HB4868 93RD GENERAL ASSEMBLY

LRB093 15939 RLC 44137 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB4868

Introduced 02/04/04, by Angelo Saviano, Larry McKeon, Susana Mendoza

SYNOPSIS AS INTRODUCED:

New Act
720 ILCS 550/11	from Ch. 56 1/2, par. 711

Creates the Medical Cannabis Act. Provides that a person who has been diagnosed by a physician as having a debilitating medical condition and the person's primary caregiver may be issued a registry identification card by the Department of Human Services that permits the person or the person's primary caregiver to legally possess no more than 6 Cannabis Sativa plants and one ounce of usable cannabis. Provides that a person who possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denial of any right or privilege, including civil penalty or disciplinary action by a professional licensing board, for the medical use of cannabis; provided that the qualifying patient or primary caregiver possesses an amount of cannabis that does not exceed 6 Cannabis Sativa plants and one ounce of usable cannabis. Amends the Cannabis Control Act to make conforming changes consistent with the Medical Cannabis Act. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning the medicinal use of cannabis.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

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

Section 5. Purpose.

(a) Modern medical research has discovered a beneficial use for cannabis in treating or alleviating the pain or 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 the use of cannabis, the laws of Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, 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 physicians and primary caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of cannabis.

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

"Debilitating medical condition" means:

(A) cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, or the treatment of these conditions;

(B) 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 those characteristic of epilepsy; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis or Crohn's disease; or

(C) any other medical condition or its treatment approved by the Department, as provided for as follows: Not later than 90 days after the effective date of this Act, the Department shall promulgate rules governing the manner in which it will consider petitions from the public to add debilitating medical conditions to those included in this Act. In considering those petitions, the Department shall include public notice of, and an opportunity to comment in a public hearing upon, the petitions. The Department shall, after hearing, approve or deny such petitions within 180 days of submission. The approval or denial of such a petition shall be 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.

"Department" means the Department of Human Services or its successor agency.

"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 the symptoms or effects of a qualifying patient's debilitating medical condition.

"Physician" means a person who is licensed to practice medicine in all its branches under the Medical Practice Act of 1987.

"Primary caregiver" means a person who is at least 18 years old, who has never been convicted of a felony drug offense, and who has agreed not to provide cannabis to any person other than qualifying patients. A qualifying patient may have only one primary caregiver at any one time.

"Qualifying patient" means a person who has been diagnosed by a physician 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 Sativa plant, and any mixture or preparation thereof, and 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 physician, stating that in the physician's professional opinion, after having completed a full assessment of the qualifying patient's medical history and current medical condition made in the course of a bona fide physician-patient relationship, the qualifying patient has a debilitating medical condition and the potential benefits of the medical use of cannabis would likely outweigh the health risks for the qualifying patient.

Section 15. Protections for the medical use of cannabis.

(a) A qualifying patient who has in his or her possession a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denial of any right or privilege, including civil penalty or disciplinary action by a professional licensing board, for the medical use of cannabis, provided that the qualifying patient possesses an amount of cannabis that does not exceed 6 Cannabis Sativa plants and one ounce of usable cannabis.

(b) Subsection (a) does not apply to a qualifying patient under the age of 18 years, unless:

(1) The qualifying patient's physician 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 the qualifying patient's primary caregiver; and

(C) control the acquisition of the cannabis, the dosage, and the frequency of the medical use of cannabis by the qualifying patient.

(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 denial of any right or privilege, including civil penalty or disciplinary action by a professional licensing board, for assisting the 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 which does not exceed 6 Cannabis Sativa plants and one ounce of usable cannabis.

(d) There is 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 which 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 symptoms or effects of a qualifying patient's debilitating medical condition.

(e) A primary caregiver may receive reasonable compensation for services provided to assist with a qualifying patient's medical use of cannabis.

(f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including civil penalty or disciplinary action by the Department of Professional Regulation or the Medical Disciplinary Board, for providing written certification for the medical use of cannabis to qualifying patients.

(g) 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.

(h) No person shall be subject to arrest or prosecution for "constructive possession," "conspiracy," or any other offense for simply being in the presence or vicinity of the medical use of cannabis as permitted under this Act.

(i) A registry identification card, or its equivalent, issued by another state government 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 of effect as a registry identification card issued by the Department.

Section 20. Procedures and rules governing registration.

(a) Not later than 90 days after the effective date of this Act, the Department shall promulgate rules governing the manner in which it will 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.

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

(1) written certification that the person is a qualifying patient;

(2) application or renewal fee;

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

(4) the name, address, and telephone number of the qualifying patient's physician; and

(5) the name, address, and date of birth of the qualifying patient's primary caregiver, if any.

(c) The Department shall verify the information contained in an application or renewal submitted under this Section, and shall approve or deny an application or renewal within 30 days of receipt of the application or renewal. The Department may deny an application or renewal only if the applicant did not provide the information required under this Section, or if the Department determines that the information provided was falsified.

(d) The Department shall issue a registry identification card to the primary caregiver who is named in a qualifying patient's approved application, so long as the primary caregiver signs a statement agreeing to provide cannabis only to qualifying patients who have named him or her as primary caregiver; provided, the Department may not issue a registry identification card to a proposed primary caregiver who has previously been convicted of a felony drug offense.

(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) name, address, and date of birth of the qualifying patient; (2) name, address, and date of birth of the qualifying patient's primary caregiver, if any; (3) the date of issuance and expiration date of the registry identification card; and (4) other information that the Department may specify in its regulations.

(f) A person who possesses a registry identification card shall notify the Department of any change in the qualifying patient's name, address, physician, or primary caregiver, or change in status of the qualifying patient's debilitating medical condition, within 10 days of such change, or the registry identification card shall be deemed null and void.

(g) Possession of, or application for, a registry identification card does not alone constitute probable cause to search 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 possessing the card to inspection by any governmental agency.

(h) 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:

(1) authorized employees of the Department as necessary to perform official duties of the Department; or

(2) authorized employees of State or local law enforcement agencies, only as necessary to verify that a person who is engaged in the suspected or alleged medical use of cannabis is lawfully in possession of a registry identification card.

(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 physicians providing written certification for qualifying patients. The Department may not provide any identifying information of qualifying patients, primary caregivers, or physicians.

(j) It is a Class B misdemeanor for any person, including employees and officials of the Department and other State and local governmental units or agencies, to provide any identifying information of qualifying patients or primary caregivers to a federal official or federal agency.

Section 25. Scope of Act.

(a) This Act does not permit:

(1) any person to operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of cannabis; or

(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) at any public park, public beach, public recreation center, or youth center.

(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) Notwithstanding any law to the contrary, 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, which shall be in addition to any other penalties that may apply for the non-medical use of cannabis.

Section 30. Affirmative defense. A person and a person's primary caregiver, if any, may assert the medical use of 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 physician has stated that, in the physician'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 physician-patient relationship, the potential benefits of the medical use of cannabis 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 symptoms or effects of the person's medical condition.

Section 35. 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 95. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.