Revision: March 21, 2013, midnight
HB 573-FN – AS AMENDED BY THE HOUSE
20Mar2013… 0797h
2013 SESSION
04/01
HOUSE BILL 573-FN
AN ACT relative to the use of cannabis for therapeutic purposes.
SPONSORS: Rep. Schlachman, Rock 18; Rep. Vaillancourt, Hills 15; Rep. Robertson, Ches 6; Rep. Wright, Carr 8; Rep. Renzullo, Hills 37; Rep. LeBrun, Hills 32; Rep. DeSimone, Rock 14; Rep. Kidder, Merr 5; Rep. Gale, Hills 28; Rep. Lovejoy, Rock 36; Sen. Woodburn, Dist 1; Sen. Reagan, Dist 17; Sen. Fuller Clark, Dist 21; Sen. Cataldo, Dist 6
COMMITTEE: Health, Human Services and Elderly Affairs
This bill authorizes the use of therapeutic cannabis in New Hampshire.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
20Mar2013… 0797h
13-0279
04/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Thirteen
AN ACT relative to the use of cannabis for therapeutic purposes.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Use of Cannabis for Therapeutic Purposes. Amend RSA by inserting after chapter 126-V the following new chapter:
CHAPTER 126-W
USE OF CANNABIS FOR THERAPEUTIC PURPOSES
126-W:1 Definitions. In this chapter:
I. “Alternative treatment center” means a not-for-profit entity registered under RSA 126-W:7 that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, sells, supplies, and dispenses cannabis, and related supplies and educational materials, to qualifying patients.
II. “Alternative treatment center agent” means a principal officer, board member, employee, manager, or volunteer of an alternative treatment center who is 21 years of age or older and has not been convicted of a felony or any drug-related offense.
III. “Cannabis” means all parts of any plant of the Cannabis genus of plants, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, salt, derivative, mixture, or preparation of such plant, its seeds, or resin. Such term shall not include the mature stalks of such plants, fiber produced from such stalks, oil, or cake made from the seeds of such plants, any other compound, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seeds of such plants which are incapable of germination.
IV. “Cultivation location” means a locked and enclosed site, under the control of the qualifying patient or designated caregiver who has reported the location of the site to the department, where cannabis is cultivated in accordance with the provisions of this chapter. A cultivation location may be a closet, a room, a greenhouse, a building, or another enclosed area that is secured with one or more locks or other security devices.
V. “Department” means the department of health and human services.
VI. “Designated caregiver” means an individual:
(a) Who is at least 21 years of age;
(b) Who has agreed to assist with a qualifying patient’s therapeutic use of cannabis;
(c) Who has never been convicted of a felony or any drug-related offense; and
(d) Who possesses a valid registry identification card issued pursuant to RSA 126-W:4.
VII.(a) “Provider” means a physician licensed to prescribe drugs to humans under RSA 329 and who possesses certification from the United States Drug Enforcement Administration to prescribe controlled substances. “Provider” shall also mean an advanced practice registered nurse licensed pursuant to RSA 326-B:18.
(b) If the qualifying patient’s qualifying medical condition is post-traumatic stress disorder, the provider shall also be a licensed psychiatrist.
(c) For a visiting qualifying patient, “provider” means an individual licensed to prescribe drugs to humans in the state of the patient’s residence and who possesses certification from the United States Drug Enforcement Administration to prescribe controlled substances.
VIII. “Provider-patient relationship” means at least a 3-month medical relationship between a licensed provider and a patient that includes an in-person exam, a history, a diagnosis, a treatment plan appropriate for the licensee’s medical specialty, and documentation of all prescription drugs including name and dosage.
IX(a). “Qualifying medical condition” means the presence of:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C currently receiving antiviral treatment, amyotrophic lateral sclerosis, muscular dystrophy, Crohn’s disease, agitation of Alzheimer’s disease, multiple sclerosis, chronic pancreatitis, or post-traumatic stress disorder; and
(2) A severely debilitating or terminal medical condition or its treatment that produces at least one of the following: cachexia, chemotherapy-induced anorexia, wasting syndrome, severe pain that has not responded to previously prescribed medication or surgical measures for more than 3 months, or for which other treatment options produced serious side effects, constant or severe nausea, moderate to severe vomiting, seizures, or severe, persistent muscle spasms.
(b) The commissioner may include a medical condition which is not listed in subparagraph (a) and which the commissioner determines, on a case by case basis, is severely debilitating or terminal, based upon the written request of a provider who furnishes written certification to the commissioner.
X. “Qualifying patient” means a resident of New Hampshire who has been diagnosed by a provider as having a qualifying medical condition and who possesses a valid registry identification card issued pursuant to RSA 126-W:4.
XI. “Registry identification card” means a document issued by the department pursuant to RSA 126-W:4 that identifies an individual as a qualifying patient or a designated caregiver.
XII. “Seedling” means a cannabis plant that has no flowers and is less than 12 inches in height and less than 12 inches in diameter.
XIII. “Therapeutic use” means the acquisition, possession, cultivation, preparation, use, delivery, transfer, or transportation of cannabis or paraphernalia relating to the administration of cannabis to treat or alleviate a qualifying patient’s qualifying medical condition or symptoms or results of treatment associated with the qualifying patient’s qualifying medical condition. It does not include:
(a) The use of cannabis by a designated caregiver who is not a qualifying patient; or
(b) Cultivation or purchase by a visiting qualifying patient; or
(c) Cultivation by a designated caregiver or qualifying patient who is not designated as being allowed to cultivate.
XIV. “Unusable cannabis” means any cannabis, other than usable cannabis, including the seeds, stalks, and roots of the plant.
XV. “Usable cannabis” means the dried leaves and flowers of the cannabis plant and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant and does not include the weight of any non-cannabis ingredients combined with cannabis and prepared for consumption as food or drink.
XVI. “Visiting qualifying patient” means a patient with a qualifying medical condition who is not a resident of New Hampshire or who has been a resident of New Hampshire for fewer than 30 days.
XVII. “Written certification” means documentation of a qualifying medical condition by a provider pursuant to rules adopted by the department pursuant to RSA 541-A for the purpose of issuing registry identification cards, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a provider-patient relationship of at least 3 months in duration. The 3-month requirement for the provider-patient relationship required in this paragraph shall not apply if the provider issuing the written certification certifies that the onset of the patient’s qualifying medical condition occurred within the past 3 months; and the certifying provider is primarily responsible for the patient’s care related to his or her qualifying medical condition. The date of issuance and the patient’s qualifying medical condition shall be specified on the written certification.
126-W:2 Therapeutic Use of Cannabis Protections.
I. A qualifying patient shall not be subject to arrest by state or local law enforcement, prosecution or penalty under state or municipal law, or be denied any right or privilege for the therapeutic use of cannabis in accordance with this chapter, if the qualifying patient possesses, cultivates, or possesses and cultivates, an amount of cannabis that does not exceed the following:
(a) If the qualifying patient does not have a designated caregiver, for the possession and cultivation of cannabis that occurs at the cultivation location reported to the department, or while transporting cannabis and cannabis plants and seedlings to a new cultivation location that has been reported to the department within the prior 21 days:
(1) Six ounces of usable cannabis;
(2) Any amount of unusable cannabis; and
(3) Three mature cannabis plants and 12 seedlings, with a total canopy of no more than 50 square feet.
(b) If the qualifying patient is not at a cultivation location reported to the department:
(1) Two ounces of usable cannabis; and
(2) Any amount of unusable cannabis.
II. A designated caregiver shall not be subject to arrest by state or local law enforcement, prosecution or penalty under state or municipal law, or denied any right or privilege for the therapeutic use of cannabis in accordance with this chapter on behalf of a qualifying patient if the designated caregiver possesses or cultivates, or both, an amount of cannabis that does not exceed the following:
(a) If at the cultivation location reported to the department, or while transporting cannabis and cannabis plants and seedlings to a new cultivation location that has been reported to the department within the prior 21 days:
(1) Six ounces of usable cannabis; and
(2) Any amount of unusable cannabis; and
(3) Three mature cannabis plants and 12 seedlings, with a total canopy of no more than 50 square feet.
(b) If not at a cultivation location reported to the department:
(1) Two ounces of usable cannabis; and
(2) Any amount of unusable cannabis.
III. A designated caregiver may receive compensation for costs, not including labor, associated with assisting a qualifying patient who has designated the designated caregiver to assist him or her with the therapeutic use of cannabis. Such compensation shall not constitute the sale of controlled substances.
IV.(a) A qualifying patient is presumed to be lawfully engaged in the therapeutic use of cannabis in accordance with this chapter if the qualifying patient possesses a valid registry identification card and possesses an amount of cannabis that does not exceed the amount allowed under this chapter.
(b) A designated caregiver is presumed to be lawfully engaged in assisting with the medical use of cannabis in accordance with this chapter if the designated caregiver possesses a valid registry identification card and possesses an amount of cannabis that does not exceed the amount allowed under this chapter.
(c) The presumptions made in subparagraphs (a) and (b) may be rebutted by evidence that conduct related to cannabis was not for the purpose of treating or alleviating the qualifying patient’s qualifying medical condition or symptoms or effects of the treatment associated with the qualifying medical condition, in accordance with this chapter.
V. A valid registry identification card, or its equivalent, that is issued under the laws of another state, district, territory, commonwealth, or insular possession of the United States that allows, in the jurisdiction of issuance, a visiting qualifying patient to possess cannabis for therapeutic purposes, shall have the same force and effect as a valid registry identification card issued by the department in this state, provided that:
(a) The visiting qualifying patient shall also produce a statement from his or her provider stating that the visiting qualifying patient has a qualifying medical condition as defined in RSA 126-W:1, X; and
(b) A visiting qualifying patient shall not cultivate or purchase cannabis in New Hampshire or obtain cannabis from alternative treatment centers.
VI. A person otherwise entitled to custody of, or visitation or parenting time with, a minor shall not be denied such a right solely for conduct allowed under this chapter, and there shall be no presumption of neglect or child endangerment.
VII. For the purposes of medical care, including organ transplants, a qualifying patient’s authorized use of cannabis in accordance with this chapter shall be considered the equivalent of the authorized use of any other medication used at the direction of a provider, and shall not constitute the use of an illicit substance.
VIII. A provider shall not be subject to arrest by state or local law enforcement, prosecution or penalty under state or municipal law, or be denied any right or privilege, including but not limited to a civil penalty or disciplinary action by the New Hampshire board of medicine or any other occupational or professional licensing entity, solely for providing written certifications, provided that nothing shall prevent a professional licensing entity from sanctioning a provider for failing to properly evaluate a patient’s medical condition.
IX. An alternative treatment center shall not be subject to prosecution under state or municipal law; search or inspection, except by the department pursuant to RSA 126-W:7, XI; seizure; or penalty in any manner under state or municipal law for acting pursuant to this chapter and department rules to:
(a) Acquire or purchase cannabis seeds, seedlings, plants, or cannabis from other sources;
(b) Possess, cultivate, manufacture, or transport cannabis and seedlings; or
(c) Deliver, transfer, supply, sell, or dispense cannabis and related supplies and educational materials to qualifying patients and visiting qualifying patients who have designated the alternative treatment center to provide for them, to designated caregivers on behalf of the qualifying patients who have designated the alternative treatment center, or to other alternative treatment centers.
X. An alternative treatment center agent shall not be subject to arrest by state or local law enforcement, prosecution or penalty in any manner under state or municipal law, search, or be denied any right or privilege for working for an alternative treatment center pursuant to this chapter and department rules to engage in any of the actions listed in paragraph IX.
XI. Any cannabis, cannabis paraphernalia, licit property, or interest in licit property that is possessed, owned, or used in connection with the therapeutic use of cannabis as allowed under this chapter, or acts incidental to such use, shall not be seized or forfeited if the basis for the seizure or forfeiture is activity related to cannabis that is exempt from state criminal penalties under this chapter.
XII. An individual shall not be subject to arrest by state or local law enforcement, prosecution or penalty under state or municipal law, or be denied any right or privilege, including but not limited to a civil penalty or disciplinary action by a court or occupational or professional licensing entity, simply for being in the presence or vicinity of the therapeutic use of cannabis as allowed under this chapter.
XIII. If a state or local law enforcement agency or agent encounters an alternative treatment center or an individual who the agent or agency knows is an alternative treatment center agent, a designated caregiver, or a qualifying patient, or who credibly asserts he or she is an alternative treatment center agent, a designated caregiver, or a qualifying patient, the law enforcement agency or agent shall not provide any information from any cannabis-related investigation of the individual or entity to any law enforcement agency that does not recognize the protection of this chapter, and any prosecution of the individual or entity for a violation of this chapter shall be conducted pursuant to the laws of this state. This paragraph shall not apply in cases where the state or local law enforcement agency has probable cause to believe the person is distributing cannabis to a person who is not allowed to possess it under this chapter.
XIV. A person who ceases to be a qualifying patient or designated caregiver shall have 10 days after notification by the department to dispose of cannabis in one of the following ways:
(a) If the person was a designated caregiver and the qualifying patient who designated the caregiver is still a qualifying patient, but has designated a new caregiver or will cultivate plants himself or herself, the designated caregiver may transfer cannabis to the new person who will cultivate for the qualifying patient;
(b) The person may notify local law enforcement and request that they dispose of the cannabis; or
(c) The person may dispose of cannabis, after mixing cannabis with other ingredients such as soil to render it unusable.
126-W:3 Prohibitions and Limitations on the Therapeutic Use of Cannabis.
I. A qualifying patient may use cannabis on privately-owned real property only with the permission of the property owner or in the case of leased property with the permission of the tenant in possession of the property, except that a tenant shall not allow a qualifying patient to smoke cannabis on rented property if smoking on the property violates the lease or the lessor’s rental policies that apply to all tenants at the property. However, a tenant may permit a qualifying patient to use cannabis on leased property by ingestion or inhalation through vaporization even if smoking is prohibited by the lease or rental policies. For purposes of this chapter, vaporization shall mean the inhalation of cannabis without the combustion of the cannabis.
II. Nothing in this chapter shall exempt any person from arrest or prosecution for:
(a) Being under the influence of cannabis while:
(1) Operating a motor vehicle, commercial vehicle, boat, or vessel, or any other vehicle propelled or drawn by power other than muscular power; or
(2) In his or her place of employment, without the written permission of the employer; or
(3) Operating heavy machinery or handling a dangerous instrumentality.
(b) The use or possession of cannabis by a qualifying patient or designated caregiver for purposes other than for therapeutic use as permitted by this chapter;
(c) The smoking or vaporization of cannabis in any public place, including:
(1) A school bus, public bus, or other public vehicle; or
(2) A place of employment, without the written permission of the employer; or
(3) The grounds of any preschool, elementary, or secondary school; or
(4) Any correctional facility; or
(5) Any public park, public beach, public recreation center, public field, or youth center; or
(6) Any law enforcement facility.
III. Nothing in this chapter shall be construed to require:
(a) Any health insurance provider, health care plan, or medical assistance program to be liable for any claim for reimbursement for the therapeutic use of cannabis; or
(b) Any individual or entity in lawful possession of property to allow a guest, client, customer, or other visitor to use cannabis on or in that property; or
(c) Any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment or on the property or premises of any jail, correctional facility, or other type of penal institution where prisoners reside or persons under arrest are detained. This chapter shall in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.
IV. Any person who makes a fraudulent representation to a law enforcement official of any fact or circumstance relating to the therapeutic use of cannabis to avoid arrest or prosecution shall be guilty of a violation and shall be fined $500, which shall be in addition to any other penalties that may apply for making a false statement or for the use of cannabis other than use undertaken pursuant to this chapter.
V. A qualifying patient or designated caregiver who is found to be in possession of cannabis outside of his or her home and is not in possession of his or her registry identification card may be subject to a $100 fine.
VI. Any qualifying patient or designated caregiver who sells cannabis to another person who is not a qualifying patient or designated caregiver under this chapter shall be subject to the penalties specified in RSA 318-B:26, IX-a, shall have his or her registry identification card revoked, and shall be subject to other penalties as provided in RSA 318-B:26.
VII. The department may revoke the registry identification card of a qualifying patient or designated caregiver for violation of rules adopted by the department or for violation of any other provision of this chapter, and the qualifying patient or designated caregiver shall be subject to any other penalties established in law for the violation.
126-W:4 Departmental Administration; Registry Identification Cards.
I. Except as provided in paragraph V, the department shall issue a registry identification card to a person applying as a qualifying patient who submits all of the following information:
(a) Written certification as defined in RSA 126-W:1.
(b) An application or a renewal application accompanied by the application or renewal fee.
(c) A recent passport-sized photograph of the applicant’s face.
(d) Name, residential and mailing address, and date of birth of the applicant, except that if the applicant is homeless, no residential address is required.
(e) Name, address, and telephone number of the applicant’s provider.
(f) Name, address, and date of birth of the applicant’s designated caregiver, if any. A qualifying patient shall have only one designated caregiver.
(g) Name of the alternative treatment center that the qualifying patient designates. A qualifying patient may designate no more than one alternative treatment center at any time.
(h) Street address of the cultivation location, if any, if the qualifying patient does not have a designated caregiver.
(i) A statement signed by the applicant, pledging not to divert cannabis to anyone who is not allowed to possess cannabis pursuant to this chapter and acknowledging that his or her diversion of cannabis is punishable as a class B felony and revocation of his or her registry identification card, in addition to other penalties for the illegal sale of cannabis.
II.(a) Except as provided in paragraph V, the department shall issue a registry identification card to a person applying as a designated caregiver who submits all of the following information:
(1) An application or a renewal application.
(2) A recent passport-sized photograph of the applicant’s face.
(3) Name, residential and mailing address, and date of birth of the applicant.
(4) Name, residential and mailing address, and date of birth of the qualifying patient for whom the applicant will act as designated caregiver, except that if the qualifying patient is homeless, no residential address is required. A designated caregiver shall act on behalf of only one qualifying patient.
(5) Street address of the cultivation location, except that the designated caregiver may not include a cultivation location if the designated caregiver’s qualifying patient has designated an alternative treatment center.
(6) A signed statement from the applicant agreeing to act as the designated caregiver for the qualifying patient named in the application and pledging not to divert cannabis to anyone who is not allowed to possess cannabis pursuant to this chapter and acknowledging that the diversion of cannabis is punishable as a class B felony and revocation of one’s registry identification card, in addition to other penalties for the illegal sale of cannabis.
(7) A person who is applying to be a designated caregiver shall submit the results of a state and federal criminal records check obtained through the department of safety. The department of safety may exchange necessary data including fingerprint data with the Federal Bureau of Investigation without disclosing that the records check is related to the provisions of this chapter and acts permitted by it.
(b) In the case of a designated caregiver applying for a renewal, the applicant shall submit a sworn statement that he or she has not been convicted of a felony or other drug-related offense.
III. The department shall verify the information contained in an application or renewal submitted pursuant to this section. The department shall approve or deny an application or renewal for a qualifying patient within 15 days of receipt of the application. The department shall approve or deny an application or renewal to serve as a designated caregiver within 45 days of receipt of the application. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or if the applicant previously had a registry identification card revoked for violating the provisions of this chapter or rules adopted by the department, or if the department determines that the information provided was falsified or did not meet the requirements of this chapter or rules adopted by the department. The department shall notify an applicant of the denial of an application. An applicant who is aggrieved by a department decision may request an administrative hearing at the department.
IV. The department shall issue a registry identification card to a person applying as a qualifying patient or designated caregiver within 5 days of approving an application or renewal. Each registry identification card shall expire one year after the date of issuance, unless the provider states in the written certification that the certification should expire at an earlier specified date, then the registry identification card shall expire on that date. Registry identification cards shall contain all of the following:
(a) Name, mailing address, and date of birth of the qualifying patient or designated caregiver.
(b) The date of issuance and expiration date of the registry identification card.
(c) A random 10-digit identification number, containing at least 4 numbers and at least 4 letters, that is unique to the qualifying patient or the designated caregiver.
(d) A designation that the person is either a “qualifying patient” or a “designated caregiver.” If the person is a designated caregiver, the identification card shall include the random 10-digit identification number of the qualifying patient for whom he or she is providing care.
(e) The registry identification number corresponding with the alternative treatment center the qualifying patient designated, if any.
(f) A passport-sized photograph of the qualifying patient’s or designated caregiver’s face.
(g) A statement that the qualifying patient or designated caregiver is permitted under state law to possess cannabis pursuant to this chapter for the medical use of the qualifying patient.
(h) A statement noting whether or not the cardholder is exempt from state penalties for cultivating cannabis. The statement shall be determined as follows:
(1) A qualifying patient is exempt from state penalties for cultivating cannabis in accordance with this chapter if he or she does not have a designated caregiver. If a qualifying patient has selected a designated caregiver, he or she is not exempt from state penalties for cultivating cannabis.
(2) A designated caregiver is exempt from state penalties for cultivating cannabis in accordance with this chapter if the designated caregiver’s qualifying patient has not also designated an alternative treatment center. If the designated caregiver’s qualifying patient has also designated an alternative treatment center, the designated caregiver is not exempt from state penalties for cultivating cannabis.
V. The department shall not issue a registry identification card to an applicant under 18 years of age who is applying as a qualifying patient unless:
(a) A custodial parent or legal guardian responsible for health care decisions for the qualifying patient submits a written certification from 2 providers, one of whom shall be a pediatrician.
(b) The applicant’s provider has explained the potential risks and benefits of the therapeutic use of cannabis to the custodial parent or legal guardian with responsibility for health care decisions for the applicant; and
(c) The custodial parent or legal guardian with responsibility for health care decisions for the applicant consents in writing to:
(1) Allow the applicant’s therapeutic use of cannabis; and
(2) Serve as the applicant’s designated caregiver and control the acquisition of the cannabis and the frequency of the therapeutic use of cannabis by the applicant; and
(3) The custodial parent or legal guardian completes an application in accordance with the requirements of paragraph I on behalf of the applicant.
VI. The department shall provide each approved qualifying patient and caregiver a statement with the registry identification card explaining federal law on the possession of cannabis and that possession of a state registry identification card does not protect a person from federal criminal penalties.
VII. The department shall track the number of qualifying patients who have designated each alternative treatment center and issue a monthly written statement to the alternative treatment center identifying the number of qualifying patients who have designated that alternative treatment center along with the registry identification numbers of each patient and each patient’s designated caregiver.
VIII. In addition to the monthly reports, the department shall also provide written notice to an alternative treatment center which identifies the names and registration identification numbers of a qualifying patient and his or her designated caregiver whenever any of the following events occur:
(a) A qualifying patient designates the alternative treatment center to serve his or her needs under this chapter;
(b) An existing qualifying patient revokes the designation of the alternative treatment center; or
(c) A qualifying patient who has designated the alternative treatment center loses his or her status as a qualifying patient under this chapter.
IX.(a) A qualifying patient shall notify the department before changing his or her designated caregiver or alternative treatment center.
(b) A qualifying patient and designated caregiver shall notify the department before changing his or her cultivation location.
(c) A qualifying patient shall notify the department of any change in his or her name or address within 10 days of such change. If the qualifying patient’s certifying provider notifies the department in writing that the qualifying patient no longer suffers from a qualifying medical condition or should discontinue using cannabis for another compelling reason, the registry identification card shall become void upon notification by the department to the qualifying patient.
(d) When a qualifying patient or a designated caregiver notifies the department of any change to a name, address, or alternative treatment center, the department shall issue the qualifying patient or designated caregiver a new registry identification card with a new random 10-digit identification number within 20 days of receiving the updated information.
(e) If a qualifying patient notifies the department of a change in his or her designated caregiver and the prospective designated caregiver meets the requirements of this chapter, the department shall issue the designated caregiver a registry identification card with a new random 10-digit identification number within 50 days of receiving the designated caregiver’s application.
(f) A qualifying patient or designated caregiver who fails to notify the department of any changes to his or her name, address, designated caregiver, or cultivation location shall be guilty of a violation and may be subject to a fine not to exceed $150 under rules adopted by the department.
(g) If a qualifying patient or designated caregiver loses his or her registry identification card, he or she shall notify the department within 10 days of losing the card. Within 5 days after such notification, the department shall issue a new registry identification card with a new random 10-digit identification number. The fee for new registry cards shall be established in rules set by the department pursuant to RSA 541-A.
X. Mere 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 individual or property of the individual possessing or applying for the registry identification card. The possession of, or application for, a registry identification card shall not preclude the existence of probable cause if probable cause exists on other grounds.
XI.(a) The department shall create and maintain a confidential registry of each individual who has applied for and received a registry identification card as a qualifying patient or a designated caregiver in accordance with the provisions of this chapter. Each entry in the registry shall contain the qualifying patient’s or designated caregiver’s name, mailing address, date of birth, date of registry identification card issuance, date of registry identification card expiration, random 10-digit identification number, street address at which the cannabis plants will be cultivated or possessed, effective date of any change of cultivation location, and registry identification number of the qualifying patient’s designated alternative treatment center, if any. The confidential registry and the information contained in it shall be exempt from disclosure under RSA 91-A.
(b)(1) Except as specifically provided in this chapter, no person shall have access to any information about qualifying patients or designated caregivers in the department’s confidential registry, or any information otherwise maintained by the department about providers and alternative treatment centers, except for authorized employees of the department in the course of their official duties and local and state law enforcement personnel who have detained or arrested an individual who claims to be engaged in the therapeutic use of cannabis.
(2) If a local or state law enforcement officer submits a sworn affidavit to the department affirming that he or she has probable cause to believe cannabis is possessed or cultivated at a specific address, an authorized employee for the department may disclose whether the location is associated with a qualifying patient, designated caregiver, cultivation location, or alternative treatment center location.
(3) If a local or state law enforcement officer submits a sworn affidavit to the department affirming that he or she has probable cause to believe a specific individual possesses or cultivates cannabis, an authorized employee for the department may disclose whether the person is a qualifying patient or a designated caregiver, provided that the law enforcement officer provides the person’s name and address or name and date of birth.
(4) Counsel for the department may notify law enforcement officials about falsified or fraudulent information submitted to the department where counsel has made a legal determination that there is probable cause to believe the information is false or falsified.
XII. Within 5 days of learning of the death of a qualifying patient, a surviving family member, caretaker, executor, or the patient’s designated caregiver shall notify the department that the qualifying patient has died. Within 5 days of learning of the death of a qualifying patient, the surviving family member, caretaker, executor, or the patient’s designated caregiver shall either request that the local law enforcement agency remove any remaining cannabis or shall dispose of the cannabis in a manner that is specified in 126-W:2, XIV.
126-W:5 Affirmative Defense.
I. Except as provided in RSA 126-W:3, it shall be an affirmative defense to any prosecution for an offense involving cannabis or cannabis paraphernalia intended for therapeutic use if:
(a) The defendant is a qualifying patient in possession of a valid registry identification card and at the time of arrest or prosecution was in possession of a quantity of cannabis that was not more than allowed under this chapter, and the qualifying patient was engaged in the therapeutic use of cannabis in accordance with the provisions of this chapter; or
(b)(1) The defendant is a designated caregiver in possession of a valid registry identification card and at the time of arrest or prosecution was in possession of a quantity of cannabis that was not more than allowed under this chapter; and
(2) The designated caregiver was engaged in the therapeutic use of cannabis on behalf of a qualifying patient in accordance with the provisions of this chapter.
If a defendant proves the elements of the affirmative defense listed in subparagraph (I)(a) or (b), the charges shall be dismissed with prejudice.
II. A person who is arrested or cited for possession, cultivation, or transportation of cannabis, or possession of cannabis paraphernalia, may raise as an affirmative defense that he or she is person with a qualifying medical condition who is not yet in possession of a valid registry identification card if:
(a) Prior to the arrest, the person submitted to the department a valid application to become a qualifying patient, complete with a written certification, but the person had not yet received a registry identification card from the department; and
(1) The person does not possess more than 2 ounces of usable cannabis and any amount of unusable cannabis, if the cannabis is not on the person’s property; or
(2) If the cannabis is on the person’s property, the person does not possess more than 6 ounces of usable cannabis and any amount of unusable cannabis and does not possess or is not cultivating more than 3 mature cannabis plants with a total canopy of no more than 50 square feet, and 12 seedlings, which shall be in a locked and enclosed location on the person’s property.
(b) The affirmative defense under this section shall not be available to a person who has violated any of the provisions of RSA 126-W:3, I-IV.
(c) If a defendant proves the elements of the affirmative defense listed in this paragraph, the defendant shall be acquitted of any charge to which the defendant proved the affirmative defense.
III. A person who is arrested or cited for possession, cultivation, or transportation of cannabis, or possession of cannabis paraphernalia, prior to the date on which the department begins accepting registry identification card applications may raise as an affirmative defense that he or she is a person with a qualifying medical condition who is not yet in possession of a valid registry identification card if:
(a) The person produces a written statement signed by a provider stating that in the provider’s professional opinion, after having completed a full assessment made in the course of a provider-patient relationship of at least 3 months duration, the person has a qualifying medical condition. The 3-month requirement for the provider-patient relationship required in this paragraph shall not apply if the provider issuing the written certification certifies that the onset of the patient’s qualifying medical condition occurred within the past 3 months and the certifying provider is primarily responsible for the patient’s care related to his or her qualifying medical condition; and
(1) The person does not possess more than 2 ounces of usable cannabis and any amount of unusable cannabis, if the cannabis is not on the person’s property; and
(2) If the cannabis is on the person’s property, the person does not possess more than 6 ounces of usable cannabis and any amount of unusable cannabis and does not possess or is not cultivating more than 3 mature cannabis plants with a total canopy of no more than 50 square feet, and 12 seedlings which shall be in a locked and enclosed location.
(b) The affirmative defense under this section shall not be available to a person who has violated any of the provisions of RSA 126-W:3, I-IV.
(c) If a defendant proves the elements of the affirmative defense listed in this paragraph, the defendant shall be acquitted of any charge to which the defendant proved the affirmative defense.
126-W:6 Departmental Rules.
I. Not later than 6 months days after the effective date of this chapter, the department shall adopt rules, pursuant to RSA 541-A, governing:
(a) The form and content of applications for issuance and renewals of registry identification cards for qualifying patients and designated caregivers.
(b) The form and content of providers’ written certifications.
(c) Procedures for considering, approving, and denying applications for issuance and renewals of registry identification cards, and for revoking registry identification cards.
(d) Fees, pursuant to RSA 126-W:4, I(b) and paragraph II of this section for applications for registry identification cards, and pursuant to RSA 126-W:4, IX(g) for re-issuance of replacement registry identification cards.
(e) Fines pursuant to RSA 126-W:4, IX(f) for failure of the qualifying patient or designated caregiver to notify the department of any changes to his or her name, address, designated caregiver in the case of a qualifying patient, or cultivation location.
II. The department’s rules shall establish application and renewal fees for registry identification cards in accordance with the following:
(a) The fee structure by the department for alternative treatment centers and registry identification cards shall generate revenues sufficient to offset all state expenses of implementing and administering this chapter; however,
(b) The department may accept donations from private sources without the approval of the governor and council in order to reduce the application and renewal fees for qualifying patients.
III.(a) Not later than one year after the effective date of this section, the department shall adopt rules, pursuant to RSA 541-A, governing alternative treatment centers and the manner in which it shall consider applications for registration certificates for alternative treatment centers, including, but not limited to:
(1) The form and content of registration and renewal applications.
(2) Administrative requirements.
(3) Security requirements, which shall include at a minimum, lighting, physical security, video security, alarm requirements, measures to prevent loitering, and on-site parking.
(4) Sanitary requirements.
(5) Electrical safety requirements.
(6) The specification of acceptable forms of picture identification that an alternative treatment center may accept when verifying a sale.
(7) Personnel requirements including how many volunteers an alternative treatment center is permitted to have and requirements for supervision.
(8) Labeling standards.
(9) Procedures for suspending or terminating the registration of alternative treatment centers that violate the provisions of this chapter or the rules adopted pursuant to this chapter, a schedule of fines for such violations, procedures for appealing any enforcement actions, and a schedule of fines.
(10) Procedures for inspections and investigations.
(11) Advertising restrictions, including a prohibition of misrepresentation and unfair practices.
(12) Permissible hours of operation.
(13) The fees for the processing and review of applications for registration as an alternative treatment center and regulation of an alternative treatment center after it has been approved by the department. Such fees shall be established in an amount that covers all costs of the department for the review, registration, and regulation of alternative treatment centers.
(b) The department shall adopt rules with the goal of protecting against diversion and theft, without imposing an undue burden on the alternative treatment centers or compromising the confidentiality of qualifying patients and their designated caregivers.
126-W:7 Departmental Administration, Alternative Treatment Centers.
I. Within 30 days of the adoption of rules pursuant to RSA 126-W:6, the department shall begin accepting applications for the operation of alternative treatment centers.
II. Within 18 months of the effective date of this section, provided that at least 5 applications have been submitted that score sufficiently high to receive a certificate, the department shall issue alternative treatment center registration certificates to the 5 highest-scoring applicants. Each registration certificate shall include a registry number that is unique to the alternative treatment center.
III. Any time an alternative treatment center registration certificate is revoked, relinquished, or expires without a renewal application being submitted, the department shall accept applications for a new alternative treatment center and issue registration certificates to the applicant who scores the highest.
IV. If at any time after one year after the effective date of this section, fewer than 5 alternative treatment centers hold valid registration certificates in New Hampshire, the department shall accept applications for a new alternative treatment center. Except as provided in paragraph V, no more than 5 alternative treatment centers may hold valid registration certificates at one time.
V.(a) An alternative treatment center applicant shall submit a completed department-approved application form with all required documentation and a non-refundable fee in an amount set by department rule. The alternative treatment center application and supporting materials shall include, at a minimum:
(1) The legal name, articles of incorporation, and bylaws of the alternative treatment center.
(2) The proposed physical address of the alternative treatment center, if a precise address has been determined, or, if not, the general location where it would be located. This may include a second location for the cultivation of cannabis.
(3) A description of the enclosed, locked facility that would be used in the cultivation of cannabis by the alternative treatment center.
(4) The name, address, and date of birth of each principal officer and board member of the alternative treatment center. The board of directors for the non-profit shall include at least one physician, nurse, or pharmacist licensed to practice in New Hampshire and at least 3 patients qualified to register as qualifying patients. The majority of board members shall be New Hampshire residents.
(5) Proposed security and safety measures that comply with the rules issued pursuant to RSA 126-W:6, including a description of interior and exterior lighting and security systems.
(6) The distance from any pre-existing private or public school.
(7) A copy of the proposed policy regarding services to qualifying patients who cannot afford to purchase cannabis for therapeutic use.
(8) Information demonstrating the applicant’s knowledge of organic growing methods to be used in their growing and cultivation of cannabis.
(9) Steps that will be taken to ensure the quality of the cannabis, including purity and consistency of dose.
(10) A start-up timetable that provides an estimated time from registration of the alternative treatment center to full operation and the assumptions used for the basis of those estimates.
(11) Information showing the applicant’s experience running a non-profit or other business.
(12) A description of any additional services that will be available to patients.
(13) The applicant’s plans for record keeping and inventory control.
(b) Any time one or more alternative treatment center registration applications are being considered, the department may, in partnership with the local governing body of the town or city where the applicants would be located, solicit input from the qualifying patients, designated caregivers, and the residents of the towns or cities.
(c) Each time an alternative treatment center certificate is granted, the decision shall be based on the overall health needs of qualifying patients and the safety of the public. The department shall evaluate applications for alternative treatment center registration certificates using an impartial and numerically scored competitive bidding process developed by the department in accordance with this chapter. The department shall require applicants to meet a minimum score to be considered. The registration considerations shall include the following criteria:
(1) The suitability of the proposed location or locations, including compliance with any local zoning laws and geographic convenience to patients from throughout the state of New Hampshire to alternative treatment centers if the applicant were approved.
(2) The proposed alternative treatment center’s plan for operations and services, whether it has sufficient capital to operate, and ability to provide a steady supply of cannabis to the qualifying patients in the state.
(3) The principal officer and board members’ character and relevant experience, including any training or professional licensing related to medicine, pharmaceuticals, natural treatments, botany, or cannabis cultivation and preparation and their experience running a non-profit organization or business.
(4) The applicant’s plan for making cannabis available on an affordable basis to qualifying patients enrolled in Medicaid or receiving Supplemental Security Income or Social Security Disability Insurance.
(5) The applicant’s plan for safe and accurate packaging and labeling of cannabis, including the applicant’s plan for ensuring that all cannabis is free of contaminants.
(6) The sufficiency of the applicant’s plans for record keeping and inventory control. Records shall be considered confidential health care information under New Hampshire law and shall be deemed protected health care information for purposes of the federal Health Insurance Portability and Accountability Act of 1996, as amended. Any dispensing records that an alternative treatment center is required to keep shall document transactions according to qualifying patients’ and designated caregivers’ registry identification numbers, rather than their names, to protect their confidentiality.
(7) The sufficiency of the applicant’s plans for safety and security, including proposed location and security devices employed.
(8) Whether the entity possesses or has the right to use sufficient land, buildings, and equipment to properly carry out its duties as an alternative treatment center.
VI. After an alternative treatment center is approved, but before it begins operations, it shall submit the registration and regulation fee paid to the department in accordance with the rules adopted by the department.
VII. Information required to be submitted to the department on an application for an alternative treatment center identifying the locations where cannabis is proposed to be grown, cultivated, harvested, and otherwise prepared for distribution to qualifying patients, designated caregivers, and alternative treatment centers, and any other department records identifying such location, shall be considered to be confidential information and not subject to disclosure pursuant to RSA 91-A, except that:
(a) Such information may be disclosed to a law enforcement agency upon request for purposes of enforcement under this chapter;
(b) The location may be disclosed to towns and cities when seeking input on locations, provided that town and city representatives keep the information confidential; and
(c) The name, address, and phone number of alternative treatment centers may be disclosed to qualifying patients.
VIII. The alternative treatment center’s certificate may be revoked at any time it commits a violation of this chapter or rules adopted by the department, including if it negligently or knowingly allows cannabis to be distributed to someone who is not exempt from penalties pursuant to this chapter.
IX. Not more than one year after an alternative treatment center receives it first registry certificate, an alternative treatment center shall pay a fee in an amount determined by the department.
X. Not more than one year after an alternative treatment center receives it first registry certificate, the department shall evaluate an alternative treatment center’s operations. A registration certificate may be revoked if the alternative treatment center:
(a) Committed violations of this act or department rules; or
(b) Is not operational.
XI. Alternative treatment centers shall be subject to inspection by the department. During an inspection, the department may review the alternative treatment center’s records, including its confidential dispensing records, which shall track transactions according to qualifying patients’ registry identification numbers to protect their confidentiality.
126-W:8 Alternative Treatment Centers; Requirements.
I. An alternative treatment center shall be operated on a not-for-profit basis for the benefit of its patients. An alternative treatment center need not be recognized as a tax-exempt organization by the Internal Revenue Service.
II. An alternative treatment center shall not be located in a residential district or within 1,000 feet of the property line of a pre-existing public or private elementary or secondary school.
III. An alternative treatment center shall implement appropriate security measures to deter and prevent the unauthorized entrance into areas containing cannabis and the theft of cannabis and shall ensure that each location has an operational security alarm system.
IV.(a) An alternative treatment center shall conduct a state and federal criminal records check for every person seeking to become a principal officer, board member, agent, volunteer, or employee before the person begins working at the alternative treatment center. An alternative treatment center shall not allow any person to be an alternative treatment center agent who:
(1) Was convicted of a felony or any drug-related offense; or
(2) Is under 21 years of age.
(b) An alternative treatment center shall create an identification badge for each alternative treatment center agent before the alternative treatment center agent possesses, cultivates, or transports cannabis on behalf of the alternative treatment center. The badges may include the alternative treatment center’s registration certificate number and either a unique number for each agent or his or her name.
(c) An alternative treatment center agent shall wear his or her badge at all times when working at an alternative treatment center, including at any cultivation location.
V. No person who has been convicted of a felony or any drug-related offense shall be an alternative treatment center agent. A person who is employed by or is an agent, volunteer, principal officer, or board member of an alternative treatment center who violates this paragraph shall be guilty of a violation punishable by a fine of up to $1,000. A subsequent violation of this paragraph shall be a misdemeanor.
VI. The operating documents of an alternative treatment center shall include procedures for the oversight of the alternative treatment center and procedures to ensure accurate record keeping.
VII. Each alternative treatment center shall keep the following records, in accordance with a records retention schedule established by the department:
(a) Records of the disposal of cannabis that is not distributed by the alternative treatment center to qualifying patients who have designated the alternative treatment center to cultivate for them.
(b) A record of each transaction, including the amount of cannabis dispensed, the amount of consideration, and the registry identification number of the qualifying patient, designated caregiver, or alternative treatment center.
VIII. Each alternative treatment center shall:
(a) Conduct an initial comprehensive inventory of all cannabis, including usable cannabis available for dispensing and mature cannabis plants at each authorized location on the date the alternative treatment center first dispenses cannabis.
(b) Conduct a monthly comprehensive inventory of all cannabis, including usable cannabis available for dispensing, mature cannabis plants, and seedlings at each authorized location.
IX. An alternative treatment center shall submit a department-approved incident report form on the next business day after it discovers a reportable incident. The report shall indicate the nature of the breach and the corrective actions taken by the alternative treatment center. Reportable incident shall mean:
(a) Confidential information accessed or disclosed in violation of department rules;
(b) Loss of inventory by theft or diversion;
(c) Unauthorized intrusion into the alternative treatment center or the additional location, if any;
(d) Any known violation of this chapter or department rules by an alternative treatment center agent; or
(e) Any other incident that the department by rule requires to be reported.
X. Alternative treatment centers shall not use pesticides in cannabis.
XI. No cannabis or paraphernalia at an alternative treatment center shall be visible from outside the property of the alternative treatment center.
XII. An alternative treatment center shall submit an annual report to the department that shall provide information required by the department in order to allow the department to evaluate the effectiveness and operations of the alternative treatment center.
XIII.(a) Each time an alternative treatment center agent dispenses cannabis to a qualifying patient directly or through the qualifying patient’s designated caregiver, he or she shall consult the alternative treatment center’s records to verify that the records do not indicate that the dispensing of the cannabis would cause the qualifying patient to receive more cannabis than is permitted in a 10-day period. Each time cannabis is dispensed, the alternative treatment center agent shall record the date the cannabis was dispensed and the amount dispensed. All records shall be kept according to the registry identification number of the qualifying patient and designated caregiver, if any.
(b) Except as provided in subparagraph (c), a qualifying patient shall not obtain more than 2 ounces of usable cannabis directly or through the qualifying patient’s designated caregiver during a 10-day period.
(c) After providing an opportunity for patients, experts, researchers, and physicians to be heard, the department may issue a rule adjusting the limit specified in subparagraph (a) to an amount that is reasonably necessary for a 10-day supply.
XIV.(a) Except when transporting cannabis in accordance with subparagraphs (b) or (c), an alternative treatment center agent shall only possess and manufacture cannabis at the alternative treatment center location or locations at which the alternative treatment center agents are employed. Volunteers shall only possess and manufacture cannabis at an alternative treatment center location. Volunteers shall not dispense cannabis.
(b) Distributions of cannabis to a qualifying patient or a designated caregiver for use by a qualifying patient shall be labeled with a document to identify the alternative treatment center, the patient’s registry number, or the caregiver’s number, the amount and form, the time and date of origin, and destination of the product.
(c) An alternative treatment center with an additional growing location shall label the cannabis that is being moved between the additional growing location and the alternative treatment center with a document that identifies the alternative treatment center by registry number, the time, date, origin, and destination of the material being transported, and the amount and form of cannabis and cannabis material that is being transported. Cannabis shall be transported only by an alternative treatment center agent who is not a volunteer.
XV.(a) An alternative treatment center shall not possess or cultivate cannabis in excess of the greater of the following quantities:
(1)(A) 80 cannabis plants, 160 seedlings, and 80 ounces of usable cannabis, or 6 ounces of usable cannabis per qualifying patient; and
(B) Three mature cannabis plants, 12 seedlings, and six ounces for each qualifying patient who has designated the alternative treatment center to provide him or her with cannabis for medical use. An alternative treatment center may also possess cannabis seeds, stalks, and unusable roots.
(b) An alternative treatment center may possess cannabis seeds, stalks, and unusable roots.
(c) An alternative treatment center or alternative treatment center agent shall not dispense, deliver, or otherwise transfer cannabis to a person other than:
(1) A qualifying patient who has designated the relevant alternative treatment center; or
(2) Such patient’s designated caregiver.
(d) All cultivation of cannabis shall take place in an enclosed, locked facility registered with the department and which can only be accessed by alternative treatment center agents.
XVI.(a) All cannabis dispensed by an alternative treatment center shall include a label specifying the weight of the cannabis and any other information the department requires to appear on the label. The label shall also specify that the cannabis is for therapeutic use and that diversion is a class B felony requiring revocation of one’s registry identification card.
(b) An alternative treatment center shall provide educational materials about cannabis to qualifying patients and their registered primary caregivers. Each alternative treatment center shall have an adequate supply of up-to-date educational material available for distribution. Educational materials shall be available for inspection by the department upon request. The educational material shall at least include information about the following:
(1) Strains of cannabis, routes of administration, and their different effects. Alternative treatment centers shall have educational materials available to assist in the selection of prepared cannabis. Alternative treatment centers shall provide tracking sheets to qualifying patients and registered primary caregivers who request them to keep track of the strains used and their effects.
(2) How to achieve proper dosage for different modes of administration. Emphasis shall be on using the smallest amount possible to achieve the desired effect. The impact of potency shall also be explained.
(3) Information on tolerance, dependence, and withdrawal shall be provided.
(4) Information regarding substance abuse signs and symptoms shall be available, as well as referral information.
(5) Information on whether the alternative treatment center’s cannabis and associated products meet organic certification standards.
(6) Information about possible side effects from the use of cannabis for medical purposes.
XVII.(a) Each alternative treatment center shall develop, implement, and maintain on the premises employee and agent policies and procedures to address the following requirements:
(1) A job description or employment contract developed for all employees and a volunteer agreement for all volunteers, which includes duties, authority, responsibilities, qualifications, and supervision.
(2) Training in and adherence to confidentiality laws.
(3) The proper use of security measures and controls that have been adopted.
(4) Specific procedural instructions on how to respond to an emergency.
(b) All alternative treatment centers shall prepare training documentation for each employee and have employees sign a statement indicating the date, time, and place the employee received said training and topics discussed, to include name and title of presenters. The alternative treatment center shall maintain documentation of an employee’s and a volunteer’s training for a period of at least 6 months after termination of an employee’s period of employment or the volunteer’s period of voluntary service.
(c) Each alternative treatment center shall maintain a personnel record for each alternative treatment center agent that includes an application for employment or to volunteer and a record of any disciplinary action taken.
XVIII. A provider shall not:
(a) Accept, solicit, or offer any form of pecuniary remuneration from or to an alternative treatment center, except if the provider is employed by an alternative treatment center.
(b) Offer a discount or other thing of value to a patient who uses or agrees to use a particular alternative treatment center.
(c) Examine a patient in relation to issuing a written certification at a location where cannabis is sold or distributed.
(d) Hold an economic interest in an alternative treatment center if the provider issues written certifications to patients.
126-W:9 Therapeutic Use of Cannabis Advisory Council.
I. There is hereby established a therapeutic use of cannabis advisory council comprised of:
(a) Two members of the house of representatives, appointed by the speaker of the house of representatives.
(b) One member of the senate, appointed by the senate president.
(c) The commissioner of the department of health and human services, or designee.
(d) The commissioner of the department of safety, or designee.
(e) The attorney general, or designee.
(f) One physician with experience in therapeutic use of cannabis issues, appointed by the New Hampshire Medical Society.
(g) One nurse practitioner, appointed by the New Hampshire Nurse Practitioner Association.
(h) One representative of a community hospital, appointed by the governor.
(i) One representative of the New Hampshire Civil Liberties Union.
(j) One qualifying patient, appointed by the governor.
(k) One member of the public, appointed by the governor.
(l) One member from a hospital in New Hampshire, appointed by the governor.
(m) One member from the board of medicine, appointed by the executive director of the board of medicine.
(n) One member from the board of nursing, appointed by the executive director of the board of nursing.
II. The advisory council shall:
(a) Assist the department in adopting and revising rules to implement this chapter.
(b) Collect information, including:
(1) Satisfaction of qualifying patients with the therapeutic use of cannabis program.
(2) Any effect the therapeutic use of cannabis law has had on referrals to regulatory boards.
(3) Best practices in other states that allow the therapeutic use of cannabis.
(4) The ability of qualifying patients in all areas of the state to obtain timely access to high-quality cannabis.
(5) Any research studies regarding health effects of cannabis for patients.
(6) The effectiveness of New Hampshire’s therapeutic use of cannabis program.
(7) Efforts to educate New Hampshire physicians about research relating to the therapeutic use of cannabis.
(8) The effectiveness of alternative treatment centers, individually and collectively, in serving the needs of qualifying patients, including the provision of educational and support services, the reasonableness of their fees, whether they are generating any complaints or security problems, and the sufficiency of the number operating to serve the registered qualifying patients of New Hampshire.
(9) The sufficiency of the regulatory and security safeguards contained in this chapter and adopted by the department to ensure that access to and use of cannabis cultivated is provided only to persons authorized for such purposes.
(10) Any illegal distribution or diversion of cannabis cultivated pursuant to this chapter to individuals who are not alternative treatment center agents, qualifying patients, visiting qualifying patients, or designated caregivers.
(c) Make recommendations to the legislature and the department for any additions or revisions to the department rules or this chapter.
(d) Five years after the effective date of this chapter, issue a formal opinion on whether the program should be continued or repealed.
III. The advisory council may meet as often as is necessary to effectuate its goals. The first meeting shall be called by the commissioner of the department of health and human services, or designee within 45 days of the effective date of this chapter. At the first meeting, a chairman shall be elected by the members.
IV. On or before January 1 of each year, the advisory council shall provide a report to the department of health and human services and the health and human services oversight committee established under RSA 126-A:13 on its findings.
126-W:10 Annual Report. The commissioner of the department of health and human services shall report annually on the therapeutic use of cannabis program established under this chapter to the health and human services oversight committee established under RSA 126-A:13. The initial report shall be filed with the chairman of the committee no later than December 1, 2014. The commissioner’s report shall include the following information:
I. The number of designated caregivers and the number of qualifying patients, by county.
II. Any other issues related to the implementation of the therapeutic use of cannabis permitted under this chapter that the committee shall request.
III. A summary of the report submitted by alternative treatment centers as required under RSA 126-W:8, XII.
126-W:11 Registry Identification Card and Certificate Fund. There is hereby established in the office of the state treasurer a fund to be known as the registry identification card and certificate fund which shall be kept separate and distinct from all other funds. The fund is established to pay for the operational expenses of permitting the therapeutic use of cannabis as established in this chapter. The moneys in this fund shall be nonlapsing and continually appropriated to the department. Interest on fund balances shall accrue to the fund. All fines and other income received by the department and all monetary fees, gifts, grants, and donations received by the department pursuant to this chapter shall be deposited in the fund.
2 New Subparagraph; Application of Receipts; Registry Identification Card and Certificate Fund. Amend RSA 6:12, I(b) by inserting after subparagraph (310) the following new subparagraph:
(311) Moneys deposited in the registry identification card and certificate fund established in RSA 126-W:11.
3 New Paragraph; Controlled Drug Act; Acts Prohibited. Amend RSA 318-B:2 by inserting after paragraph I-a the following new paragraph:
I-b. It shall be unlawful for a qualifying patient or designated caregiver as defined under RSA 126-W:1 to sell cannabis to another person who is not a qualifying patient or designated caregiver. A conviction for the sale of cannabis to a person who is not a qualifying patient or designated caregiver shall not preclude or limit a prosecution or conviction of any person for sale of cannabis or any other offense defined in this chapter.
4 New Paragraph; Controlled Drug Act; Penalties. Amend RSA 318-B:26 by inserting after paragraph IX the following new paragraph:
IX-a. A qualifying patient or designated caregiver as defined in RSA 126-W:1 who is convicted of selling cannabis to a person who is not a qualifying patient or designated caregiver shall be guilty of a class B felony and shall be sentenced to a maximum term of imprisonment of not more than 7 years, a fine of not more than $300,000, or both.
5 Effective Date. This act shall take effect upon its passage.
LBAO
13-0279
01/15/13
HB 573-FN - FISCAL NOTE
AN ACT relative to the use of marijuana for medicinal purposes.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, New Hampshire Association of Counties, New Hampshire Municipal Association, and the Departments of Corrections, Safety and Health and Human Services state this bill, as introduced, will have an indeterminable fiscal impact on state, county and local expenditures, and state and local revenue in FY 2013 and each year thereafter. There will be no impact on county revenue.
METHODOLOGY:
The Judicial Branch states this bill would enact RSA 126-W relative to the use of marijuana for medicinal purposes. The Branch identified seven sections in the bill that may result in additional costs and four sections of the bill that could result in savings to the Branch.
The potential costs could arise from the following:
• Proposed RSA 126-W:2, XII makes it a class B felony to sell marijuana to an individual who is not a cardholder;
• Proposed RSA 126-W:3, III provides for administrative hearings in the Department of Health and Human Services if an individual is aggrieved by a Department decision. Such hearings could result in appeals to the Supreme Court which has discretionary review of such appeals;
• Proposed RSA 126-W:3, IX(b) and (c) make it a violation with a maximum fine of $150 for a qualifying patient or designated caregiver to fail to notify the Department of any change in name or address;
• Proposed RSA 126-W:3, XI(c) makes it a class B misdemeanor to breach the confidentiality of information obtained pursuant to the chapter;
• Proposed RSA 126-W:5, IV provides for a $500 fine for a fraudulent representation to a law enforcement official of any fact or circumstance relating to the use of medicinal marijuana to avoid arrest or prosecution;
• Proposed RSA 126-W:6 allows medical use of marijuana to be an affirmative defense in any prosecution of an offense involving marijuana. This defense has the potential to elongate trials; and
• Proposed RSA 126-W:8, IX(d) makes it a violation for the first offense and a misdemeanor for subsequent offense for and agent, volunteer, officer, or board member of an alternative treatment center to have been convicted of a drug-related offense.
Potential savings could result from the following:
• Proposed RSA 126-W:2, I provides that a qualifying patient is not subject to arrest, prosecution, or penalty for the medical use of marijuana if the patient has no more than two ounces of marijuana;
• Proposed RSA 126-W:2, II provides a designated care giver is not subject to arrest, prosecution, or penalty for the medical use of marijuana if the caregiver has no more than two ounces of marijuana;
• Proposed RSA 126-W:2, IV provides that an alternative treatment center may accept marijuana seeds, seedlings, plants or usable marijuana; and
• Proposed RSA 126-W:8, VIII provides no registered alternative treatment center, nor one of its agents, shall be subject to arrest, or prosecution for any marijuana related offense provided the center or agent was acting in accordance with the chapter.
The Branch has no information on which to estimate the bill’s impact on the number of felonies, misdemeanors, or violations that would be tried or avoided, and therefore cannot provide an accurate estimate of the fiscal impact on state revenue and expenditures. The Branch can, however, provide information on the cost of processing each type of case. The Branch states the average cost of processing a routine felony case in the superior court will be $405.37 in FY 2014 and $415.78 in FY 2015. In the district division of the circuit court, the average cost of processing a class A misdemeanor will be $62.71 in FY 2014 and $64.40 in FY 2015; the average cost of processing a class B misdemeanor will be $44.32 in FY 2014 and $45.84 in FY 2015; and the average cost of processing a violation-level offense will be $42.85 in FY 2014 and $44.36 in FY 2015. The Branch states these cost estimates are based on data that is more than seven years old and does not reflect the changes to the courts over that same period of time or the impact these changes may have on the processing of these types of cases. Additionally, the Branch states that if a single case were to be appealed to the New Hampshire Supreme Court, the fiscal impact would be in excess of $10,000.
The Judicial Council states the bill may slightly increase Council expenditures. The Council assumes a very small number of people who suffer from a debilitating medical condition are currently prosecuted each year for either the possession or manufacture of marijuana. The Council also assumes a very small number of severely ill people with the types of serious medical conditions and chronic pain issues who would be eligible for prescription marijuana under the bill would divert properly prescribed marijuana in order to sell the drug for material gain. The Council therefore expects the legalization of marijuana possession for medicinal purposes to have no impact on Council expenditures. The Council states, however, that there is no way of knowing to what extent the introduction of licensed commercial marijuana production facilities will lead to collateral crimes unrelated to the dispensing of prescription marijuana. Should such additional crimes occur, and should arrested individuals be eligible for appointed counsel at state expense, a flat fee of $756.25 per felony is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge and $4,100 for a felony charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney, and assigned counsel rates for Supreme Court appeals are $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal. The Council cannot determine the fiscal impact as it cannot predict the number of cases which may occur.
The New Hampshire Association of Counties states to the extent fewer individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have decreased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The New Hampshire Municipal Association states that while the bill may impact local law enforcement officials, it is unable to determine the fiscal impact.
The Department of Corrections states it is not able to determine the fiscal impact of this bill because it does not have sufficient detail to predict the number of individuals who would be subject to this legislation. The Department states the average annual cost of incarcerating an individual in the general prison population for the fiscal year ending June 30, 2012 was $35,071. The cost to supervise an individual by the Department’s division of field services for the fiscal year ending June 30, 2012 was $608.
The Department of Safety states the proposed legislation requires a criminal record check through the FBI criminal records database and a New Hampshire criminal history check for all caregivers, alternative treatment center agents, principle officers, board members, and employees. The Department is not able to determine the number of additional criminal background checks that would result from the bill and cannot estimate the fiscal impact. The Department states that if the volume of record requests becomes significant, additional personnel may be needed. The Division of State Police assumes any reduction in the number of drug cases handled by the laboratory would allow resources to be reallocated to other cases that may have been delayed, resulting in no fiscal impact to the lab.
The Department of Health and Human Services assumes the revenue generated by application fees, fines, and private donations will be sufficient to offset the cost of implementing and administering its responsibilities under the bill, however the Department is unable to estimate the potential revenue and states the revenue would not be available until FY 2014. The Department states it does not have existing staff to perform the responsibilities and assumes two additional full-time positions would be necessary. The Department’s responsibilities would include the following:
• Process applications and issue and renew I.D. cards within 15 days of receiving an application;
• Issue photo I.D. cards to qualifying patients and named designated caregivers within 5 days of approving an application;
• Issue replacement I.D. cards within 5 days when cards are lost or when there is a change in name or address;
• Require a state and federal criminal record check, through the Department of Safety, for designated caregivers, principal officers, agents, and employees or volunteers of alternative treatment centers. On an annual basis, conduct annual state and federal criminal record checks and reissue I.D. cards to principal officers, agents, and employees or volunteers of alternative treatment centers;
• Create and maintain a database of qualifying patients, designated caregivers, and principal officers, agents, and employees or volunteers of alternative treatment centers;
• Issue monthly written statements to alternative treatment centers providing: the number of qualifying patients who have designated the center, registration numbers for the patient and designated caregiver, and an update of certain changes;
• Provide written notices to each treatment center as qualifying patients designate or revoke designation for that center;
• Verify the validity of a registration I.D. card for law enforcement, employer, landlord court, administrative hearing officer, or health care provider;
• Submit an annual report to the legislature providing comprehensive data on the program;
• Adopt administrative rules for the program and accept applications for alternative treatment centers within 30 days of the adoption of rules;
• Inspect alternative treatment centers to review dispensing records and receive incident reports concerning rules violations, and loss of inventory by theft or diversion;
• Provide an annual report to the Health and Human Services Oversight Committee as described in RSA 126-W:10; and
• Determine and enforce civil infractions for violations of the chapter.
The Department estimates program costs as follows:
FY 2014 |
FY 2015 |
FY 2016 |
FY 2017 | |
|
Build and maintain a database and voice response telephone system for law enforcement to verify I.D. cards |
$85,000 |
$5,000 |
$5,000 |
$5,000 |
Licensing clerk salary (LG 11) |
$25,584 |
$26,540 |
$27,515 |
$28,646 |
Licensing clerk benefits |
$21,232 |
$22,851 |
$24,580 |
$26,475 |
Program specialist salary (LG 25) |
$44,753 |
$46,722 |
$48,770 |
$50,915 |
Program specialist benefits |
$25,023 |
$26,846 |
$28,785 |
$30,880 |
Total Cost to State |
$201,592 |
$127,959 |
$134,650 |
$141,916 |