of its submission,

the registry identification card shall be deemed granted and a copy of the registry identification

application shall be deemed valid registry identification card.

21-28.6-10. Severability. – Any section of this act being held invalid as to any person or

circumstances shall not affect the application of any other section of this act that can be given full

effect without the invalid section or application.

21-28.6-11. Sunset provision. – The provisions of this chapter shall be repealed effective

June 30, 2007.

     SECTION 2. This act shall take effect upon passage and shall expire on June 30, 2007.

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LC01479/SUB A

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