HB 238-FN – AS INTRODUCED
2005 SESSION
10/09
HOUSE BILL 238-FN
AN ACT relative to the use of marijuana for medicinal purposes.
SPONSORS: Rep. T. Robertson, Ches 3; Rep. Weed, Ches 3
COMMITTEE: Health, Human Services and Elderly Affairs
This bill establishes procedures for the use of medical marijuana under a physician’s supervision.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05-0473
10/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to the use of marijuana for medicinal purposes.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Findings. The general court finds that:
I. Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences’ Institute of Medicine in March 1999.
II. The general court admits that it would prefer for the federal government to permit marijuana to be prescribed by physicians and to be dispensed at pharmacies. However, the general court finds that the federal government has shown no indication that it will change federal policy with regard to medical marijuana, as evidenced by the federal government’s reluctance to allow even FDA-approved clinical trials to move forward.
III. According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, more than 99 out of every 100 marijuana arrests are made under state law, rather than under federal law. Consequently, the general court finds that changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana.
IV. Although federal law expressly prohibits the use of marijuana, the general court recognizes that the laws of Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington permit the medical use and cultivation of marijuana. The general court intends to join in this effort for the health and welfare of its citizens. However, the general court does not intend to make marijuana legally available for other than medical purposes.
V. The state is not required to enforce federal law or prosecute individuals for engaging in activities prohibited by federal law. Therefore, compliance with this act does not put the state in violation of federal law.
VI. State law should make a distinction between the medical and non-medical use of marijuana. Hence, the purpose of this act is to ensure that physicians are not penalized for discussing marijuana as a treatment option with their patients, and seriously ill people who engage in the medical use of marijuana upon their physicians’ advice are not arrested and incarcerated for using marijuana for medical purposes.
2 New Chapter; Use of Medical Marijuana. Amend RSA by inserting after chapter 126-Q the following new chapter:
CHAPTER 126-R
126-R:1 Definitions. In this chapter:
I. “Adequate supply” means an amount of marijuana collectively possessed between the qualifying patient and the qualifying patient’s primary caregivers that is not more than is reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of alleviating the symptoms or effects of a qualifying patient’s debilitating medical condition; provided that an “adequate supply” shall not exceed 3 mature marijuana plants, 4 immature marijuana plants, and one ounce of usable marijuana per each mature plant. “Usable marijuana” means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, that are appropriate for the medical use of marijuana, and does not include the seeds, stalks, and roots of the plant.
II. “Commissioner” means the commissioner of the department of health and human services.
III. “Debilitating medical condition” means:
(a) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;
(b) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe pain; severe nausea; seizures, including those characteristic of epilepsy; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn’s disease; or
(c) Any other medical condition or its treatment approved by the department, as provided for in RSA 126-R:2.
IV. “Department” means the department of health and human services.
V. “Medical use” means the acquisition, possession, cultivation, use, transfer, or transportation of marijuana or paraphernalia relating to the administration of marijuana to alleviate the symptoms or effects of a qualifying patient’s debilitating medical condition. For the purposes of “medical use,” the term “transfer” is limited to the transfer of marijuana and paraphernalia between primary caregivers and qualifying patients.
VI. “Physician” means a person who is licensed under RSA 329.
VII. “Primary caregiver” means a person who is at least 18 years old and who has agreed to undertake responsibility for managing the well-being of a patient with respect to the medical use of marijuana.
VIII. “Qualifying patient” means a person who has been diagnosed by a physician as having a debilitating medical condition.
IX. “Written certification” means the qualifying patient’s medical records or a statement signed by a physician, stating that in the physician’s professional opinion, after having completed a full assessment of the qualifying patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient.
126-R:2 Rulemaking; Debilitating Medical Conditions. Not later than 90 days after the effective date of this chapter, the department shall adopt rules, under RSA 541-A, relative to governing the manner in which it will consider petitions submitted by physicians or patients to add debilitating medical conditions to those included in this chapter. In considering such petitions, the department shall include public notice of and an opportunity to comment in a public hearing upon such petitions. The department shall, after hearing, approve or deny such petitions within 180 days of submission. The approval or denial of such a petition shall be considered a final agency action, subject to judicial review pursuant to RSA 541.
126-R:3 Exemption from Criminal and Civil Penalties for the Medical Use of Marijuana.
I. A qualifying patient who has in his or her possession written certification shall not be subject to arrest, prosecution, or penalty in any manner for the medical use of marijuana, provided the quantity of marijuana does not exceed an adequate supply.
II. Paragraph I shall not apply to a qualifying patient under the age of 18 years, unless:
(a) The qualifying patient’s physician has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and to a parent, guardian, or person having legal custody of the qualifying patient; and
(b) A parent, guardian, or person having legal custody consents in writing to:
(1) Allow the qualifying patient’s medical use of marijuana;
(2) Serve as the qualifying patient’s primary caregiver; and
(3) Control the acquisition of the marijuana, the dosage, and the frequency of the medical use of marijuana by the qualifying patient.
III. When the acquisition, possession, cultivation, transportation, or administration of marijuana by a qualifying patient is not practicable, the legal protections established by this chapter for a qualifying patient shall extend to the qualifying patient’s primary caregivers, provided that the primary caregivers’ actions are necessary for the qualifying patient’s medical use of marijuana.
IV. A physician shall not be subject to arrest or prosecution, penalized in any manner, or denied any right or privilege for providing written certification for the medical use of marijuana to qualifying patients.
V. Any property interest that is possessed, owned, or used in connection with the medical use of marijuana, or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials, provided that law enforcement agencies seizing live plants as evidence shall not be responsible for the care and maintenance of marijuana plants. Any such property interest shall not be forfeited under any provision of state or local law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to a criminal offense. Marijuana, paraphernalia, or other property seized from a qualifying patient or primary caregiver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination by a court or prosecutor that the qualifying patient or primary caregiver is entitled to the protections of this chapter, as may be evidenced by a decision not to prosecute, the dismissal of charges, or an acquittal.
VI. No person shall be subject to arrest or prosecution for “constructive possession,” “conspiracy,” or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this chapter.
126-R:4 Prohibitions, Restrictions, and Limitations Regarding the Medical Use of Marijuana.
I. The authorization for the medical use of marijuana in this chapter shall not apply to:
(a) The medical use of marijuana that endangers the health or well-being of another person, such as driving or operating heavy machinery while under the influence of marijuana.
(b) The smoking of marijuana:
(1) In a school bus, public bus, or other public vehicle.
(2) In the workplace of one’s employment.
(3) On any school grounds.
(4) In any correctional facility.
(5) At any public park, public beach, public recreation center, or youth center.
(c) The use of marijuana by a qualifying patient, primary caregiver, or any other person for purposes other than medical use permitted by this chapter.
II. Insurance coverage shall not be required for the medical use of marijuana.
III. Notwithstanding any law to the contrary, 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 a class B misdemeanor. This penalty shall be in addition to any other penalties that may apply for the non-medical use of marijuana.
126-R:5 Establishing a Defense in Court for Patients and Primary Caregivers. A patient or primary caregiver may assert the medical use of marijuana as a defense to any prosecution involving marijuana, and such defense shall be presumed valid where the evidence shows that:
I. The patient’s medical records indicate, or a physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient.
II. The patient and the patient’s primary caregivers were collectively in possession of a quantity of marijuana that was medically justified to address the patient’s debilitating medical condition.
126-R:6 Severability. If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.
3 Repeal. RSA 318-B:10, VI, relative to a physician prescribing cannabis-type drugs for certain medical purposes, is repealed.
4 Effective Date. This act shall take effect January 1, 2006.
LBAO
05-0473
1/13/05
HB 238-FN - FISCAL NOTE
AN ACT relative to the use of marijuana for medicinal purposes.
FISCAL IMPACT:
The Department of Health and Human Services states this bill will increase state expenditures and revenue by an indeterminable amount in FY 2006 and each year thereafter. There will be no fiscal impact on county and local revenue or expenditures.
METHODOLOGY:
The Department of Health and Human Services indicated this bill would require the Department to adopt rules concerning debilitating medical conditions and review petitions to consider additional medical conditions. The Department assumes the review process would require medical expertise and additional staff time to manage the workload that would include holding public hearings for the petitions. The Department assumed this bill could result in new Medicaid services or drugs which would impact both expenditures and revenue. The Department cannot estimate the number of petitions that may be filled, the kind of medical expertise required to review the petitions, or the staff time that may be required.
The New Hampshire Board of Medicine states this bill will not result in any additional costs for the Board.