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SB1682 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1682
 
                               2013-2014 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced  by  Sens.  MONTGOMERY,  KRUEGER,  SAMPSON  -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Health
 
        AN  ACT  to  amend  the public health law, in relation to medical use of
          marihuana
 

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative findings and intent. The legislature finds that
     2  thousands  of  New  Yorkers  have serious medical conditions that can be
     3  improved by medically-approved use of  marihuana.  The  law  should  not
     4  stand  between  them  and  life  and health-sustaining treatment under a
     5  practitioner's supervision.  Many controlled substances that  are  legal
     6  for  medical  use (such as morphine and steroids) are otherwise illegal.
     7  This legislation follows  the  well-established  public  policy  that  a
     8  controlled substance can have a legitimate medical use.  The purposes of
     9  article  33  of  the  public  health  law are to allow legitimate use of
    10  controlled substances in health care, including palliative care; veteri-

    11  nary care; research and other uses authorized by this article  or  other
    12  law;  under appropriate regulation.  This policy and this legislation do
    13  not in any way diminish New York state's strong public policy  and  laws
    14  against illegal drug use.
    15    It is the legislative intent that this act be implemented consistently
    16  with  these  findings  and principles, through a reasonable and workable
    17  system with appropriate oversight, evaluation and continuing research.
    18    § 2. Article 33 of the public health law is amended by  adding  a  new
    19  title V-A to read as follows:
 
    20                                  TITLE V-A
    21                          MEDICAL USE OF MARIHUANA
    22  Section 3360. Definitions.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

                                                                   LBD05429-01-3

        S. 1682                             2
 
     1          3361. Certification of patients.
     2          3362. Possession and sale.
     3          3363. Registered organizations.
     4          3364. Registering of registered organizations.
     5          3365. Reports by practitioners.
     6          3366. Evaluation; research programs; report by department.
     7          3367. Applicability of other provisions of this article.
     8    §  3360. Definitions. As used in this title, the following terms shall
     9  have the following meanings, unless the context clearly requires  other-
    10  wise:
    11    1. "Caregiver" means a person assisting a certified patient in care or

    12  treatment  of a serious condition who is a health care provider (includ-
    13  ing an employee of a health care provider) or  a  person  designated  in
    14  writing by the certified patient.
    15    2.  "Certified  medical  use"  means the medical use of marihuana by a
    16  certified patient for the serious condition specified in a certification
    17  under section thirty-three hundred sixty-one of this title.
    18    3. "Certified patient" means a patient certified under  section  thir-
    19  ty-three hundred sixty-one of this title.
    20    4.  "Medical  use"  means  use  as  part of the treatment of a serious
    21  condition, including enabling a patient  to  tolerate  treatment  for  a
    22  serious condition.

    23    5. "Public place" means a public place as defined in section 240.00 of
    24  the penal law.
    25    6.  "Registered  organization"  means  a registered organization under
    26  section thirty-three hundred sixty-three of this title.
    27    7. "Serious  condition"  means  a  life-threatening,  degenerative  or
    28  permanently  disabling  condition,  or  a condition associated with or a
    29  complication of such a condition.
    30    § 3361. Certification of patients. 1. A practitioner may certify: that
    31  a patient has a serious condition,  which  shall  be  specified  in  the
    32  certification; that the patient is under the practitioner's care for the
    33  serious  condition;  and  that, in the practitioner's professional judg-

    34  ment, the serious condition can and should be treated with  the  medical
    35  use  of  marihuana,  and  that other drugs or treatments would not be as
    36  effective.
    37    2. The certification shall be in writing and  include  the  date;  the
    38  name,  address,  federal  registration number, telephone number, and the
    39  handwritten  signature  of   the   certifying   practitioner;   specific
    40  directions  for  use,  including  but  not  limited  to,  the dosage and
    41  frequency of dosage and the maximum daily dosage; the number of renewals
    42  authorized by the practitioner,  provided  that  no  such  authorization
    43  shall  be  effective  for a period greater than six months from the date
    44  the certification is signed; and the name and address  of  the  patient.

    45  The  commissioner may require by regulation that the certification shall
    46  be on a form provided by the  department.  The  certification  shall  be
    47  given  to  the  certified patient or a caregiver for the patient, a copy
    48  shall be sent to the department, and a  copy  shall  be  placed  in  the
    49  patient's health care record.
    50    3. No certification under this section shall be made for a quantity of
    51  marihuana  that  would  exceed  a  thirty  day supply if it were used in
    52  accordance with the directions for use specified on the certification.
    53    4. No practitioner shall issue a certification under this section  for
    54  himself or herself.
    55    § 3362. Possession and sale. 1. Possession. (a) Possession or manufac-

    56  ture of marihuana shall be lawful under this article where it is:

        S. 1682                             3
 
     1    (i) by a certified patient, for his or her certified medical use; or
     2    (ii)  by a caregiver of a certified patient, for the purpose of deliv-
     3  ering or administering it to the certified patient for his or her certi-
     4  fied medical use; or
     5    (iii)  by  a  registered  organization,  for  the  purpose  of  lawful
     6  possession,  sale, administering, delivering, dispensing or distributing
     7  under this title.
     8    (b) Notwithstanding paragraph (a) of this subdivision,  possession  or
     9  manufacture of marihuana shall not be lawful under this title if:
    10    (i) it is consumed or displayed in a public place; or

    11    (ii)  in  the case of possession or manufacture by a certified patient
    12  or caregiver, the aggregate weight of the preparation, compound, mixture
    13  or substance containing marihuana is more than eight  ounces,  excluding
    14  the weight of any food other than marihuana.
    15    2.  Sale.  It  shall be lawful under this article to sell, administer,
    16  deliver, dispense, or distribute marihuana where it is:
    17    (a) by a registered organization, to a certified patient or a caregiv-
    18  er of a certified patient, for a certified medical use;
    19    (b) by any federal, state or local law enforcement agency, to a regis-
    20  tered organization; or
    21    (c) by a caregiver of a certified patient, to the  certified  patient,
    22  for a certified medical use.

    23    §  3363.  Registered organizations. 1. A registered organization shall
    24  be:
    25    (a) a not-for-profit corporation organized for the purpose of lawfully
    26  selling, administering, delivering, dispensing or distributing  marihua-
    27  na;
    28    (b) the department; or
    29    (c) a local health department.
    30    2.  A  registered  organization  shall  not possess, sell, administer,
    31  deliver, dispense or distribute marihuana under this title, except under
    32  a registration under section thirty-three  hundred  sixty-four  of  this
    33  title or a renewal thereof.
    34    3.  A registered organization may, in good faith, sell and dispense to
    35  a certified patient or a caregiver of a certified patient marihuana upon

    36  delivery to the registered organization of a written certification with-
    37  in thirty days of the date the certification was signed by a practition-
    38  er. No registered organization may sell or dispense greater than a thir-
    39  ty day supply of marihuana to a certified patient or a  caregiver  of  a
    40  certified  patient  unless and until the patient has exhausted all but a
    41  seven day supply of marihuana provided pursuant to any previously issued
    42  written certification.
    43    4. A certification may be renewed not more than the  number  of  times
    44  specifically  authorized  by  the  practitioner  upon the certification,
    45  provided, however, that no authorization shall be effective for a period
    46  greater than six months from  the  date  the  certification  is  signed.

    47  Unless an earlier renewing is authorized by the practitioner, no certif-
    48  ication  may  be  renewed  earlier than seven days prior to the date the
    49  previously dispensed supply would be exhausted  if  used  in  conformity
    50  with the directions for use.
    51    5.  Marihuana may be dispensed only if enclosed in a suitable contain-
    52  er, and:
    53    (a) Affixed to such container is  a  label  upon  which  is  indelibly
    54  typed, printed, or otherwise legibly written the following:
    55    (i)  the  name and address of the certified patient for whom the mari-
    56  huana is intended;

        S. 1682                             4
 
     1    (ii) the name, address, and telephone number of the registered  organ-

     2  ization from which such marihuana is dispensed;
     3    (iii) specific directions for use as stated on the certification;
     4    (iv) the name of the practitioner;
     5    (v)  the  legend,  prominently marked or printed in either boldface or
     6  upper case lettering: "CONTROLLED SUBSTANCE, DANGEROUS  UNLESS  USED  AS
     7  DIRECTED";
     8    (b) The container shall be identified as medical marihuana by either:
     9    (i) an orange label;
    10    (ii)  a  label  of  another color over which is superimposed an orange
    11  transparent adhesive tape; or
    12    (iii) an auxiliary orange label affixed to the front of the  container
    13  and  bearing  the  legend,  prominently  marked  or  printed "Controlled
    14  Substance, Dangerous Unless Used As Directed";

    15    (c) Any label, transparency, or auxiliary label shall be applied in  a
    16  manner which would inhibit its removal.
    17    6.  The  department  may  suspend  or  terminate the registration of a
    18  registered organization, on grounds  and  using  procedures  under  this
    19  article relating to a license, to the extent consistent with this title.
    20    §  3364.  Registering  of registered organizations. 1. Application for
    21  initial registration. (a) An applicant for registration as a  registered
    22  organization  under  section  thirty-three  hundred  sixty-three of this
    23  title shall furnish to the department any information it  shall  reason-
    24  ably require and evidence that the applicant:
    25    (i) and its managing officers are of good moral character;

    26    (ii)  possesses  sufficient  land, buildings and equipment to properly
    27  carry on the activity described in the application;
    28    (iii) is able to maintain effective control against diversion  of  the
    29  marihuana; and
    30    (iv)  is able to comply with all applicable state laws and regulations
    31  relating to the manufacture or distribution of marihuana.
    32    (b) The application shall establish the applicant's status under para-
    33  graph (a), (b) or (c) of subdivision one of section thirty-three hundred
    34  sixty-three of this title.
    35    (c) The application shall include  the  name,  residence  address  and
    36  title  of  each of the officers and directors and the name and residence
    37  address of any person or entity that is a member of the applicant.  Each

    38  such person, if an individual, or lawful representative if a legal enti-
    39  ty, shall submit an affidavit with the application setting forth:
    40    (i)  any  position of management or ownership during the preceding ten
    41  years of a ten per centum or greater interest  in  any  other  business,
    42  located in or outside this state, manufacturing or distributing drugs;
    43    (ii)  whether  such  person  or  any such business has been convicted,
    44  fined, censured or had a registration suspended or revoked in any admin-
    45  istrative or judicial proceeding relating to or arising out of the manu-
    46  facture or distribution of drugs; and
    47    (iii) such  other  information  as  the  commissioner  may  reasonably
    48  require.

    49    (d)  The  applicant  shall be under a continuing duty to report to the
    50  department any change in facts or circumstances reflected in the  appli-
    51  cation  or  any newly discovered or occurring fact or circumstance which
    52  is required to be included in the application.
    53    2. Granting of registration. (a) The commissioner shall grant a regis-
    54  tration or amendment to a registration under this section if he  or  she
    55  is satisfied that:

        S. 1682                             5
 
     1    (i)  the  applicant will be able to maintain effective control against
     2  diversion of marihuana;
     3    (ii)  the  applicant  will be able to comply with all applicable state
     4  laws;

     5    (iii) the applicant and its officers are ready, willing  and  able  to
     6  properly carry on the manufacturing or distributing activity for which a
     7  registration is sought;
     8    (iv)  the applicant possesses sufficient land, buildings and equipment
     9  to properly carry on the activity described  in the application;
    10    (v) it is in the public interest that such  registration  be  granted;
    11  and
    12    (vi) the applicant and its managing officers are of good moral charac-
    13  ter.
    14    (b)  If the commissioner is not satisfied that the applicant should be
    15  issued a registration, he or she shall notify the applicant  in  writing
    16  of  those factors upon which further evidence is required. Within thirty

    17  days of the receipt of such notification, the applicant may submit addi-
    18  tional material to the commissioner or demand a hearing or both.
    19    3. Applications for renewal of registrations. (a) An  application  for
    20  the  renewal  of any registration issued under this title shall be filed
    21  with the department not more than six months nor less than  four  months
    22  prior to the expiration thereof.
    23    (b)  The  application  for  renewal  shall  include  such  information
    24  prepared in the manner and  detail  as  the  commissioner  may  require,
    25  including but not limited to:
    26    (i)  any  material  change  in  the circumstances or factors listed in
    27  subdivision one of this section; and

    28    (ii) every known charge or investigation, pending or concluded  during
    29  the  period of the registration, by any governmental agency with respect
    30  to:
    31    (1) each incident or alleged incident involving the  theft,  loss,  or
    32  possible  diversion  of  marihuana  manufactured  or  distributed by the
    33  applicant; and
    34    (2) compliance by the applicant  with  the  laws  of  the  state  with
    35  respect  to  any substance listed in section thirty-three hundred six of
    36  this article.
    37    (c) An applicant for renewal shall  be  under  a  continuing  duty  to
    38  report  to the department any change in facts or circumstances reflected
    39  in the application or any newly discovered or occurring fact or  circum-

    40  stance which is required to be included in the application.
    41    (d)  If  the commissioner is not satisfied that the applicant is enti-
    42  tled to a renewal of the registration, he or she shall within forty-five
    43  days after the filing of the application serve upon the applicant or his
    44  or her attorney of record in person or by registered or  certified  mail
    45  an  order  directing the applicant to show cause why his or her applica-
    46  tion for renewal should not be denied. The order shall specify in detail
    47  the respects in which the applicant has not satisfied  the  commissioner
    48  that the registration should be renewed.
    49    (e)  Within  thirty  days  of service of such order, the applicant may
    50  either submit additional material to the commissioner or demand a  hear-

    51  ing or both. If a hearing is demanded, the commissioner shall fix a date
    52  for  a  hearing  not sooner than fifteen days nor later than thirty days
    53  after receipt of the demand, unless such time limitation  is  waived  by
    54  the applicant.

        S. 1682                             6
 
     1    4.  Granting  of  renewal of registrations. (a) The commissioner shall
     2  renew a registration unless he or she  determines  and  finds  that  the
     3  applicant:
     4    (i)  is  unlikely to maintain or be able to maintain effective control
     5  against diversion; or
     6    (ii) is unlikely to comply with all state laws applicable to the manu-
     7  facture or distribution of marihuana.

     8    (b) For purposes of this section, proof that  a  registered  organiza-
     9  tion,  during  the  period  of  its registration, has failed to maintain
    10  effective control against diversion  or  has  knowingly  or  negligently
    11  failed  to comply with applicable state laws relating to the manufacture
    12  or distribution of marihuana, shall constitute substantial evidence that
    13  the applicant will be unlikely to  maintain  effective  control  against
    14  diversion  or will be unlikely to comply with the applicable state stat-
    15  utes during the period of proposed renewal.
    16    § 3365. Reports by practitioners. The department shall, by regulation,
    17  require each practitioner who makes a certification under this title  to

    18  file reports of each certification, on forms provided by the department,
    19  including  an  initial  report  and  periodic follow-up reports not more
    20  frequently than every ninety days, covering the effective period of  the
    21  certification. Each report shall include the date, effective period, and
    22  specified  condition  of  the certification, the name and address of the
    23  certifying practitioner, and the name and address of the  patient.  Each
    24  follow-up  report  shall  include  a  brief  statement  of the level and
    25  pattern of marihuana use by the patient and  the  effectiveness  of  the
    26  medical use of marihuana for the patient.
    27    §  3366.  Evaluation; research programs; report by department. 1.  The

    28  department may provide for the analysis and evaluation of reports  filed
    29  by practitioners  and registered organizations under this title.
    30    2.  The  department  may  develop, seek any necessary federal approval
    31  for, and carry out research programs relating to medical use of marihua-
    32  na. Participation in any such research program shall be voluntary on the
    33  part of practitioners, patients, and registered organizations.
    34    3. The department shall report every two  years,  beginning  one  year
    35  after  this  title becomes a law, to the governor and the legislature on
    36  the medical use of marihuana  under  this  title  and  make  appropriate
    37  recommendations.
    38    §  3367.  Applicability  of  other  provisions  of  this  article. The

    39  provisions of this article shall apply to this title, except that  where
    40  a provision of this title conflicts with another provision of this arti-
    41  cle, this title shall apply.
    42    §  3.  The commissioner of health shall enter into agreements with one
    43  or more persons, not-for-profit  corporations  or  other  organizations,
    44  other  than a state employee, official or agency, for the performance of
    45  an evaluation of the implementation and effectiveness of the  provisions
    46  of  this  act.  Such evaluation shall include, but not be limited to, an
    47  analysis of the practical operation of this act, the clinical  value  of
    48  medical  use  of  marihuana  under  this act, and the effect (if any) on
    49  illegal use of controlled substances.
    50    § 4. This act shall take effect immediately; provided that the depart-

    51  ment of health shall make regulations and issue forms  provided  for  in
    52  this  act  within  180  days after this act shall have become a law; and
    53  provided that no certification under section 3361 of the  public  health
    54  law,  as  added  by section two of this act, may be made on or after the
    55  thirty-first of December of the fifth year after  this  act  shall  have
    56  become a law.
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