HOUSE DOCKET, NO. 3216 FILED ON: 1/12/2009 AMENDED
HOUSE . . . . . . . . . . . . . . No. 2160
The Commonwealth of Massachusetts
_______________
PRESENTED BY:
Frank I. Smizik
_______________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the passage of the accompanying bill:
An Act to regulate the medical use of marijuana by patients approved by physicians and certified by the department of public health.
_______________
PETITION OF:
Name:
District/Address:
Frank I. Smizik
15th Norfolk
John V. Fernandes
10th Worcester
Charles A. Murphy
21st Middlesex
Tom Sannicandro
7th Middlesex
Elizabeth A. Malia
11th Suffolk
Alice K. Wolf
25th Middlesex
Patricia D. Jehlen
Second Middlesex
Byron Rushing
9th Suffolk
Anne M. Gobi
5th Worcester
James B. Eldridge
Middlesex and Worcester
Ellen Story
3rd Hampshire
Robert L. Hedlund
Plymouth and Norfolk
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 2247 OF 2007-2008.]
The Commonwealth of Massachusetts
_______________
In the Year Two Thousand and Nine
_______________
An Act to regulate the medical use of marijuana by patients approved by physicians and certified by the department of public health.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
Chapter 94 of the Massachusetts General Law is hereby amended by inserting the following as Chapter 94E: --
Chapter 94E Section 1. Short Title; Purpose.
Section 1. Sections 1 to 10, inclusive, shall be known, and may be cited, as "The Massachusetts Medical Marijuana Act." It is the purpose of this act to protect patients with debilitating medical conditions, as well as their practitioners and designated caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.
Chapter 94E Section 2. Definitions.
Section 2. As used in this chapter, the following words shall, unless the context clearly requires
otherwise, have the following meanings:
(a) "Cardholder" means a qualifying patient, a primary caregiver, or a principal officer,
board member, employee, volunteer, or agent of a medical treatment center who has been issued and possesses a valid registry identification card.
(b) "Medical treatment center" means a not-for-profit entity registered under Chapter 94E Section 6 that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, sells, and/or dispenses marijuana and/or related supplies and educational materials to registered qualifying patients and their registered primary caregivers who have designated it as one of their primary caregivers.
(c) "Debilitating medical condition" means one or more of the following:
(1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, nail patella, or the treatment of these conditions;
(2) 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 but not limited to, those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to, those characteristic of multiple sclerosis; or
(3) Any other medical condition or its treatment approved by the department, as provided for in Chapter 94E Section 4.
(d) "Department" means the Massachusetts Department of Public Health or its successor agency.
(e) "Enclosed, locked facility” means a closet, room, greenhouse, or other enclosed area equipped with locks or other security devices that permit access only by a cardholder.
(f) Marijuana" has the meaning given that term in Chapter 94C Section 1.
(g) "Medical use" means the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of marijuana or paraphernalia relating to the consumption of marijuana to alleviate the symptoms or effects of a registered qualifying patient's debilitating medical condition.
(h) "Practitioner" means a person who is licensed with authority to prescribe drugs pursuant to Chapter 94C Section 18.
(i) "Primary caregiver" means either a medical treatment center or a natural person who is at least eighteen (18) years old who has agreed to assist with a person's medical use of marijuana and who does not have a felony drug conviction. Unless the primary caregiver is a medical treatment center, a primary caregiver may assist no more than five (5) qualifying patients with their medical use of marijuana.
(j) "Qualifying patient" means a person who has been diagnosed by a licensed physician as having a debilitating medical condition.
(k) "Usable marijuana" means the dried leaves and flowers of marijuana, and any mixture or preparation thereof, and does not include the seeds, stalks, and roots of the plant.
(l) “Visiting qualifying patient” means a person with a debilitating medical condition that is currently participating in another state’s medical marijuana program, is in possession of a valid out-of-state identification card or its equivalent, and has resided in Massachusetts for less than 30 days.
(l) "Written certification" means a document signed by a practitioner, stating that in the practitioner's professional opinion the potential benefits of the medical use of marijuana would likely outweigh the health risks for the qualifying patient. A written certification shall be made only in the course of a bona fide practitioner-patient relationship after the practitioner has completed a full assessment of the qualifying patient's medical history. The written certification shall specify the qualifying patient's debilitating medical condition or conditions.
Chapter 94E Section 3. Protections for the medical use of marijuana.
Section 3. (a) A qualifying patient who has in his or her possession a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana; provided, that the qualifying patient possesses an amount of marijuana that does not exceed twelve (12) marijuana plants and four (4) ounces of usable marijuana. Said plants shall be stored in an enclosed, locked facility.
(b) No school, employer or landlord may refuse to enroll, employ or lease to or otherwise penalize a person solely for his or her status as a registered qualifying patient or a registered primary caregiver.
(c) A primary caregiver, who has in his or her possession, a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marijuana; provided, that the primary caregiver possesses an amount of marijuana which does not exceed twelve (12) marijuana plants and four (4) ounces of usable marijuana for each qualifying patient to whom he or she is connected through the department's registration process.
(d) There shall exist a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marijuana in accordance with this act if the qualifying patient or primary caregiver:
(1) Is in possession of a registry identification card; and
(2) Is in possession of an amount of marijuana that does not exceed the amount permitted under this chapter. Such presumption may be rebutted by evidence that conduct related to marijuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the medical condition.
(e) A primary caregiver may receive reimbursement for costs associated with assisting a registered qualifying patient's medical use of marijuana. Compensation shall not constitute sale of controlled substances.
(f) A practitioner shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by the Massachusetts Board of Registration in Medicine or by any another business or occupational or professional licensing board or bureau solely for providing written certifications or for otherwise stating that, in the practitioner's professional opinion, the potential benefits of the medical marijuana would likely outweigh the health risks for a patient.
(g) Any marijuana, marijuana paraphernalia, interest in or right to property that is possessed, owned, or used in connection with the medical use of marijuana as allowed under this act, or acts incidental to such use, shall not be seized or forfeited.
(h) No person shall be subject to arrest or prosecution for constructive possession, conspiracy, aiding and abetting, being an accessory, or any other offense for simply being in the presence or vicinity of the medical use of marijuana as permitted under this chapter or for assisting a registered qualifying patient with using or administering marijuana.
(i) A practitioner, nurse or pharmacist shall not be subject to arrest, prosecution or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, solely for discussing the benefits or health risks of medical marijuana or its interaction with other substances with a patient.
(j) Except as provided in this paragraph, a registry identification card or its equivalent issued under the laws of another U.S. state, U.S. territory, or the District of Columbia to permit the medical use of marijuana shall have the same force and effect as a registry identification card issued by the department, and, for purposes of this Act, entitle a visiting qualify patient to the same rights and protections as a registered qualifying patient residing in Massachusetts. This paragraph shall not apply if the person has been a resident of Massachusetts for 30 days or longer at the time they present their out-of-state identification card or its equivalent.
(k) Notwithstanding the provisions of Chapter 94E Section 2(h) or Chapter 94E Section 3(c), no primary caregiver other than a medical treatment center shall possess an amount of marijuana in excess of twenty-four (24) marijuana plants and eight (8) ounces of usable marijuana for qualifying patients to whom he or she is connected through the department's registration process.
(l) A registered cardholder or visiting qualifying patient may give marijuana to another cardholder or a medical treatment center to whom they are not connected by the department's registration process, provided that no consideration is paid for the marijuana, and that the recipient does not exceed the limits specified in Chapter 94E Section 3(a).
(m) For the purposes of medical care, including organ and tissue transplants, a registered qualifying patient’s authorized use of marijuana shall be considered the equivalent of the authorized use of any other medication used at the direction of a physician, and shall not constitute the use of an illicit substance.
Chapter 94E Section 4. Department to issue regulations.
Section 4. (a) Not later than ninety (90) days after the effective date of this chapter, the department shall promulgate regulations governing the manner in which it shall consider petitions from the public to add debilitating medical conditions to those set forth in Chapter 94 E Section 2(a). In considering such petitions, the department shall include public notice of, and an opportunity to comment in a public hearing, upon such petitions. The department shall, after hearing, approve or deny such petitions within one hundred eighty (180) days of submission. The approval or denial of such a petition shall be considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the superior court. The denial of a petition shall not disqualify qualifying patients with that condition, if they have a chronic or debilitating medical condition.
The denial of a petition shall not prevent a person with the denied condition from raising an affirmative defense.
(b) Not later than ninety (90) days after the effective date of this chapter, the department shall promulgate regulations governing the manner in which it shall consider applications for and renewals of registry identification cards for qualifying patients and primary caregivers. The department's regulations shall establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this chapter. The department may vary the application and renewal fees along a sliding scale that accounts for a qualifying patient's or caregiver's income. The department may accept donations from private sources in order to reduce the application and renewal fees.
Chapter 94E Section 5. Administration of regulations.
Section 5. (a) The department shall issue registry identification cards to qualifying patients who submit the following, in accordance with the department's regulations:
(1) Written certification as defined in Chapter 94E subsection 2(i);
(2) Application or renewal fee;
(3) Name, address, and date of birth of the qualifying patient; provided, however, that if the patient is homeless, no address is required;
(4) Name, address, and telephone number of the qualifying patient's practitioner; and
(5) Name, address, and date of birth of each primary caregiver of the qualifying patient, if any.
(b) The department shall not issue a registry identification card to a qualifying patient under the age of eighteen (18) unless:
(1) The qualifying patient's practitioner has explained the potential risks and benefits of the medical use of marijuana to the qualifying patient and to a parent, guardian or person having legal custody of the qualifying patient; and
(2) A parent, guardian or person having legal custody consents in writing to:
(i) Allow the qualifying patient's medical use of marijuana;
(ii) Serve as one of the qualifying patient's primary caregivers; and
(iii) Control the acquisition of the marijuana, the dosage, and the frequency of the medical use of marijuana by the qualifying patient.
(c) The department shall verify the information contained in an application or renewal submitted pursuant to this section, and shall approve or deny an application or renewal within fifteen (15) days of receiving it. The department may deny an application or renewal only if the applicant did not provide the information required pursuant to this section, or if the department determines that the information provided was falsified. Rejection of an application or renewal is considered a final department action, subject to judicial review. Jurisdiction and venue for judicial review are vested in the superior court.
(d) The department shall issue a registry identification card to each primary caregiver, if any, who is named in a qualifying patient's approved application, up to a maximum of two (2) primary caregivers per qualifying patient.
(e) The department shall issue registry identification cards within five (5) days of approving an application or renewal, which shall expire two (2) years after the date of issuance. Registry identification cards shall contain:
(1) The date of issuance and expiration date of the registry identification card;
(2) A random registry identification number; and
(3) A photograph, if the department decides to require one; and
(4) Any additional information as required by regulation or the department.
(f) Persons issued registry identification cards shall be subject to the following:
(1) A qualifying patient who has been issued a registry identification card shall notify the department of any change in the qualifying patient's name, address, or primary caregiver; or if the qualifying patient ceases to have his or her debilitating medical condition, within ten (10) days of such change.
(2) A registered qualifying patient who fails to notify the department of any of these changes is
responsible for a civil infraction, punishable by a fine of no more than one hundred fifty dollars ($150). If the person has ceased to suffer from a debilitating medical condition, the card shall be deemed null and void and the person shall be liable for any other penalties that may apply to the person's non-medical use of marijuana.
(3) A registered primary caregiver or principal officer, board member, employee, volunteer, or agent of a medical treatment center shall notify the department of any change in his or her name or address within ten (10) days of such change. A primary caregiver or principal officer, board member, employee, volunteer, or agent of a medical treatment center who fails to notify the department of any of these changes is responsible for a civil infraction, punishable by a fine of no more than one hundred fifty dollars ($150).
(4) When a qualifying patient or primary caregiver notifies the department of any changes listed in this subsection, the department shall issue the registered qualifying patient and each primary caregiver a new registry identification card within ten (10) days of receiving the updated information and a twenty-five dollar ($25.00) fee. When a principal officer, board member, employee, volunteer, or agent of a medical treatment center notifies the department of any changes listed in this subsection, the department shall issue the cardholder a new registry identification card within ten (10) days of receiving the updated information and a twenty-five dollar ($25.00) fee.
(5) When a qualifying patient who possesses a registry identification card changes his or her primary caregiver, the department shall notify the primary caregiver within ten (10) days. The primary caregiver's protections as provided in this chapter shall expire ten (10) days after notification by the department. This expiration does not apply to the primary caregiver's protections stemming from his or her relationships with other patients.
(6) If a cardholder loses his or her registry identification card, he or she shall notify the department and submit a twenty-five dollar ($25.00) fee within ten (10) days of losing the card. Within five (5) days, the department shall issue a new registry identification card with new random identification number.
(7) If a qualifying patient, primary caregiver, or a principal officer, board member, employee, volunteer, or agent of a medical treatment center willfully violates any provision of this chapter as determined by the department, his or her registry identification card may be revoked.
(g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any governmental agency.
(h) (1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and practitioners, are confidential and protected under the federal Health Insurance Portability and Accountability Act of 1996.
(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Individual names and other identifying information on the list shall be confidential, exempt from the provisions of Massachusetts Public Records Law, M.G.L. Chapter 66, section 10, and not subject to disclosure, except to authorized employees of the department as necessary to perform official duties of the department.
(i) The department shall verify to law enforcement personnel whether a registry identification card is valid solely by confirming the random registry identification number.
(j) It shall be a crime, punishable by up to one hundred eighty (180) days in jail and a one thousand dollar ($1,000) fine, for any person, including an employee or official of the department or another state agency or local government, to breach the confidentiality of information obtained pursuant to this chapter.
Notwithstanding this provision, the department employees may notify law enforcement about falsified or fraudulent information submitted to the department.
(k) On or before January 1 of each odd numbered year, the department shall report to the Joint Committee on Public Health, and to the Joint Committee on the Judiciary, on the use of marijuana for symptom relief. The report shall provide:
(1) The number of applications for registry identification cards, the number of qualifying patients and primary caregivers approved, the nature of the debilitating medical conditions of the qualifying patients, the number of registry identification cards revoked, and the number of practitioners providing written certification for qualifying patients;
(2) An evaluation of the costs, savings, and revenue resulting from permitting the use of marijuana for symptom relief, including any costs to law enforcement agencies and costs of any litigation;
(3) Statistics regarding the number of marijuana-related prosecutions against registered patients and caregivers, and an analysis of the facts underlying those prosecutions;
(4) Statistics regarding the number of prosecutions against physicians for violations of this chapter; and
(5) Whether the United States Food and Drug Administration has altered its position regarding the use of marijuana for medical purposes or has approved alternative delivery systems for marijuana.
(m) The application for qualifying patients' registry identification cards shall include a question asking whether the patient would like the department to notify him or her of any clinical studies about marijuana's risk or efficacy. The department shall inform those patients who answer in the affirmative of any such studies it is notified of that will be conducted in Massachusetts. The department may also notify those patients of medical studies conducted outside of Massachusetts.
Chapter 94E Section 6 Medical treatment centers.
Section 6. (a) A medical treatment center registered under this section may acquire, possess, cultivate, manufacture, deliver, transfer, transport, supply, sell, and/or dispense marijuana, and/or related supplies and educational materials, to registered qualifying patients and their registered primary caregivers who have designated it as one of their primary caregivers. A medical treatment center is a primary caregiver. A medical treatment center may cultivate and possess whichever of the following quantities is greater: (a) 96 marijuana plants and 32 ounces of useable marijuana; or (b) 12 plants and 4 ounces for each registered qualifying patient who has designated the medical treatment center to provide him or her with marijuana for medical use. However, if a registered qualifying patient who designated the medical treatment center ceases to be a registered qualifying patient or ceases to designate the medical treatment center, the medical treatment center shall have 10 days after the notification to lawfully dispose of or destroy any excess plants or marijuana. A medical treatment center may also possess marijuana seeds, stalks, and unusable roots.
(b) Registration of medical treatment centers: department authority.
(1) Not later than ninety (90) days after the effective date of this act, the department shall promulgate reasonable regulations governing the manner in which it shall consider applications for registration certificates for medical treatment centers, including regulations governing:
(i) The form and content of registration and renewal applications;
(ii) Minimum oversight requirements for medical treatment centers;
(iii) Minimum record-keeping requirements for medical treatment centers;
(iv) Minimum security requirements for medical treatment centers, which shall include that each medical treatment center location must be protected by a fully operational security alarm system; and
(v) Procedures for suspending or terminating the registration of medical treatment centers that violate the provisions of this section or the regulations promulgated pursuant to this subsection.
(2) The department shall design regulations with the goal of protecting against diversion and theft, without imposing an undue burden on the registered medical treatment centers or compromising the confidentiality of registered qualifying patients and their registered designated caregivers. Any dispensing records that a registered medical treatment center is required to keep shall track transactions according to registered qualifying patients', registered caregivers’, and registered medical treatment centers' registry identification numbers, rather than their names, to protect their confidentiality.
(3) Within ninety (90) days of the effective date of this act, the department shall begin accepting applications for the operation of up to 19 medical treatment centers.
(4) Within one hundred-fifty (150) days of the effective date of this act, the department shall provide for at least one public hearing on the granting of applications to medical treatment centers.
(5) Within one hundred-ninety (190) days of the effective date of this act, the department shall grant registration certificates to 19 medical treatment centers, providing at least 19 applicants applied who meet the requirements of this act.
(6) Any time a medical treatment center registration certificate is revoked, is relinquished, or expires, the department shall accept applications for a new medical treatment center.
(7) If at any time after one year after the effective date of this act fewer than 19 medical treatment centers are holding valid registration certificates in Massachusetts or if at any time the department or legislative oversight committee conclude that the existing medical treatment centers are not sufficient to provide safe access to registered qualifying patients in Massachusetts, the department shall accept applications for enough additional medical treatment centers to serve all qualifying patients.
(c) Medical treatment center and agent applications and registration.
(1) Each application for a medical treatment center shall include:
(i) A non-refundable application fee paid to the department in the amount of two hundred fifty dollars ($250);
(ii) The proposed legal name, proposed articles of incorporation, and proposed bylaws of the medical treatment center;
(iii) The proposed physical address of the medical 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 medical marijuana;
(iv) A description of the enclosed, locked facility that would be used in the cultivation of marijuana;
(v) The name, address, and date of birth of each principal officer and board member of the medical treatment center;
(vi) Proposed security and safety measures, which shall include at least one security alarm system for each location, planned measures to deter and prevent the unauthorized entrance into areas containing marijuana and the theft of marijuana; and
(vii) Proposed procedures to ensure accurate record keeping.
(2) Anytime one or more medical treatment center registration applications are being considered, the department shall also allow for comment by the public and shall solicit input from registered qualifying patients, registered primary caregivers, and the towns or cities where the applicants would be located.
(3) Each time when a medical treatment center certificate is granted, the decision shall be based on the overall health needs of qualified patients and the safety of the public, including, but not limited to, the following factors:
(i) Convenience to patients from throughout the commonwealth of Massachusetts to medical treatment centers if the applicant were approved;
(ii) The applicant's ability to provide a steady supply to the registered qualifying patients in the commonwealth;
(iii) The applicant's relevant experience, including any experience running a non-profit or business;
(iv) The wishes of qualifying patients regarding which applicant should be granted a registration certificate;
(v) The wishes of the city or town where the applicant would be located; and
(vi) The sufficiency of the applicant's plans for record keeping, which records shall be considered confidential health care information under Massachusetts law and are intended to be deemed protected health care information for purposes of the federal health insurance portability and accountability act of 1996, as amended; and
(vii) The sufficiency of the applicant's plans for safety and security, including proposed location and security devices.
(4) After a medical treatment center is approved, but before it begins operations, it shall submit the following to the department:
(i) A fee paid to the department in the amount of five thousand dollars ($5,000);
(ii) The legal name and articles of incorporation of the medical treatment center;
(iii) The physical address of the medical treatment center; this may include a second address for the secure cultivation of marijuana;
(iv) The name, address, and date of birth of each principal officer and board member of the medical treatment center;
(v) The name, address, and date of birth of any person who will be an agent of or employed by the medical treatment center at its inception.
(5) The department shall track the number of registered qualifying patients who designate each medical treatment center as a primary caregiver, and issue a written statement to the medical treatment center of the number of qualifying patients who have designated the medical treatment center to serve as a primary caregiver for them and each of those qualifying patients’ registry identification numbers. This statement shall be updated each time a new registered qualifying patient designates the medical treatment center or ceases to designate the medical treatment center and may be transmitted electronically over an encrypted connection if the department's regulations so provide. The department may provide by regulation that the updated written statements will not be issued more frequently than twice each week.
(6) Except as provided in Chapter 94E section 6 (c)(7), the department shall issue each principal officer, board member, agent, volunteer, and employee of a medical treatment center a registry identification card or renewal card within ten (10) days of receipt of the person's name, address, date of birth, and a fee in an amount established by the department. Each card shall specify that the cardholder is a principal officer, board member, agent, volunteer, or employee of a medical treatment center and shall contain the following:
(i) The name, address, and date of birth of the principal officer, board member, agent, volunteer, or employee;
(ii) The legal name of the medical treatment center to which the principal officer, board member, agent, volunteer, or employee is affiliated;
(iii) A random identification number that is unique to the cardholder;
(iv) The date of issuance and expiration date of the registry identification card; and
(v) A photograph, if the department decides to require one.
(7) Except as provided in this subsection, the department shall not issue a registry identification card to any principal officer, board member, agent, volunteer, or employee of a medical treatment center who has been convicted of a felony drug offense. The department may conduct a background check of each principal officer, board member, agent, volunteer, or employee in order to carry out this provision. The department shall notify the medical treatment center in writing of the purpose for denying the registry identification card. The department may grant such person a registry identification card if the department determines that the offense was for conduct that occurred prior to the enactment of this act or that was prosecuted by an authority other than the commonwealth of Massachusetts and for which this act would otherwise have prevented a conviction.
(8) A registration identification card of a principal officer, board member, agent, volunteer, or employee shall expire one year after its issuance, or upon the expiration of the registered organization's registration certificate, whichever occurs first.
(d) Expiration or termination of medical treatment center registration.
(1) A medical treatment center's registration shall expire two (2) years after its registration certificate is issued. The medical treatment center may submit a renewal application beginning sixty (60) days prior to the expiration of its registration certificate.
(2) The department shall grant a medical treatment center's renewal application within thirty
(30) days of its submission if the following conditions are all satisfied:
(i) The medical treatment center submits the materials required under Chapter 94 E, Section 6 (c)(4), including a five thousand dollar ($5,000) fee, which shall be refunded within 30 days if the renewal application is rejected;
(ii) The department has not ever suspended the medical treatment center's registration for violations of this act or regulations issued pursuant to it;
(iii) The legislative oversight committee's report, issued pursuant to Chapter 94 E, Section 6 (j), indicates that the medical treatment center is adequately providing patients with access to medical marijuana at reasonable rates; and
(iv) The legislative oversight committee's report, issued pursuant to Chapter 94 E, Section 6 (j), does not raise serious concerns about the continued operation of the medical treatment center applying for renewal.
(3) If the department determines that any of the conditions listed in Chapter 94 E, Sections 6 (d)(2)(i) – (iv) do not exist, the department shall begin an open application process for the operation of a medical treatment center. In granting a new registration certificate, the department shall consider factors listed in Chapter 94 E, Section 6 (c)(3).
(4) The department shall issue a medical treatment center one or more thirty (30) day temporary registration certificates after that medical treatment center's registration would otherwise expire if the following conditions are all satisfied:
(i) The medical treatment center previously applied for a renewal, but the department had not yet come to a decision;
(ii) The medical treatment center requested a temporary registration certificate; and
(iii) The medical treatment center has not had its registration certificate revoked due to violations of this act or regulations issued pursuant to this act.
(e) Inspection. Medical treatment centers are subject to reasonable inspection by the department. The department shall give reasonable notice of an inspection under this subsection. During an inspection, the department may review the medical treatment center’s confidential records, including its dispensing records, which may track transactions according to qualifying patients’ registry identification numbers to protect their confidentiality.
(f) Medical treatment center requirements.
(1) A medical treatment center shall be operated on a not-for-profit basis for the mutual benefit of patients who are allowed to use marijuana for medical purposes. A medical treatment center need not be recognized as a tax-exempt organization by the Internal Revenue Service.
(2) A medical treatment center may not be located within five hundred (500) feet of the property line of a preexisting public or private school.
(3) A medical treatment center shall notify the department within ten (10) days of when a principal officer, board member, agent, volunteer, or employee ceases to be associated with and/or work at the medical treatment center. His or her card shall be deemed null and void and the person shall be liable for any other penalties that may apply to the person's nonmedical use of marijuana.
(4) A medical treatment center shall notify the department in writing of the name, address, and date of birth of any new principal officer, board member, agent, volunteer, or employee and shall submit a fee in an amount established by the department for a new registry identification card before a new agent or employee begins working at the medical treatment center.
(5) A medical treatment center shall implement appropriate security measures to prevent the theft of marijuana and the unauthorized entrance into areas containing marijuana, and shall ensure that each location has an operational security alarm system.
(6) The operating documents of a medical treatment center shall include procedures for the oversight of the medical treatment center and procedures to ensure accurate record keeping.
(7) A medical treatment center is prohibited from acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, selling, and/or dispensing marijuana for any purpose except to assist patients who are allowed to use marijuana pursuant to this chapter with the medical use of marijuana directly or through the qualifying patients' other primary caregiver.
(8) Each time a new registered qualifying patient visits a medical treatment center, it shall provide the patient with frequently asked questions designed by the department, which explains the limitations on the right to use medical marijuana under state law.
(9) Each medical treatment center shall develop, implement, and maintain on the premises employee and agent policies and procedures to address the following requirements:
(i) 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; and
(ii) Training in and adherence to Massachusetts confidentiality laws.
(10) Each medical treatment center shall maintain a personnel record for each employee and each volunteer that includes an application for employment or to volunteer and a record of any disciplinary action taken; and
(11) Each medical treatment center shall develop, implement, and maintain on the premises on-site training curricula, or enter into contractual relationships with outside resources capable of meeting employee training needs, which includes, but is not limited to, the following topics:
(a) Professional conduct, ethics, and patient confidentiality; and
(b) Informational developments in the field of the medical use of marijuana.
(12) Each medical treatment center entity shall provide each employee and each volunteer, at the time of his or her initial appointment, training in the following:
(i) The proper use of security measures and controls that have been adopted; and
(ii) Specific procedural instructions on how to respond to an emergency, including robbery or violent accident.
(13) All medical 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 medical treatment center shall maintain documentation of an employee's and a volunteer’s training for a period of at least six (6) months after termination of an employee's employment or the volunteer’s volunteering.
(g) Maximum amount of usable marijuana to be dispensed.
(1) A medical treatment center or principal officer, board member, agent, volunteer, or employee of a medical treatment center may not dispense more than four (4) ounces of usable marijuana to a qualifying patient directly or through the patient’s other primary caregiver during a fifteen (15) day period.
(2) A medical treatment center or principal officer, board member, agent, or employee of a medical treatment center may not dispense an amount of usable marijuana or marijuana plants to a qualifying patient or a primary caregiver that the medical treatment center, principal officer, board member, agent, volunteer, or employee knows would cause the recipient to possess more marijuana than is permitted under this chapter.
(h) Immunity.
(1) No registered medical treatment center shall be subject to prosecution; search, except by the department pursuant to Chapter 94 E, Section 6 (e); seizure; or penalty in any manner or denied any right or privilege including, but not limited to, civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity solely for acting in accordance with this section to assist registered qualifying patients to whom it is connected through the department's registration process with the medical use of marijuana.
(2) No principal officers, board members, agents, volunteers, or employees of a registered medical treatment center shall be subject to arrest, prosecution, search, seizure, or penalty in any manner or denied any right or privilege including, but not limited to, civil penalty or disciplinary action by a business, occupational, or professional licensing board or entity solely for working for or with a medical treatment center to engage in acts permitted by this chapter.
(i) Prohibitions.
(1) (a) A medical treatment center may not possess an amount of marijuana that exceeds whichever of the following quantities is greater: (i) 96 marijuana plants and 32 ounces of useable marijuana; or (ii) 12 plants and 4 ounces of usable marijuana for each registered qualifying patient who has designated the medical treatment center to provide him or her with marijuana for medical use. However, if a registered qualifying patient who designated the medical treatment center ceases to be a registered qualifying patient or ceases to designate the medical treatment center, the medical treatment center shall have10 days after the notification to lawfully dispose of or destroy any excess plants or marijuana.
(b) A medical treatment center may also possess marijuana seeds, stalks, and unusable roots.
(2) A medical treatment center may not dispense, deliver, or otherwise transfer marijuana to a person other than a qualifying patient who has designated the medical treatment center as a primary caregiver or to such patient's primary caregiver.
(3) A person found to have violated paragraph (2) of this subsection may not be an employee, volunteer, agent, principal officer, or board member of any medical treatment center, and such person's registry identification card shall be immediately revoked.
(4) No person who has been convicted of a felony drug offense may be the principal officer, board member, agent, volunteer, or employee of a medical treatment center unless the department has determined that the person's conviction was for the medical use of marijuana or assisting with the medical use of marijuana and has issued the person a registry identification card as provided under Chapter 94 E, Section 6 (c)(7). A person who is employed by or is an agent, volunteer, principal officer, or board member of a medical treatment center in violation of this section is guilty of a civil violation punishable by a fine of up to one thousand dollars ($1,000). A subsequent violation of this section is a gross misdemeanor.
(5) All cultivation of marijuana must take place in an enclosed, locked facility, which can only be accessed by principal officers, board members, agents, volunteers, or employees of the registered medical treatment center who are cardholders.
(j) Legislative oversight committee.
(1) The General Court shall appoint a ten (10) member oversight committee comprised of: one member of the House of Representatives; one member of the Senate; one physician to be selected from a list provided by the Massachusetts Medical Society; one nurse to be selected from a list provided by the Massachusetts State Nurses Association; three (3) registered qualifying patients; one registered primary caregiver; one patient advocate; and one representative of the law enforcement community.
(2) The oversight committee shall meet at least three (3) times per year for the purpose of evaluating and making recommendations to the General Court regarding:
(i) Patients' access to medical marijuana,
(ii) The efficacy of each registered medical treatment center, and medical treatment centers as a whole, including the reasonableness of pricing and patients’ feedback on the quality of the marijuana;
(iii) Physician participation in the Medical Marijuana Program;
(iv) The definition of qualifying debilitating medical conditions; and
(v) Research studies regarding health effects of medical marijuana for patients.
(3) On or before January of every even-numbered year, the oversight committee shall report to the general court and the department on its findings.
Chapter 94E Section 7. Scope of chapter.
Section 7. (a) This chapter shall not permit:
(1) Any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice;
(2) The smoking of marijuana:
(i) In a school bus or other form of public transportation;
(ii) On any school grounds;
(iii) In any correctional facility;
(iv) In any public place; or
(v) In any licensed drug treatment facility in this state.
(3) Any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marijuana. However, a registered qualifying patient shall not be considered to be under the influence solely for having marijuana metabolites in his or her system.
(b) Nothing in this chapter shall be construed to require:
(1) A government medical assistance program or private health insurer to reimburse a person for costs associated with the medical use of marijuana; or
(2) An employer to accommodate the medical use of marijuana in any workplace.
(c) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marijuana to avoid arrest or prosecution shall be punishable by a fine of five hundred dollars ($500) which shall be in addition to any other penalties that may apply for making a false statement for the non-medical use of marijuana.
Chapter 94E Section 8. Affirmative defense and dismissal.
Section 8. (a) Except as provided in section 7, a qualifying patient and the qualifying patient's primary caregiver, if any, may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana, and such defense shall be presumed valid where the evidence shows that:
(1) The qualifying patient's practitioner has stated that, in the practitioner's professional opinion, after having completed a full assessment of the person's medical history and current medical condition made in the course of a bona fide practitioner patient relationship, the potential benefits of using marijuana for medical purposes would likely outweigh the health risks for the qualifying patient; and
(2) The person and the person's primary caregiver, if any, were collectively in possession of a quantity of marijuana that was not more than what is reasonably necessary to ensure the uninterrupted availability of marijuana for the purpose of alleviating the person's medical condition or symptoms associated with the medical condition.
(b) A person may assert the medical purpose for using marijuana in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the defendant shows the elements listed in Chapter 94 E, Section 6 (a).
(c) Any interest in or right to property that was possessed, owned, or used in connection with a person's use of marijuana for medical purposes shall not be forfeited if the person or the person's primary caregiver demonstrates the person's medical purpose for using marijuana pursuant to this section.
Chapter 94E Section 9. Enforcement.
Section 9. (a) If the department fails to adopt regulations to implement this chapter within one hundred twenty (120) days of the effective date of this act, a qualifying patient may commence an action in a court of competent jurisdiction to compel the department to perform the actions mandated pursuant to the provisions of this chapter.
(b) If the department fails to issue a valid registry identification card in response to a valid application submitted pursuant to this chapter within thirty-five (35) days of its submission, the registry identification card shall be deemed granted and a copy of the registry identification application shall be deemed valid registry identification card.
Chapter 94E Section 10. Severability.
Section 10. Any section of this act being held invalid as to any person or circumstances shall not affect the application of any other section of this act that can be given full effect without the invalid section or application.
