HB0407ham001 94TH GENERAL ASSEMBLY

Human Services Committee

Filed: 3/9/2005

09400HB0407ham001 LRB094 06225 RLC 43243 a

AMENDMENT TO HOUSE BILL 407

AMENDMENT NO. ______. Amend House Bill 407 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Medical Cannabis Act.

Section 5. Findings.

(a) Modern medical research has discovered beneficial uses for cannabis in treating or alleviating the pain, nausea, and other symptoms associated with certain debilitating medical conditions, as found by the National Academy of Sciences' Institute of Medicine in March 1999.

(b) According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, 99 out of every 100 cannabis arrests in the U.S. are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use cannabis.

(c) Although federal law currently prohibits any use of cannabis, the laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont, and Washington permit the medical use and cultivation of cannabis. Illinois joins in this effort for the health and welfare of its citizens.

(d) States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. Therefore, compliance with this Act does not put the state of Illinois in violation of federal law.

(e) State law should make a distinction between the medical and non-medical use of cannabis. Hence, the purpose of this Act is to protect patients with debilitating medical conditions, and their practitioners and primary caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of cannabis.

(f) The people of the State of Illinois declare that they enact this Act pursuant to the police power to protect the health of its citizens that is reserved to the State of Illinois and its people under the Tenth Amendment to the United States Constitution.

Section 10. Definitions. The following terms, as used in this Act, shall have the meanings set forth in this Section:

"Debilitating medical condition" means:

(1) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or Hepatitis C;

(2) a chronic or debilitating disease or medical condition that produces one or more of the following: cachexia or wasting syndrome; severe or chronic 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 and Crohn's disease; agitation of Alzheimer's disease; or

(3) any other medical condition approved by the Department, as provided for in subsection (a) of Section 20.

"Department" means the Department of Human Services.

"Cannabis" has the meaning given that term in Section 3 of the Cannabis Control Act.

"Medical use" means the acquisition, possession, cultivation, manufacture, use, delivery, transfer, or transportation of cannabis or paraphernalia relating to the consumption of cannabis to alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the medical condition.

"Practitioner" means a physician licensed to practice medicine in all its branches, an advanced practice nurse who has a written collaborative agreement with the physician that authorizes the provision of written certifications under this Act, or a physician assistant who has been delegated the authority to provide written certifications under this Act.

"Primary caregiver" means a person who is at least 18 years old and who has agreed to assist with a person's medical use of cannabis. A primary caregiver may assist no more than 5 qualifying patients with their medical use of cannabis.

"Qualifying patient" means a person who has been diagnosed by a practitioner as having a debilitating medical condition.

"Registry identification card" means a document issued by the Department that identifies a person as a qualifying patient or primary caregiver.

"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.

"Written certification" means the qualifying patient's medical records, or a statement signed by a practitioner, stating that in the practitioner's professional opinion the potential benefits of the medical use of cannabis would likely outweigh the health risks for the qualifying patient. A written certification shall only be made 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.

Section 15. Protections for the medical use of cannabis.

(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 cannabis, provided that the qualifying patient possesses an amount of cannabis that does not exceed 12 cannabis plants and two and one-half ounces of usable cannabis.

(b) A primary caregiver who has in his or her possession a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the Department's registration process with the medical use of cannabis, provided that the primary caregiver possesses an amount of cannabis that does not exceed 12 cannabis plants and two and one-half ounces of usable cannabis for each qualifying patient to whom he or she is connected through the Department's registration process.

(c) No school, employer, or landlord may refuse to enroll, employ, lease to, or otherwise penalize a person solely for his or her status as a registered qualifying patient or a registered primary caregiver.

(d) There shall exist a presumption that a qualifying patient or primary caregiver is engaged in the medical use of cannabis 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 cannabis that does not exceed the amount permitted under this Act. Such presumption may be rebutted by evidence that conduct related to cannabis 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 with a registered qualifying patient's medical use of cannabis. 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 Medical Disciplinary Board or by a 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 cannabis would likely outweigh the health risks for a patient.

Any interest in or right to property that is possessed, owned, or used in connection with the medical use of cannabis, or acts incidental to such use, shall not be forfeited.

(g) 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 cannabis as permitted under this Act or for assisting a registered qualifying patient with using or administering cannabis.

(h) A registry identification card, or its equivalent, issued under the laws of another state, U.S. territory, or the District of Columbia to permit the medical use of cannabis by a qualifying patient, or to permit a person to assist with a qualifying patient's medical use of cannabis, shall have the same force and effect as a registry identification card issued by the Department.

Section 20. Department to adopt rules.

(a) Not later than 90 days after the effective date of this Act, the Department shall adopt rules governing the manner in which it shall consider petitions from the public to add debilitating medical conditions to those included in this Act. In considering such petitions, the Department shall include public notice of, and an opportunity to comment in a public hearing upon, such petitions. The Department shall, after hearing, approve or deny such petitions within 180 days after 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 circuit court. The denial of a petition shall not disqualify qualifying patients with that condition if they have a 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 90 days after the effective date of this Act, the Department shall adopt rules 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 rules shall establish application and renewal fees that generate revenues sufficient to offset all expenses of implementing and administering this Act. The Department may vary the application and renewal fees along a sliding scale that accounts for a qualifying patient's income. The Department may accept donations from private sources in order to reduce the application and renewal fees.

Section 25. Administering the Department's rules.

(a) The Department shall issue registry identification cards to qualifying patients who submit the following, in accordance with the Department's rules:

(1) written certification;

(2) application or renewal fee;

(3) name, address, and date of birth of the qualifying patient, except that if the applicant 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 qualifying patient, if any.

(b) The Department shall not issue a registry identification card to a qualifying patient under the age of 18 unless:

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

(A) allow the qualifying patient's medical use of cannabis;

(B) serve as one of the qualifying patient's primary caregivers; and

(C) control the acquisition of the cannabis, the dosage, and the frequency of the medical use of cannabis 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 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 under the Administrative Review Law. Jurisdiction and venue for judicial review are vested in the circuit 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 2 primary caregivers per qualifying patient.

(e) The Department shall issue registry identification cards within 5 days of approving an application or renewal, which shall expire one year after the date of issuance. Registry identification cards shall contain:

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

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

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

(4) a unique random registry identification number; and

(5) a photograph taken by the Department or in the presence of the practitioner in a manner determined by the Department.

(f)(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 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 $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 cannabis.

(3) A registered primary caregiver shall notify the Department of any change in his or her name or address within 10 days of such change. A primary caregiver 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 $150.

(4) When a qualifying patient or primary caregiver notifies the Department of any changes listed in this subsection (f), the Department shall issue the registered qualifying patient and each primary caregiver a new registry identification card within 10 days of receiving the updated information and a $10 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 10 days. The primary caregiver's protections as provided in this Act shall expire 10 days after notification by the Department.

(6) If a registered qualifying patient or a primary caregiver loses his or her registry identification card, he or she shall notify the Department and submit a $10 fee within 10 days of losing the card. Within 5 days, the Department shall issue a new registry identification card with a new random identification number.

(g) Possession of, or application for, a registry identification card does not constitute probable cause or reasonable suspicion, nor may 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 and when applicable, the AIDS Confidentiality Act.

(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 Freedom of Information Act, and not subject to disclosure, except to authorized employees of the Department as necessary to perform official duties of the Department.

(3) The Department shall make available to law enforcement personnel a secure website whereby law enforcement can determine whether a registry identification card is valid solely by entering the random identification number. The secure website shall return data as it appears on the registry identification card, which includes the digital photo used on the card, name, address, and date of birth.

(4) It is a Class B misdemeanor 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 Act. Notwithstanding this provision, the Department employees may notify law enforcement about falsified or fraudulent information submitted to the Department.

(i) The Department shall report annually to the General Assembly on 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. The Department shall not provide any identifying information of qualifying patients, primary caregivers, or practitioners.

Section 30. Scope of Act.

(a) This Act does not permit:

(1) any person to undertake any task under the influence of cannabis, when doing so would constitute negligence or professional malpractice;

(2) the smoking of cannabis:

(A) in a school bus or other form of public transportation;

(B) on any school grounds;

(C) in any correctional facility; or

(D) in any public place; and

(3) any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of cannabis. However, a registered qualifying patient may not be considered to be under the influence solely for having cannabis metabolites in his or her system.

(b) Nothing in this Act 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 cannabis; or

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

(c) Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of cannabis to avoid arrest or prosecution is a petty offense punishable by a fine of $500, in addition to any other penalties that may apply for making a false statement and for the non-medical use of cannabis.

Section 35. Affirmative defense and dismissal for medical cannabis.

(a) Except as provided in Section 30, a person and a person's primary caregiver, if any, may assert the medical purpose for using cannabis as a defense to any prosecution involving cannabis, and such defense shall be presumed valid where the evidence shows that:

(1) the person's medical records indicate, or a 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 cannabis for medical purposes would likely outweigh the health risks for the person; and

(2) the person and the person's primary caregiver, if any, were collectively in possession of a quantity of cannabis that was not more than was reasonably necessary to ensure the uninterrupted availability of cannabis 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 cannabis in a motion to dismiss, and the charges shall be dismissed following an evidentiary hearing where the defendant shows the elements listed in subsection (a) of this Section.

(c) Any interest in or right to property that was possessed, owned, or used in connection with a person's use of cannabis for medical purposes shall not be forfeited if the person or the person's primary caregiver demonstrates the person's medical purpose for using cannabis pursuant to this Section.

Section 40. Enforcement of this Act.

(a) Within 30 days after the effective date of this Act, the Department shall adopt emergency rules to implement this Act. Within 6 months after the effective date of this Act, a task force consisting of the Directors or their designees of the Departments of Public Health and State Police and the Secretary of Human Services or his or her designee; 2 members of the House of Representatives appointed by the Speaker of the House of Representatives; 2 members of the Senate appointed by the President of the Senate; one member of the House of Representatives appointed by the House Minority Leader; and one member of the Senate appointed by the Senate Minority Leader shall act to implement permanent rules. In addition the Speaker and the President shall appoint one person each involved in patient services or advocacy. If the Department fails to adopt rules to implement this Act within 240 days after 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 Act.

(b) If the Department fails to issue a valid registry identification card in response to a valid application submitted pursuant to this Act within 20 days of its submission, the registry identification card shall be deemed granted and a copy of the registry identification application shall be deemed a valid registry identification card.

Section 45. Non-profit dispensaries.

(a) "Registered organization" means a non-profit entity registered with the State under this Act that acquires, possesses, cultivates, manufactures, delivers, transfers, transports, supplies, or dispenses cannabis, cultivation equipment, related supplies and educational materials, or cannabis seeds to registered qualifying patients and their primary caregivers. A registered organization is a primary caregiver, although it may supply cannabis to any number of registered qualifying patients who have designated it as one of their primary caregivers.

(b)(1) The Department shall issue a registered organization license within 20 days to any person who complies with Department rules and provides the following:

(A) a fee paid to the Department in the amount established by the Department, which shall not exceed $1,000;

(B) the name of the registered organization;

(C) the physical addresses of the registered organization and any other real property where cannabis is to be possessed, cultivated, manufactured, supplied, or dispensed relating to the operations of the registered organization; and

(D) the name, address, date of birth, and photograph of any person who is an agent of or employed by the registered organization.

(2) The Department shall issue each agent and employee of a registered organization a registry identification card for a cost of $10 each within 10 days of receipt of the person's identifying information and the fee. Each card shall specify that the cardholder is an employee or agent of a registered organization.

(3) Each license for a registered organization and each employee or agent registry identification card shall expire one year after the date of issuance.

(4) Not later than 90 days after the effective date of this Act, the Department shall promulgate rules to implement this Section, including the following:

(A) procedures for the oversight of registered organizations, record-keeping and reporting requirements for registered organizations, the potential transference or sale of seized cultivation equipment and related supplies from law enforcement agencies to registered organizations, and procedures for suspending or terminating the registration of registered organizations; and

(B) the form and content of the registration and renewal applications.

(c) Registered organizations shall be subject to reasonable inspection by the Department to determine that applicable rules are being followed. Reasonable notice shall be given prior to these inspections.

(d) (1) Registered organizations shall be established as nonprofit entities. They shall be subject to all applicable State laws governing nonprofit entities, but need not be recognized as a 501(c)(3) organization by the Internal Revenue Service;

(2) Registered organizations may not be located within 500 feet of the property line of a public school, private school, or structure used primarily for religious services or worship.

(3) The operating documents of a registered organization shall include procedures for the oversight of the registered organization and procedures to ensure adequate record-keeping.

(e)(1) A registered organization shall notify the Department within 10 days of when an employee or agent ceases to work at the registered organization.

(2) The registered organization shall notify the Department before a new agent or employee begins working at the registered organization, in writing, and it shall submit a $10 fee for that person's registry identification card.

(f)(1) No registered organization shall be subject to 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 or occupational or professional licensing board or bureau for acting in accordance with this Act and the rules issued pursuant to this Act to assist registered qualifying patients to whom it is connected through the Department's registration process with the medical use of cannabis, provided that the registered organization possesses an amount of cannabis which does not exceed 12 cannabis plants and two and one-half ounces of usable cannabis for each registered qualifying patient.

(2) No employees, agents, or board members of a registered organization 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 or occupational or professional licensing board or bureau for working for a registered organization in accordance with this Act.

(3) Applications and supporting information submitted by registered organizations, including licenses and information regarding their patients, primary caregivers, agents and employees of the organization are confidential and when applicable protected under the federal Health Insurance Portability and Accountability Act of 1996 and the AIDS Confidentiality Act.

(g) The registered organization is prohibited from:

(1) obtaining cannabis from outside the State in violation of federal law;

(2) acquiring, possessing, cultivating, manufacturing, delivering, transferring, transporting, supplying, or dispensing cannabis for any purpose except to assist registered qualifying patients with their medical use of cannabis directly or through the qualifying patients' other primary caregivers.

(h) Except as provided in this Act, a municipality may not prevent a registered organization from operating in accordance with this Act in an area where zoning permits retail businesses. This subsection (h) is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(i) If provisions of this Act establishing registered organization are enjoined or declared unconstitutional, then enforcing laws against delivery of cannabis for consideration to registered qualifying patients shall be the lowest priority of law enforcement.

Section 50. Application. In the event of a conflict between this Act and the Cannabis Control Act, the provisions of this Act shall control.

Section 105. The Cannabis Control Act is amended by changing Section 11 as follows:

(720 ILCS 550/11) (from Ch. 56 1/2, par. 711)

Sec. 11. Authorization for use of cannabis for medical purposes.

The Department may authorize the possession, production, manufacture, and delivery of substances containing cannabis in accordance with the Medical Cannabis Act. (a) The Department, with the written approval of the Department of State Police, may authorize the possession, production, manufacture and delivery of substances containing cannabis by persons engaged in research and when such authorization is requested by a physician licensed to practice medicine in all its branches, such authorization shall issue without unnecessary delay where the Department finds that such physician licensed to practice medicine in all its branches has certified that such possession, production, manufacture or delivery of such substance is necessary for the treatment of glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure certified to be medically necessary; such authorization shall be, upon such terms and conditions as may be consistent with the public health and safety. To the extent of the applicable authorization, persons are exempt from prosecution in this State for possession, production, manufacture or delivery of cannabis.

(b) Persons registered under Federal law to conduct research with cannabis may conduct research with cannabis including, but not limited to treatment by a physician licensed to practice medicine in all its branches for glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure which is medically necessary within this State upon furnishing evidence of that Federal registration and notification of the scope and purpose of such research to the Department and to the Department of State Police of that Federal registration.

(c) Persons authorized to engage in research may be authorized by the Department to protect the privacy of individuals who are the subjects of such research by withholding from all persons not connected with the conduct of the research the names and other identifying characteristics of such individuals. Persons who are given this authorization shall not be compelled in any civil, criminal, administrative, legislative or other proceeding to identify the individuals who are the subjects of research for which the authorization was granted, except to the extent necessary to permit the Department to determine whether the research is being conducted in accordance with the authorization.

(Source: P.A. 84-25.)

Section 110. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 999. Effective date. This Act takes effect upon becoming law.".