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Rhode Island Senate Bill 0710




2005 -- S 0710 SUBSTITUTE B


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LC00988/SUB B


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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2005







RELATING TO FOOD AND DRUGS -- THE EDWARD O. HAWKINS AND THOMAS C.


SLATER MEDICAL MARIJUANA ACT





Introduced By: Senators Perry, Polisena, Damiani, McCaffrey, and Sosnowski




Date Introduced: February 17, 2005




Referred To: Senate Judiciary





It is enacted by the General Assembly as follows:



1-1

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

1-2

by adding thereto the following chapter:

1-3

CHAPTER 28.6

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THE EDWARD O. HAWKINS AND THOMAS C. SLATER MEDICAL MARIJUANA ACT

1-5

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

1-6

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

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

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

1-9

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

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

1-11

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

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

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

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

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who have a medical need to use marijuana.

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

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

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

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health and welfare of its citizens.

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

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

2-4

of Rhode Island in violation of federal law.

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

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

2-7

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

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

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

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

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Amendment of the United States Constitution.

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

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(1) “Debilitating medical condition” means:

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

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

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

2-17

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

2-18

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

2-19

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

2-20

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

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

2-22

provided for in section 21-28.6-5.

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

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

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

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

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

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symptoms associated with the medical condition.

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

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pursuant to chapter 37 of title 5.

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

2-32

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

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

2-34

their medical use of marijuana.

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

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

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

3-4

identifies a person as a qualifying patient or primary caregiver.

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

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

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

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

3-9

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

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

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

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

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debilitating medical condition or conditions.

3-14

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

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who has in his or her possession a registry identification card shall not be subject to arrest,

3-16

prosecution, or penalty in any manner, or denied any right or privilege, including but not limited

3-17

to, civil penalty or disciplinary action by a business or occupational or professional licensing

3-18

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

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

3-20

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

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

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

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primary caregiver.

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(c) A primary caregiver, who has in his or her possession, a registry identification card

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shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or

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privilege, including but not limited to, civil penalty or disciplinary action by a business or

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

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

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

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

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

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process.

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

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

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

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

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

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

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condition or symptoms associated with the medical condition.

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

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

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of controlled substances.

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(f) A practitioner shall not be subject to arrest, prosecution, or penalty in any manner, or

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denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by

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the Rhode Island Board of Medical Licensure and Discipline or by any another business or

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

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

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

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

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

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

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

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

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assisting a registered qualifying patient with using or administering marijuana.

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(i) A practitioner nurse or pharmacist shall not be subject to arrest, prosecution or penalty

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in any manner, or denied any right or privilege, including, but not limited to, civil penalty or

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disciplinary action by a business or occupational or professional licensing board or bureau solely

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

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substances with a patient.

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

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U.S. territory, or the District of Columbia to permit the medical use of marijuana by a qualifying

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patient, or to permit a person to assist with a qualifying patient’s medical use of marijuana, shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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the application and renewal fees.

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

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

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department’s regulations:

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

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(2) application or renewal fee;

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

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the patient is homeless, no address is required;

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

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

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any.

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

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under the age of eighteen (18) unless:

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

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

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legal custody of the qualifying patient; and

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

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

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

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

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medical use of marijuana by the qualifying patient.

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

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

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

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

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

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

6-7

judicial review are vested in the superior court.

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

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

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primary caregivers per qualifying patient.

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

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

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Registry identification cards shall contain:

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

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

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patient, if any;

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

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(4) A random registry identification number; and

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(5) A photograph.

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

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

6-22

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

6-23

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

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such change.

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

6-26

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

6-27

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

6-28

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

6-29

apply to the person's nonmedical use of marijuana.

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

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

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

6-33

more than one hundred fifty dollars ($150).

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

7-1

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

7-2

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

7-3

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

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

7-5

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

7-6

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

7-7

notification by the department.

7-8

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

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

7-10

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

7-11

registry identification card with new random identification number.

7-12

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

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

7-14

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

7-15

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

7-16

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

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

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

7-19

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

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

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

7-22

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

7-23

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

7-24

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

7-25

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

7-26

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

7-27

department.

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

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

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

7-31

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

7-32

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

7-33

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

7-34

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

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

8-2

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

8-3

marijuana for symptom relief. The report shall provide:

8-4

(i) The number of applications for registry identification cards, the number of qualifying

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patients and primary caregivers approved, the nature of the debilitating medical conditions of the

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

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practitioners providing written certification for qualifying patients;

8-8

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

8-9

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

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

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

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

8-13

this act; and

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

8-15

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

8-16

for marijuana.

8-17

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

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

8-19

would constitute negligence or professional malpractice;

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(2) The smoking of marijuana:

8-21

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

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(ii) On any school grounds;

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(iii) In any correctional facility;

8-24

(iv) In any public place; or

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

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

8-27

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

8-28

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

8-29

in his or her system.

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

8-31

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

8-32

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

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

8-34

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

9-1

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

9-2

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

9-3

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

9-4

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

9-5

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

9-6

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

9-7

presumed valid where the evidence shows that:

9-8

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

9-9

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

9-10

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

9-11

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

9-12

outweigh the health risks for the qualifying patient; and

9-13

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

9-14

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

9-15

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

9-16

condition or symptoms associated with the medical condition.

9-17

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

9-18

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

9-19

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

9-20

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

9-21

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

9-22

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

9-23

pursuant to this section.

9-24

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

9-25

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

9-26

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

9-27

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

9-28

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

9-29

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

9-30

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

9-31

application shall be deemed valid registry identification card.

9-32

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

9-33

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

9-34

effect without the invalid section or application.

10-1

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

10-2

June 30, 2007.

10-3

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



=======


LC00988/SUB B


========




EXPLANATION


BY THE LEGISLATIVE COUNCIL


OF


A N A C T


RELATING TO FOOD AND DRUGS -- THE EDWARD O. HAWKINS AND THOMAS C.


SLATER MEDICAL MARIJUANA ACT


***



11-1

&nbspThis act would protect patients with debilitating medical conditions, and their physicians

11-2

and primary caregivers, from arrest and prosecution, criminal and other penalties, and property

11-3

forfeiture if such patients engage in the medical use of marijuana.

11-4

&nbspThis act would take effect upon passage and would expire on June 30, 2007.



=======


LC00988/SUB


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