Proposed Department Rules and some commentary. Please consider making some input on these.
From: Greg Schmid (medcannabis@gmail.com)
Sent: Fri 12/12/08 2:36 AM
To:
lawfirmassistant@gmail.com
Thanks for your continued interest in
www.QualifyingPatient.com
We're not from the government....we're here to help!
Government Agency Rule making process underway.
Written comments on these proposed rules may be sent to: Department of Community Health Bureau of Health Professions Lansing, MI 48909-8170 Attention: Desmond Mitchell, Departmental Analyst E-mail address:
dmitch@michigan.gov
I might suggest you filter any comments through me first. Also, Greg Francisco has authored an excellent set of tips for making effective comments that will push this process in a positive way. These are at the bottom of the page. Lets work through these incomplete and somewhat dangerous rules, and make a unified response. Remember, these aggressive rules are being written to bait angry responses. Don't take that bait. What we need are "boots on the ground" reality check comments, well reasoned and objectively clear, without any overt posturing.
Some bad things this over reaching set of rules does:
*It also provides for an ID card for the grow location, which
Michigan law does not provide for. In Michigan, the cards are for
human beings (though it may be wise of them to keep a copy of their
card with their plants). Patients and caregivers should not have to
provide the grow location. (Rule 333.113 (4) [this is likely
from OR's regulations; grow sites are required to be
registered under OR law.]
*It indicates all marijuana must be kept in an enclosed locked
facility, when that restriction only applies to plants. (Rule 333.123
(2) (g)) This is something they don't even require of people with
prescription morphine, oxycontin, or methamphetamine.
*The draft rules would require that a minor's two physicians who
sign their certification to practice independently of one another,
though the law includes no such restriction. (Rule 333.103 (1) (c))
Other comments are interspersed in red throughout the text. These quick comments only scratch the surface.
The public hearing will be:
Monday, January 5, 2009, at 9:00 a.m. at the State Secondary Complex, General Office Building, 7150 Harris Drive, Conference Room A, Lansing, Michigan.
DEPARTMENT OF COMMUNITY HEALTH DIRECTOR'S OFFICE
MICHIGAN MEDICAL MARIHUANA
GENERAL RULES
DRAFT: 12-5-08
Filed with the Secretary of State on_______
These rules become effective on April 4, 2009.
(By authority conferred on the director of the department of community health by section 5 of initiated law 1 of 2008, MCL 333.26421 and executive reorganization order numbers 1996-1, 1996-2 and 2003-1, MCL 330.3101, MCL 445.2001 and MCL 445.2011)
R 333.101, R 333.103, R333.105, R 333.107, R 333.109, R 333.111, R 333.113, R 333.115, R 333.117, R 333.119, R 333.121, R 333.123, R 333.123, R 333.125, R 333.127, R 333.129, R 333.131, and R 333.133 are added to the Administrative Code.
R 333.101 Definitions.
Rule 1. As used in these rules:
(1) "Act" means the Michigan medical marihuana act, Initiated Law 1 of 2008, MCL 333.26421.
(2) "Applicant" means a qualifying patient applying for a medical marihuana registry identification card on a form provided by the department of community health.
(3) "Code" means 1978 PA 368, MCL 333.1101.
(4) "Conviction" or "convicted" means a criminal conviction of an offense by a guilty verdict from a judge or jury, plea of guilty, or plea of no contest.
(5) "Debilitating medical condition" means 1 or more of the following:
(a) 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.
(b) A chronic or debilitating disease or medical condition or its treatment that produces, for a specific patient, 1 or more of the following: cachexia or wasting syndrome; severe and 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.
(c) Any other medical condition or treatment for a medical condition approved by the department pursuant to a petition submitted under R 333.133.
(6) "Department" means the department of community health.
(7) "Enclosed, locked facility" means a closet, room, or other enclosed area equipped with locks or other security devices that permit access only by a registered primary caregiver or registered qualifying patient.
(8) "Marihuana" means that term as defined in section 7106 of the code.
(9) "Medicaid health plan" means the medical assistance program managed by the department.
(10) "Medical use" means the acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition. As used in this rule, transfer is limited to the exchange of marihuana and paraphernalia between qualifying patient and primary caregiver.
(11) "Paraphernalia" means any equipment, product, or material of any kind that is primarily intended or designed for use in manufacturing, compounding, converting, producing, processing, preparing, inhaling, or otherwise introducing marihuana into the human body, including but not limited to, metal, wooden, acrylic, glass, stone, plastic, paper, or ceramic pipes with or without screens, permanent screens, or punctured metal bowls; water pipes; roach clips, meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; bongs; ice pipes or chillers.
(12) "Parent or legal guardian" means the custodial parent or legal guardian with responsibility for health care decisions for a qualifying patient who is under 18 years of age.
(13) "Petition" means a written request for the department to add new medical conditions or treatments to the list of debilitating medical conditions under R 333.101(5).
(14) "Physician" means an individual licensed as a physician under part 170 or 175 of the code. For purposes of this act, neither a physician assistant nor a nurse practitioner is authorized to sign the statement attesting to the patient's debilitating medical condition.
(15) "Possession" means an individual exercising control over something to the exclusion of all others and to which the individual may have immediate or remote access.
(16) "Primary caregiver" means a person who is at least 21 years old and who has agreed to assist with a patient's medical use of marihuana and who has never been convicted of a felony involving illegal drugs.
(17) "Public place" means a place open or visible to the public.
(18) "Qualifying patient" means a person who has been diagnosed by a physician as having a debilitating medical condition.
(19) "Qualifying patient's representative" means an individual who has been granted durable power of attorney or appointed as the legal guardian for a qualifying patient and whose purpose includes making medical decisions on behalf of the patient.
(20) "Registry identification card" means a document issued by the department that identifies a person as a registered qualifying patient or registered primary caregiver.
(21) "Supplemental Security Income " means the monthly benefit assistance program administered by the federal government for persons who are age 65 or older, or blind, or disabled and who have limited income and financial resources.
(22) "Usable marihuana" means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant.
(23) "Visiting qualifying patient" means a patient who is not a resident of this state or who has been a resident of this state for less than 30 calendar days.
(24) "Written certification" means a document signed by a physician in good standing with the department, stating the patient's debilitating medical condition and stating that, in the physician's professional opinion, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's debilitating medical condition or symptoms associated with the debilitating medical condition.
(25) Terms defined in the act have the same meanings when used in these rules.
R 333.103 New registration application; qualifying patient and primary caregiver.
Rule 3. (1) A qualifying patient shall apply for a registry identification card and, in addition to meeting the requirements of the act and the administrative rules promulgated under the act, shall comply with all of the following:
(a) Submit a completed application on a form provided by the department, together with the requisite fee. The completed application shall include all of the following:
(i) Name, address, and date of birth of the qualifying patient. The address for the qualifying patient shall be a physical address located in this state. A qualifying patient who is homeless shall not be required to provide a physical address.
(ii) Name, address, and telephone number of the qualifying patient's physician.
(iii) The name, address, and date of birth of the patient's primary caregiver, if applicable. A qualifying patient may designate 1 primary caregiver to assist with his or her medical use of marihuana.
(iv) A designation of whether the qualifying patient or the patient's primary caregiver, if applicable, will be allowed to possess marihuana plants for the qualifying patient's medical use.
(v) The names of any other individuals for whom the patient's primary caregiver also serves as a primary caregiver.
(vi) An attestation by the primary caregiver named on the application that he or she agrees to serve as the patient's primary caregiver.
(vii) Information related to the criminal history of the qualifying patient's primary caregiver. A primary caregiver shall authorize the department to use the information provided on the application to secure his or her criminal conviction history to ascertain compliance with section 3(g) of the act.
(b) Submit photographic identification of both the qualifying patient and the patient's primary caregiver, if applicable. The following shall be considered acceptable forms of identification: (this should specify copies only, and follow HAVA standards)
(i) Current driver's license or identification card, with photo, issued by a state.
(ii) Identification card with photo issued by a federal, state, or government agency.
(iii) Current military identification card.
(iv) Current passport.
(v) Current student identification card with photo.
(vi) Native American tribal identification with photo
(vii) Permanent resident card or alien registration receipt card.
(c) Submit a written certification, as defined in R 333.101(24), signed by a physician in good standing with the department. If the patient is a minor or has a representative as defined in R 333.101(19) of these rules, written certifications from 2 physicians, who practice independently of each other, are required
(d) If the qualifying patient is a minor or has a patient representative as defined in R 333.101(19), submit a declaration of person responsible form.
Draft rule 333.103 (1)(a) (v) (vii) would require the patient to
submit the list of patients the caregiver is assisting as well as,
"Information related to the criminal history of the qualifying
patient's primary caregiver. ... "
There is no reason for a caregiver to have to tell the patient what
other patients he/she serves. The caregiver can only serve 5 patients,
but the dept can check how many patients the caregiver serves in their
database and need not get the information in a new patient's
application. Only felony drug convictions disqualify caregivers, so
this should be clear that they only have to submit information about felony drug convictions.
R 333.105 Declaration of person responsible form.
Rule 5. A declaration of person responsible form is required for any qualifying patient who is a minor or who has a patient representative as defined in R 333.101(19). The form shall include, but not be limited to, all of the following:
(a) A statement that the qualifying patient's physician has explained to the patient and the patient's parent, legal guardian, or representative the potential risks and benefits of the medical use of marijuana.
(b) Consent of the qualifying patient's parent, legal guardian, or representative to allow the qualifying patient's medical use of marijuana.
(c) If the qualifying patient is a minor, consent of the patient's parent or legal guardian to serve as the patient's primary caregiver and to control the acquisition, dosage, and frequency of use of the marihuana by the patient.
(d) If the qualifying patient is over 18 years of age and has a patient representative, a statement of whether the patient, patient representative, or patient's primary caregiver will control the acquisition, dosage, and frequency of use of the marihuana by the patient.
R 333.107 Incomplete application.
Rule 7. (1) If an applicant fails to provide the information required under R 333.103 or R 333.105, as applicable, and the application is considered incomplete, the department shall notify the applicant of the information that is missing, and shall allow the applicant 14 business days to submit the missing information.
(2) If the department is unable to verify that a physician who provided written certification for a qualifying patient is in good standing with the department or meets the definition of a physician under the code, the applicant shall be allowed 30 calendar days to submit written certification from an alternate physician who meets these requirements. Failure to submit the required written certification from a physician is grounds for denial under R 333.113.
(3) If an applicant fails to provide the information necessary to declare an application complete, or to complete the verification process within the timelines established in subrules (1) and (2) of this rule, the department shall return the application to the applicant as incomplete. An applicant whose application is returned as incomplete may reapply at any time.
R 333.109 Verification of information.
Rule 9. The department shall verify the information contained in an application and the accompanying documentation, which may include, but is not limited to, the following:
(a) Contacting each applicant by telephone or by mail. If proof of identity is uncertain, the department may require a face-to-face meeting with an applicant and may require the production of additional identification materials.
(b) Contacting a minor's parent or legal guardian.
(c) Contacting a qualifying patient's representative.
(d) Verifying that a physician is licensed to practice in the state and is in good standing with the department.
(e) Contacting the certifying physician directly to confirm the validity of the written certification.
(f) Contacting the department of human services or the social security administration to verify a qualifying patient's eligibility for the Medicaid health plan or Social Security Income benefits.
*Rule 333.109 , "(a) If proof of identity is uncertain, the department may require a face-to-face meeting with an applicant and may require production of additional identification materials." This part is a bit concerning because Michigan is a huge state and many patients are ill not able to travel to Lansing, or anywhere. These should are local offices.
R 333.111 Fees; reduced fees; renewal.
Rule 11. (1) The fee for a new or renewal application is $100.00, unless a qualifying patient can demonstrate his or her current eligibility in the Medicaid health plan or receipt of current Social Security Income benefits, in which case the application fee is $25.00. To qualify for a reduced fee, an applicant shall satisfy either of the following requirements:
(a) Submit a copy of the qualifying patient's current MHP eligibility statement.
(b) Submit a copy of the qualifying patient's current monthly SSI benefit card, showing dates of coverage.
(2) The department shall notify an applicant who submits a reduced fee for which the qualifying patient is not eligible and will give the applicant 14 calendar days from the date of notice to pay the correct fee or submit verification of eligibility for a reduced fee.
(3) The fee for a duplicate copy of the registration identification card for the patient, the primary caregiver, or the growth site is $10.00 which will be assessed for any changes in the card information as well as in the event of a loss of any of the registration documents.
R 333.113 Registration approval; denial.
Rule 13. (1) Pursuant to section 6(c) of the act, the department shall approve or deny an application within 15 business days of receiving a completed application and the requisite fee.
(2) If an application is approved, within 5 business days of approving the application, the department shall issue a registry identification card to the registered qualifying patient and the registered primary caregiver, if applicable. The registry identification card shall include all of the following:
(a) The name, address, and date of birth of the registered qualifying patient.
(b) If the registered qualifying patient has designated a primary caregiver, the name, address, and date of birth of the registered primary caregiver.
(c) The issue date and expiration date of the registry identification card.
(d) A random and unique identification number.
(e) A clear designation showing whether the registered primary caregiver or the registered qualifying patient will be authorized to possess marihuana plants for the registered qualifying patient's medical use. The designation shall be determined based solely on the registered qualifying patient's preference.
(3) When a registered qualifying patient has designated a primary caregiver, the department shall issue a registry identification card to the registered primary caregiver. The registered primary caregiver's registry identification card shall contain the information specified in subrule (2) of this rule, as appropriate.
(4) A registry identification card shall also be issued for any location used by the qualifying patient or the primary caregiver as a location for growth of marihuana plants.
(5) The department may deny an application for any of the following:
(a) The applicant did not provide the information required under R 333.103 and R 333.105 to establish the qualifying patient's debilitating medical condition and to document the qualifying patient's consultation with 1 or more physicians regarding the therapeutic or palliative benefits from the medical use of marihuana.
(b) The department determines that the information provided by the applicant was falsified.
(c) An applicant has willfully violated the provisions of the act or these rules.
(d) An applicant fails to provide a physical address located this state. This provision shall not apply if the applicant is homeless.
(6) If the department denies an application, the department shall mail the applicant a denial letter within 15 business days of receipt of the completed application. The time periods in R 333.107 that provide an applicant the opportunity to supplement an incomplete application do not count towards the 15-day deadline for processing an application. The denial letter shall be sent by certified mail to the address listed on the application form and shall state the reasons for denial and when the applicant may reapply.
(7) Denial of a registry identification card shall be considered a final department action, subject to judicial review.
Rule 333.115 Primary caregiver; number of qualified patients; responsibilities.
Rule 15. (1) The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application. A registered primary caregiver may assist not more than 5 qualifying patients with their medical use of marihuana.
(2) A registered primary caregiver may receive compensation for actual expenses, including reasonable compensation incurred for services provided to assist a registered qualifying patient in the medical use of marihuana, or for payment for expenses incurred in providing those services, or both.
(3) A registered primary caregiver shall make and maintain a complete and accurate inventory of all usable marihuana produced and plants in the primary caregiver's possession that is authorized for a registered qualifying patient's medical use. The registered primary caregiver shall make and maintain a separate inventory for each qualifying patient that the primary caregiver assists with the medical use of marihuana.
(4) All usable marihuana, plants, seedlings and seeds, associated with the production of marihuana for a registered qualifying patient are the property of the patient and shall be provided to the patient upon request.
(5) All marihuana produced for a registered qualifying patient by a registered primary caregiver shall be provided to the patient when the primary caregiver ceases producing marihuana for the patient.
(6) If a registered qualifying patient dies or is no longer deemed a qualified patient, a registered primary caregiver may transfer all marihuana produced for the former patient to other patients who are currently registered to that primary caregiver, as long as the total amount of marihuana per patient is within the requirements established in R 333.127 of these rules. Documentation of the transfer shall be submitted to the department within 14 calendar days of the transfer.
(7) Except as provided in subrule (6) of this rule, if a registered qualifying patient dies or is no longer deemed a qualified patient, a registered primary caregiver shall turn all marihuana produced for that patient over to law enforcement for destruction and obtain a receipt from law enforcement for the marihuana. The primary caregiver shall return the receipt, inventory for the patient's plants, and registry identification card for that patient to the department within 14 calendar days of the patient's death.
Linear Mode
