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SENATE DOCKET, NO. 1612         FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1031

 

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

John F. Keenan

_______________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
              Court assembled:

              The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to establish the Massachusetts Medical Marijuana program.

_______________

PETITION OF:

 

Name:

District/Address:

John F. Keenan

Norfolk and Plymouth

Stanley C. Rosenberg

Hampshire, Franklin and Worcester

Daniel A. Wolf

Cape and Islands

Cleon H. Turner

1st Barnstable

James M. Murphy

4th Norfolk

Martin J. Walsh

13th Suffolk

Randy Hunt

5th Barnstable

Carolyn C. Dykema

8th Middlesex

John H. Rogers

12th Norfolk

Eileen M. Donoghue

First Middlesex

Thomas P. Conroy

13th Middlesex

Paul McMurtry

11th Norfolk


SENATE DOCKET, NO. 1612        FILED ON: 1/18/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1031

By Mr. Keenan, a petition (accompanied by bill, Senate, No. 1031) of John F. Keenan, Stanley C. Rosenberg, Daniel A. Wolf, Cleon H. Turner and other members of the General Court for legislation to establish the Massachusetts Medical Marijuana program.  Public Health. 


The Commonwealth of Massachusetts
 

_______________

In the Year Two Thousand Thirteen

_______________

 

An Act to establish the Massachusetts Medical Marijuana program.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1. Chapter 369 of the Acts of 2012 is hereby amended, by striking the chapter in its entirety, and inserting in place thereof the language contained in section 2 of this act.

              SECTION 2.

              The General Laws are hereby amended by inserting the following as Chapter 94G:

              Section 1. Short Title; Purpose.

              Sections 1 to 15, inclusive, shall be known, and may be cited, as "The Massachusetts Medical Marijuana Act." It is the purpose of this act to protect patients with debilitating medical conditions, as well as their practitioners and designated caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.

              Section 2. Definitions.

              As used in this chapter, the following words shall, unless the context clearly requires

              otherwise, have the following meanings:

              (a)  “Bona fide physician-patient relationship” shall mean a relationship consistent with the standards for professional conduct as established by the American Medical Association, the Massachusetts Board of Registration in Medicine, and other professional boards of licensure as may be applicable to the physician in question; and, in which the physician has specialty training and certification specific to the debilitating medical condition from which the patient suffers; and subject to any further stipulations as established by the applicable professional boards of licensure for the purposes of participating in the Medical Marijuana program.  In establishing regulations to define a bona fide relationship, said boards shall consider the following factors at a minimum:

                   (1) A minimum requirement for an in-person physician patient encounter, to occur at the physician’s Massachusetts office;

                   (2) Provisions to ensure that written certifications for the use of marijuana are given only in the course of normal ongoing treatment for the patient’s debilitating medical condition.

                   (3) Appropriate professional standards regarding the percentage of a physician’s practice which may consist of the issuing of written certifications for marijuana

                   (4) The extent of the physician’s responsibility to inform and counsel the patient on the advantages, disadvantages, potential adverse effects of, and alternatives to treatment of their debilitating medical condition through the use of marijuana

                   (5) The appropriate type and extent of specialty training a physician must have in order to be qualified to provide written certification for the use of medical marijuana in the treatment of each specific debilitating medical condition

              (b)  “Cultivation” includes planting, propagating, cultivating, growing, harvesting and transporting to licensed dispensaries.

              (c)  "Debilitating medical condition" means one or more of the following:  Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, and any other medical condition or its treatment approved by the department, as provided for in section 9 of this chapter.

              (d)  "Department" means the Massachusetts Department of Public Health or its successor agency.

              (e)  “Dispensing” means the selling, providing, distribution and delivery of usable marijuana from a licensed dispensary to qualifying patients and primary caregivers.

              (f)  “Licensed cultivator” or “cultivator” means a non-profit corporation organized under the provisions of chapter 180 of the Massachusetts General Laws, with appropriate expertise in agriculture, organized for the purpose of cultivating usable marijuana for medical use in Massachusetts and selling, delivering, transporting or distributing usable marijuana for medical use only to licensed dispensaries under sections 1 to 15, inclusive, of this chapter, and that is licensed as a producer by the department pursuant to this chapter.

              (g) “Licensed dispensary” or “dispensary” means a non-profit corporation organized under the provisions of chapter 180 of the Massachusetts General Laws, licensed as a dispensary pursuant to this chapter.

              (h)  “Marijuana" has the meaning given the term “marihuana” in Chapter 94C Section 1.

              (i)  "Medical use" means the acquisition, possession, use, delivery, transfer, or transportation of usable marijuana or paraphernalia relating to the consumption of usable marijuana to alleviate the symptoms or effects of a registered qualifying patient's or registered qualifying minor patient’s debilitating medical condition.

              (j)  "Physician" means a person who is registered pursuant to Chapter 112 Section 2 and Sections 7 and 7A of Chapter 94C, who is authorized to prescribe drugs pursuant to Chapter 94C Section 18, and whose principal place of practice is located in Massachusetts.

              (k)  "Primary caregiver" means a person who is at least twenty-one (21) years of age and a resident of Massachusetts who has agreed to assist with a person's medical use of usable marijuana, who does not have a felony drug conviction.  An employee of a hospice provider or nursing facility providing care to an eligible patient may be substituted for a primary caregiver. A primary caregiver may assist no more than one (1) qualifying patient, or in the case of a hospice provider or nursing facility no more than five (5) qualified patients with their medical use of usable marijuana.

              (l)  "Qualifying patient" means a person over the age of eighteen who is a resident of Massachusetts and has been diagnosed by a physician as having a debilitating medical condition.  “Qualifying patient” shall not include an inmate confined in a correctional facility of the department of correction or in a county correctional facility and shall not include a person receiving residential treatment at any facility, halfway house or treatment program unit as defined in Section 4 of Chapter 111B or receiving residential treatment at any facility, federal, public or private, licensed under Chapter 111E. A qualifying patient shall have only one (1) designated primary caregiver.

              (m) “Qualifying minor patient” means a person under the age of eighteen who is a resident of Massachusetts and has been diagnosed by a physician as having a debilitating medical condition, whose custodial parent, guardian, or person having legal custody consents in writing to allow the qualifying minor patient’s medical use of usable marijuana, agrees to serve as a qualifying minor patient’s primary caregiver, and controls the acquisition, dosage, and frequency of the medical use of usable marijuana by the qualifying minor patient.  “Qualifying minor patient” shall not include an inmate confined in a correctional facility of the department of correction or in a county correctional facility, shall not include a juvenile placed under the care of a probation officer or committed to the custody of the department of youth services pursuant to chapter 119 sections 52 through 84 inclusive, and shall not include a person receiving residential treatment at any facility, halfway house or treatment program unit as defined in Section 4 of Chapter 111B or receiving residential treatment at any facility, federal, public or private, licensed under Chapter 111E. A qualifying minor patient shall have no more than two (2) designated primary caregivers.

              (n)  “Registry identification card” shall mean a personal identification card issued by the Department to a qualifying patient or primary caregiver indicating registry with the department in accordance with this chapter.  The registration card shall verify that a physician has provided a written certification to the qualifying patient, or that the patient has designated the individual as a personal caregiver.  The registration card shall identify for the Department and law enforcement those individuals who are exempt from Massachusetts criminal and civil penalties for conduct pursuant to the medical use of usable marijuana.  

              (o) "Usable marijuana" means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks, and roots of the plant.

              (p) "Written certification" means an original document, in a tamper resistant form, signed by a physician, made only in the course of a bona fide physician-patient relationship, stating that in the physician’s professional opinion, after having completed a full physical examination and a full assessment of the qualifying patient’s or qualifying minor patient’s medical history and current medical condition, the qualifying patient or qualifying minor patient has a debilitating medical condition for which recognized drugs or treatments, including pill and synthetic formulations of tetrahydrocannabinol and other cannabinoid substances listed on Schedules II through V of 21 CFR Part 1308, are not or would not be effective and  the potential benefits of the medical use of usable marijuana would likely outweigh the health risks for the qualifying patient or qualifying minor patient.  The written certification shall contain the name and form of the type of usable marijuana being recommended, the amount thereof, not to exceed two ounces per month, and the time period for which the use of marijuana for medical purposes is recommended, not to exceed one year.   The written certification shall specify the qualifying patient's or qualifying minor patient’s debilitating medical condition or conditions,  the length of time the qualifying patient or qualifying minor patient has been under the care of the physician providing the medical provider certification for patient eligibility, and shall include the name, business address and business telephone number of the physician; the physician’s active license number issued by the board of registration in medicine; an attestation that the physician’s primary place of practice is located within the Commonwealth of Massachusetts; the physician’s signature and the date;  the qualifying patient’s or qualifying minor patient’s name, address and date of birth; a reasonable photocopy of the qualifying patient or qualifying minor patient’s Massachusetts driver’s license or comparable state of  Massachusetts identification, or federal issued photo identification card, or some other form of photographic identification and documentation, as determined by the department, verifying the qualifying patient’s or qualifying minor patient’s identity and Massachusetts residence; the qualifying patient’s or qualifying minor patient’s signature; the name, address and date of birth of the qualifying patient’s or qualifying minor patient’s primary caregiver, if applicable; documented parental consent, if applicable; and, the signed consent of the patient for release of medical information related to the qualifying patient’s or qualifying minor patient’s debilitating medical condition, on a form provided by the department. Notwithstanding the above, nothing in this definition shall prohibit the department from establishing an electronic certification that is in substantial conformance with the requirements of this definition. 

              Section 3. Medical marijuana administration fund

              There shall be established and set up on the books of the commonwealth a Medical Marijuana Administration Fund to be administered by the department. The fund shall consist of monies collected by the department under sections 4, 5 and 7 of this chapter. The department shall make distributions from said fund for the purposes of the promulgation and enforcement of regulations and all activities associated with the implementation of this chapter.

              Section 4. Licensed Cultivators

              (a) No person shall act as a cultivator, and no entity may act as a cultivator or represent that such entity is a licensed cultivator unless such entity has obtained a license from the department pursuant to this chapter.

              (b) The department of public health shall determine the number of cultivators appropriate to meet the needs of qualifying patients and qualifying minor patients in this state and shall adopt regulations, in accordance with the provisions of chapter 30A of the general laws, to provide for the licensure, standards and locations for cultivators and specify the maximum number of cultivators that may be licensed at any time. On and after the effective date of such regulations, the department may license any entity who applies for a license in accordance with such regulations, provided (1) the department deems such applicant qualified to cultivate usable marijuana and sell, deliver, transport or distribute usable marijuana solely within this state pursuant to this chapter (2) the person, or any principal officer, board member, employee or agent of the cultivator has not been convicted of a felony, and (3) the number of cultivator licenses issued does not exceed the number appropriate to meet the needs of qualifying patients and qualifying minor patients in this state, as determined by the department pursuant to this subsection.  At a minimum, such regulations shall:

                   (1) Indicate the maximum number of cultivators that may be licensed in this state at any time, which number shall not be less than three nor more than ten cultivators;

                   (2) Provide that no usable marijuana may be sold, delivered, transported or distributed by a cultivator from or to a location outside of this state;

                   (3) Establish a nonrefundable application fee of not less than twenty-five thousand dollars for each application submitted for a cultivator license;

                   (4) Establish a license fee and renewal fee for each licensed cultivator, provided the aggregate amount of such license and renewal fees shall not be less than the amount necessary to cover the direct and indirect cost of licensing and regulating cultivators pursuant this chapter;

                   (5) Provide for renewal of such cultivator licenses at least every five years;

                   (6) Establish schedules governing the number of days by which an application once filed must be approved by the department;

                   (7) Require that each application for a license to cultivate shall include the proposed legal name, proposed articles of organization, and proposed by-laws of the applicant; provided, that no application shall be given final approval under this chapter before the applicant has also received approval as provided for in chapter 180 of the Massachusetts General laws for the same proposed legal name, articles of organization and by-laws, and has met all other requirements of said chapter 180 for incorporation as non-profit corporation.

                   (8) Require that each application shall also include the proposed physical address where the cultivation will occur, if a precise address has been determined, or, if not, the general location where it would be located, a description of the enclosed, locked facility that would be used in the cultivation of usable marijuana, and the name, address, and date of birth of each principal officer and board member of the entity seeking the license to cultivate;

                   (9) Require that a licensed cultivator notify the department within ten (10) days of when a principal officer or board member ceases to be associated with and/or work for the licensed cultivator and notify the department of new principal officers or board members;

                   (10) Require that a licensed cultivator maintain a personnel record for each employee that includes an application for employment and a record of any disciplinary action taken;

                   (11) Establish financial requirements for cultivators, under which each applicant demonstrates the financial capacity to build and operate a usable marijuana cultivation facility;

                   (12) Establish fair and appropriate annual compensation limits for the executive staff, employees, officers, directors and board members of licensed cultivators;

                   (13) Establish health, safety and security requirements for licensed cultivators, which shall include, but need not be limited to, a requirement that the applicant or licensed cultivator demonstrate: (i) the ability to maintain adequate control against the diversion, theft and loss of usable marijuana cultivated by the cultivator, and (ii) the ability to cultivate pharmaceutical grade usable marijuana for medical use in a secure indoor facility;

                   (14) Establish standards and procedures for revocation, suspension, summary suspension and nonrenewal of cultivator licenses;

                   (15) Establish other licensing, renewal and operational standards deemed necessary by the department

              (c) Within five (5) days of receipt of an application for a license to cultivate, the department shall forward to the clerk of the municipality where the cultivator is proposed a copy of the application and supporting documentation.

              (d) Any fees collected by the Department under this section shall be paid to the department and deposited to the account established in section 3 of this act.

              (e) A licensed cultivator shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for cultivating usable marijuana or selling, delivering, transporting or distributing usable marijuana to licensed dispensaries in this state under this chapter.

              (f) Notwithstanding section (D), a licensed cultivator shall be subject to arrest, prosecution or civil or criminal penalties pursuant to the laws of this state if the licensed cultivator: (1) sells, provides, delivers, transports or distributes usable marijuana to a person who is not a licensed dispensary, or (2) obtains or transports usable marijuana outside of this state in violation of federal law.

              (g) The facilities and properties of a licensed cultivator used for the purpose of cultivating usable marijuana in accordance with the section shall be subject to administrative inspections in accordance with section 30 of chapter 94C.

              (h) The department shall be authorized to receive criminal offender record information from the Department of Criminal Justice Information Systems to enforce this section in accordance with Section 172 of Chapter 6 of the Massachusetts General Laws.

              (i) A licensed cultivator shall not be permitted to also hold or apply for a license as a dispensary.

              Section 5.  Licensed Dispensaries

              (a) No person shall act as a dispensary, and no entity shall act or represent that such entity is a licensed dispensary unless such entity has obtained a license from the Department pursuant to this section.

              (b) The department shall determine the number of dispensaries appropriate to meet the needs of qualifying patients and qualifying minor patients in this state and shall adopt regulations, in accordance with chapter 30A of the General Laws, to provide for the licensure and standards for dispensaries and specify the maximum number of dispensaries that may be licensed. On and after the effective date of such regulations, the department may license any entity who applies for a license in accordance with such regulations, provided (1) the department deems such applicant qualified to acquire, possess, sell, distribute and dispense usable marijuana pursuant to this chapter; (2) the person, or any principal officer, board member, employee or agent of the dispensary has not been convicted of a felony; and (3) the number of dispensary licenses issued does not exceed the number appropriate to meet the needs of qualifying patients and qualifying minor patients, as determined by the department pursuant to this chapter. At a minimum, such regulations shall:

                   (1) Indicate the maximum number of dispensaries that may be licensed in this state at any time, which number shall not be less than three nor more than ten dispensaries;

                   (2) Establish standards and procedures that permit the dispensing of usable marijuana only by a secure shipment system, which may include the use of non-descriptive packaging and the use of private commercial package delivery companies;

                   (3) Establish standards and procedures for the payment for usable marijuana by qualifying patients, with such methods to include but not be limited to credit card, check, electronic transfer; provided further that the use of cash or funds from the transitional assistance financial assistance program as established in Chapter 18 of the Massachusetts General Laws shall be prohibited;

                   (4) Provide that no usable marijuana may be dispensed from, obtained from or transferred to a location outside of this state;

                   (5) Establish a licensing fee and renewal fee for each licensed dispensary, provided such fees shall not be less than the amount necessary to cover the direct and indirect cost of licensing and regulating dispensaries pursuant to this chapter;

                   (6) Require that each application for a license to dispense shall include the proposed legal name, proposed articles of incorporation, and proposed bylaws of the applicant, the proposed physical address where the dispensary will be located, if a precise address has been determined, or, if not, the general location where it would be located, and the name, address, and date of birth of each principal officer and board member of the entity seeking the license to dispense;

                   (7) Require that each application for a license to dispense shall include the proposed legal name, proposed articles of organization, and proposed by-laws of the applicant; provided, that no application shall be given final approval under this chapter before the applicant has also received approval as provided for in chapter 180 of the Massachusetts General laws for the same proposed legal name, articles of organization and by-laws, and has met all other requirements of said chapter 180 for incorporation as a charitable organization.

                   (8) Require that each application shall also include the proposed physical address where the dispensing will occur, if a precise address has been determined, or, if not, the general location where it would be located, and the name, address, and date of birth of each principal officer and board member of the entity seeking the license to dispense;

                   (9) Require that a licensed dispensary maintain a personnel record for each employee that includes an application for employment and a record of any disciplinary action taken; 

                   (10) Provide for renewal of such dispensary licenses at least every two years;

                   (11) Establish fair and appropriate annual compensation limits for the executive staff, employees, officers, directors and board members of licensed dispensaries;

                   (12) Establish health, safety and security requirements for licensed dispensaries, which shall include, but need not be limited to: (i) The ability to maintain adequate control against the diversion, theft and loss of usable marijuana acquired or possessed by the licensed dispensary, and (ii) the ability to maintain the knowledge, understanding, judgment, procedures, security controls and ethics to assure optimal safety and accuracy in the distributing, dispensing and use of medical marijuana;

                   (13) Establish standards and procedures for revocation, suspension, summary suspension and nonrenewal of dispensary licenses; and

                   (14) Authorize the Department to conduct criminal record checks with the Department of Criminal Justice Information Systems to enforce this section in accordance with Section 172 of Chapter 6 of the Massachusetts General Laws; and

                   (15) Establish other licensing, renewal and operational standards deemed necessary by the department.

              (c) A licensed dispensary shall dispense usable marijuana only to qualifying patients or primary caregivers for qualifying minor patients upon receipt of a written certification, by mail or commercial courier, and in an amount, in a form, and for a time period as indicated on the certification.

              (d) A licensed dispensary may not dispense an amount of usable marijuana to a qualifying patient or a primary caregiver that the dispensary knows would cause the recipient to possess more usable marijuana than is permitted under this chapter.

              (e) A licensed dispensary shall dispense usable marijuana in good faith as a medicine, and not for the purpose of evading the provisions of Chapter 94C.

              (f) A licensed dispensary dispensing usable marijuana in accordance with the recommendations of a written certification shall package the substance in a container, affixing to the container a label showing the date of filling, the dispensary name and address, a serial number assigned to the container, the name of the patient, the name of the prescribing physician, and a description of the type of usable marijuana.   Upon written request of an elderly person, as defined in section 14 of chapter 19A or a person visually impaired, directions on the label affixed by the dispensary to a container of usable marijuana shall be typed in a print size allowing no more than ten characters per inch.  The container within which the usable marijuana is packaged shall be shipped to the qualifying patient or personal caregiver identified in the certification in a secure manner subject to regulations promulgated by the department.

              (g) The facilities and properties of a licensed dispensary used for the purpose of dispensing usable marijuana in accordance with the section shall be subject to administrative inspections in accordance with section 30 of chapter 94C.

              (h) Usable marijuana shall be an “additional drug” under the provisions of subsection (a)(1) of section 24A of chapter 94C.

              (i) Licensed dispensaries shall be registered as participants in the prescription monitoring program established in section 24A of chapter 94C, and shall dispense useable marijuana in accordance with and subject to regulations promulgated thereunder as applicable to pharmacies. 

              Notwithstanding the above, a licensed dispensary shall run a prescription monitoring screen and if it determines that a qualifying patient or primary caregiver for a qualifying minor patient has had useable marijuana dispensed to such patient or primary caregiver by any other licensed dispensary, it shall not dispense useable marijuana to that patient or caregiver.

              (j) A licensed dispensary shall not be subject to arrest or prosecution, penalized in any manner, including, but not limited to, being subject to any civil penalty, or denied any right or privilege, including, but not limited to, being subject to any disciplinary action by a professional licensing board, for acquiring, possessing, distributing or dispensing usable marijuana pursuant to sections this chapter.

              (k) Notwithstanding subsection (l), a licensed dispensary shall be subject to arrest, prosecution or civil or criminal penalties pursuant to the laws of this state if the licensed dispensary: (1) acquires usable marijuana from a person other than a licensed cultivator; (2) distributes or dispenses usable marijuana to a person who is not (a) a qualifying patient registered under section 3 or 14 of this act, or (b) a primary caregiver of such qualifying patient; or (3) obtains or transports usable marijuana outside of this state in violation of federal law.

              (l) No person who has been convicted of a felony drug offense may be the principal officer, board member, agent, or employee of licensed dispensary. A person who is employed by or is an agent, principal officer, or board member of a medical treatment center in violation of this section is guilty of a civil violation punishable by a fine of up to one thousand dollars ($1,000).

              (m) No signs or other printed matter advertising any brand or kind of usable marijuana, or promoting the use of usable marijuana for any reason shall be displayed on the exterior or interior of any licensed premises.

              (n) A licensed dispensary shall not be permitted to also hold or apply for a license as a cultivator.

              Section 6.   Written certifications

              (a) A physician shall provide a written certification to a qualifying patient or qualifying minor patient only for a debilitating medical condition.

              (b) A written certification may not be provided to a qualifying patient or qualifying minor patient by a physician who is related to the qualifying patient or qualifying minor patient within the second degree of consanguinity or the first degree of affinity, including a spouse, child, stepchild, parent, step-parent, sibling, grandparent, mother-in-law, father-in-law, son-in law, daughter-in-law, brother-in-law, sister-in-law, or step sibling of the patient, or other relative residing in the same residence of the physician.

              (c)  A written certification shall be valid for one year from the date signed by the physician.

              (d)  If the department believes a physician has failed to comply with any provision of this section, falsified any material or information submitted to the department, or has otherwise engaged in unprofessional conduct that adversely effects the safe and legitimate administration of the program established by this chapter, the department may submit to the appropriate professional licensing body a request for a review of the physician’s conduct by said licensing body.  The professional licensing body shall determine the appropriate disciplinary actions, if any, to be taken in each case.  Upon submitting such a request, and until a response is received from the professional licensing body, the department may hold in abeyance the approval of any applications certified by the physician.

              (e) Nothing in this law requires any physician to provide a written certification for the use of usable marijuana for a qualifying patient or qualifying minor patient, and a physician shall not be held liable for any alleged consequences of refusing to authorize or recommend such use.

              Section 7.  Registry Identification Cards

              (a) The department shall issue a registry identification card to a qualifying patient upon the qualifying patient’s filing with the department of the original written certification of the qualifying patient’s physician, and an application fee or renewal fee, provided that written certification is received by the department no more than sixty (60) days after being certified by said physician, and provided further that such fees shall not be less than the amount necessary to cover the direct and indirect cost of issuing and regulating the use of registry identification cards pursuant to this chapter.

              (b) The department shall issue a registry identification card to the primary caregiver of a qualifying minor patient upon the qualifying minor patient’s filing with the department the original written certification of the qualifying minor patient’s physician, in addition to the following:

                   (1) written documentation that the qualifying minor patient’s physician has explained the potential risks and benefits of the use of usable marijuana to both the qualifying minor patient and parent or legal guardian of the qualifying minor patient;

                   (2) written documentation that the qualifying minor patient’s parent or legal guardian consents to allow the qualifying minor patient’s use of usable marijuana, consents to serve as the qualifying minor patient’s primary caregiver; and, consents to control the acquisition of the usable marijuana, dosage and the frequency of the use of usable marijuana by the qualifying minor patient;

                   (3) a reasonable photocopy of the primary caregiver’s Massachusetts driver’s license or comparable state of  Massachusetts identification, or federal issued photo identification card, or some other form of photographic identification and documentation, as determined by the department, verifying the primary caregiver’s identity and Massachusetts residence; and

                   (4) a photograph.

              (c) The department shall issue a registry identification card to a primary caregiver for the purpose of managing the well-being of a qualifying patient upon the completion and approval of a primary caregiver application form as approved by the department and signed by the primary caregiver, which shall have attached thereto the following: 

                   (1) written documentation that the primary caregiver consents to serve as the qualifying patient’s primary caregiver;

                   (2) a reasonable photocopy of the primary caregiver’s Massachusetts driver’s license or comparable state of  Massachusetts identification, or federal issued photo identification card, or some other form of photographic identification and documentation, as determined by the department, verifying the primary caregiver’s identity and Massachusetts residence; and

                   (3) a photograph.

              (d) For purposes of this subsection, a photograph shall be in in color, printed on photo quality paper, be 2 x 2 inches (51 x 51 mm) in size, sized such that the head is between 1 inch and 1 3/8 inches (between 25 and 35 mm) from the bottom of the chin to the top of the head, be taken within the last 6 months to reflect the qualifying patient’s or primary caregiver’s current appearance, be taken in front of a plain white or off-white background, be taken in full-face view directly facing the camera, show a neutral facial expression with both eyes open, be taken without a hat or head covering unless the hat or head covering is worn daily for a religious purpose, be without prescription glasses, a hearing device or similar articles unless such are normally worn, and be without dark glasses or non-prescription glasses with tinted lenses unless such are needed for medical reasons (a medical certificate may be required).

                            (e) The department is authorized to conduct criminal record checks with the Department of Criminal Justice Information Systems in accordance with Section 172 of Chapter 6 of the Massachusetts General Laws to verify that a primary caregiver does not have a felony drug conviction.

              (f) The department may verify information on each written certification and application and accompanying documentation by contacting each qualifying patient, qualifying minor patient or primary caregiver  by telephone or mail, or if proof of identity is uncertain, the department may require a face-to-face meeting and the production of additional identification materials; when applicable, contacting a minor’s parent or legal representative; contacting the Massachusetts Board of Registration in Medicine or other licensing agencies to verify that the physician is licensed to practice and prescribe controlled substances in Massachusetts and is in good standing; and, contacting the physician to obtain further documentation to verify the qualifying patient’s or qualifying minor patient’s medical diagnosis and medical condition.

              (g) The department shall approve or deny an application within thirty (30) calendar days of receipt of the completed application. A request by the department for additional information shall toll this period until such time as the requested information is received.

              (h) The department shall deny an application if the application fails to satisfy any requirement of this chapter, if the applicant fails to provide the information required, if written certification for a debilitating medical condition is provided by a physician not meeting the requirements for specialty training for that condition as defined by the physician’s professional board of licensure,or if the department determines that any of the information provided is false. A person whose application has been denied shall not reapply for six (6) months from the date of the denial, unless otherwise authorized by the department, and is prohibited from all lawful privileges provided by this rule and act. Denial 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.

              (i) The department shall issue a registry identification card to a qualifying patient within five (5) business days of approving an application. A registry identification card shall contain the name, address and date of birth of the qualifying patient and primary caregiver (if any), the date of issuance and expiration date of the registry identification card, a random registry identification number maintained by the department which identifies the qualifying patient, and a photograph of the qualifying patient. Unless renewed at an earlier date, suspended or revoked, a registry identification card shall be valid for a period of two (2) years from the date of issuance and shall expire at midnight on the day indicated on the registry identification card as the expiration date.

              (j) The department shall issue a registry identification card to a primary caregiver within five (5) business days of approving an application. A registry identification card shall contain the name, address and date of birth of the primary caregiver, the name, address and date of birth of the qualifying patient or qualifying minor patient, a random registry identification number maintained by the department which identifies the primary caregiver, the date of issuance and expiration date of the registry identification card, and a photograph of the primary caregiver. Unless renewed at an earlier date, suspended or revoked, a registry identification card shall be valid for a period of two (2) years from the date of issuance and shall expire at midnight on the day indicated on the registry identification card as the expiration date.

              (k) A qualifying patient or primary caregiver who possesses a registry identification card shall notify the department of any change in the person's name, address, qualified patient's or qualifying minor patient’s primary caregiver, or change in status of the qualifying patient's debilitating medical condition, within thirty (30) calendar days of the change. An extension shall be granted by the department upon the showing of good cause. Failure to provide notification of any change shall result in the immediate revocation of the registry identification card and all lawful privileges provided under the act.  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 a primary caregiver a new registry identification card within ten (10) days of receiving the updated information and a twenty-five dollar ($25.00) fee.

              (l) Each registry identification card issued by the department is valid for one (1) year from the date of issuance. A qualifying patient or primary caregiver shall apply for a registry identification card renewal no less than thirty (30) calendar days prior to the expiration date of the existing registry identification card in order to prevent interruption of possession of a valid (unexpired) registry identification card.  Written certifications from certifying physicians must be obtained within sixty (60) calendar days prior to the expiration of the qualifying patient’s or qualifying minor patient’s registry identification card.

              (m) A registry identification card shall not be transferred by assignment or otherwise to other persons. Any attempt shall result in the immediate revocation of the registry identification card and all lawful privileges provided by this chapter.

              (n) The qualifying patient or primary caregiver shall report a lost or stolen registry identification card to the department within five (5) business days after discovery. An extension shall be granted by the director upon the showing of good cause. Upon notification, and payment of a twenty-five dollar ($25.00) fee, the department shall issue a new registry identification card. The qualifying patient or primary caregiver shall verify the accuracy of all documentation in the most recent application.  Within five (5) days, the department shall issue a new registry identification card. Unless documentation in the most recent application has changed, the qualifying patient or primary caregiver shall not be required to submit a new application.

              (o) 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 state governmental agency.

              Section 8.   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 usable marijuana; provided, that the qualifying patient possesses an amount of usable marijuana that does not exceed two ounces and that was obtained in accordance with the provisions of this chapter. 

              (b) 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 usable marijuana; provided, that the primary caregiver possesses an amount of usable marijuana that does not exceed two ounces and that was obtained in accordance with the provisions of this chapter, for the qualifying patient or qualifying minor patient to whom he or she is connected through the department's registration process.

              (c) There shall exist a presumption that a qualifying patient or primary caregiver is engaged in the medical use of usable marijuana in accordance with this act if the qualifying patient or primary caregiver:

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

                   (2) Is in possession of no more than two ounces of usable marijuana. Such presumption may be rebutted by evidence that conduct related to usable marijuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the medical condition.

              (d) Except as provided in this chapter, a qualifying patient, qualifying minor patient and primary caregiver may assert the medical purpose for using usable marijuana as a defense to any prosecution involving usable marijuana, and such defense shall be presumed valid where the evidence shows that:

                   (1) The qualifying patient’s or qualifying minor patient’s physician has stated that in the physician’s professional opinion, after having completed a full physical examination and a full assessment of the qualifying patient’s or qualifying minor patient’s medical history and current medical condition, the qualifying patient or qualifying minor patient has a debilitating medical condition for which recognized drugs or treatments, including pill formulations of cannabinoid substances and THC listed as Schedule III drugs, are not or would not be effective and  the potential benefits of the medical use of usable marijuana would likely outweigh the health risks for the qualifying patient or qualifying minor patient; and

                   (2) The qualifying patient or qualifying minor patient, or their primary caregiver, if any, were collectively in possession of a quantity of usable marijuana that was not more than what is reasonably necessary to ensure the uninterrupted availability of usable marijuana for the purpose of alleviating the person's medical condition or symptoms associated with the medical condition.

              (e) Any interest in or right to property that was possessed, owned, or used in connection with a person's possession or use of usable marijuana for medical purposes shall not be forfeited if the qualifying patient, qualifying minor patient, or their primary caregiver demonstrates the qualifying patient’s, qualifying minor patient’s medical purpose for using usable marijuana pursuant to this section.

              (f) 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.

              (g) A primary caregiver may not receive reimbursement for costs associated with assisting a registered qualifying patient's medical use of usable marijuana, except in the case where a primary caregiver is employed by the hospice provider or nursing facility and acting in the course of said employment.

              (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 usable marijuana as permitted under this chapter.

              (i) A physician, 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) For the purposes of medical care, including organ and tissue transplants, a registered qualifying patient’s or qualifying minor patient’s authorized use of usable marijuana shall be considered the equivalent of the authorized use of any other medication used at the direction of a physician, and shall not constitute the use of an illicit substance.

              (k) Nothing in this chapter shall be construed to prevent enforcement of federal law by agents of the United States Government, or to offer protection to any person or organization against any penalties under federal law.

              Section 9. Additional debilitating medical conditions

              (a) The department shall promulgate regulations governing the manner in which it shall consider petitions from the public to add debilitating medical conditions to those set forth in Chapter 94G Section 2(c). 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.

              (b) In considering petitions for the addition of a new medical condition to the list set forth in section 2, the department shall consider whether the petitioners have established reasonable proof of the following:

                   (1) that the petition refers to a specific medical condition, that the specified medical condition is generally accepted by the medical community as a valid and existing condition, and that defined criteria exist for accurate diagnosis of the condition.

                   (2) that the condition is chronic and debilitating in nature, and associated with severe chronic pain, nausea or other severe symptoms that significantly impair a person’s ability to carry on the activities of daily living.

                   (3) that the use of usable marijuana offers medicinal benefits specific to the condition, and that the proposed benefits noted by the petitioner outweigh the health risks, potential for abuse, and other potential negative side effects to the patient or the general population.

                   (4) that no other generally accepted treatment exists to alleviate the suffering caused by the specified medical condition; or that any and all alternatives which may exist are not available to a substantial portion of the population due to allergy, resistance, intolerance, or other negative responses to treatment, or due to exceptionally restrictive costs or limitations on the supply of the treatment. 

                   (5) that the assertions of the petitioners as regarding subsections 1 through 4 above are supported by a preponderance of the independent scientific research available regarding the specified medical condition.

                   (6) that a reasonable assessment has been made and presented regarding the prevalence of the specified medical condition amongst the population of the Commonwealth.

              (c) The department may deny a petition for the addition of a new medical condition if the petitioners have failed to establish reasonable proof of one or more of the aforementioned subsections, or for any other reason deemed appropriate by the department and established by the regulations promulgated pursuant to this chapter.

              Section 10.  Qualifying patient and qualifying minor patient privacy protections

              (a) Applications and supporting information submitted by qualifying patients and qualifying minor patients, including information regarding their primary caregivers and practitioners, are confidential and protected under the federal Health Insurance Portability and Accountability Act of 1996.

              (b) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list shall be confidential, exempt from the provisions of the Massachusetts Public Records Law, section 10 of chapter 66 of the General Law, and not subject to disclosure, except to authorized employees of the department as necessary to perform official duties of the department.

              (c) The department shall verify to law enforcement personnel whether a registry identification card is valid solely by confirming the random registry identification number.

              (d) 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.

              Section 11.  Reporting

              (a) On or before January 1 of each odd numbered year, the department shall report to the Joint Committee on Public Health on the use of usable marijuana for symptom relief. The report shall provide:

                   (1) The number of applications for registry identification cards, the number of qualifying patients, qualifying minor patients,  and primary caregivers approved, the nature of the debilitating medical conditions of the qualifying patients and qualifying minor patients, the number of registry identification cards revoked, the number of petitions submitted in accordance with section 9 of this chapter, the number of physicians providing written certification for qualifying patients and qualifying minor patients, and the number of petitions received for additional debilitating medical conditions and the disposition of said positions.

                   (2) A reporting of revenue resulting from permitting the use of usable marijuana for symptom relief, including any costs to law enforcement agencies and costs of any litigation;

                   (3) Statistics regarding the number of marijuana-related prosecutions against registered qualifying patients, qualifying minor patients, and caregivers;

                   (4) Statistics regarding the number of prosecutions against physicians for violations of this chapter; and

                   (5) 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.

              (b) For the purposes of this section, state and local law enforcement agencies shall provide the department a report every six (6) months detailing the number and type of prosecutions against qualifying patients, qualifying minor patients, primary caregivers and physicians for violations related to this chapter.

              (c) The board of registration in medicine shall annually report to the department the number of complaints against physicians received by such board in relation to this chapter.

              Section 12.  Legislative Review

              (a) The Joint Committee on Public Health shall annually hold a hearing to review the following:

                   (1) Patients' access to medical marijuana;

                   (2) Physician participation in the Medical Marijuana Program;

                   (3) The definition of qualifying debilitating medical conditions; and

                   (4) Research studies regarding health effects of medical marijuana for patients.

              (b) On or before January of every even-numbered year, the Joint Committee on Public Health shall report to the general court and the department on its findings.

              Section 13. 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 or consumption of usable, or any, marijuana:

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

                        (ii) On any school grounds, or any public or private school, dormitory, college or university property;

                        (iii) In any correctional facility;

                        (iv) at any public beach, park, recreation center or youth center or any other public place;

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

                        (vi) in the presence of a person under the age of eighteen.

                   (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) Nothing in this chapter shall be construed to limit a municipality’s authority to regulate, license or zone a licensed cultivator or dispensary, or limit a municipality’s authority to inspect for compliance with and enforce applicable codes and ordinances.

              (d) 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 non-medical use of marijuana.

              Section 14. Enforcement.

              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.

              Section 15. 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.

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