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Wednesday, January 2,2013

Clarified and complicated

Advocates say the new bill package affecting medical marijuana patients approved during lame duck is mostly negative or innocuous

by Andy Balaskovitz
Last month’s legislative lame-duck session changed Michigan law on a variety of fronts — the most headline-worthy being right wing power grabs (see: right to work; emergency managers; abortion rights). But lawmakers of all political stripes agreed on some changes to the state Medical Marihuana Act, which as a constitutional amendment approved by voters in 2008 requires a three-fourths vote to alter. The changes will affect 126,000 patients and 26,000 caregivers — some for the better, others to their detriment, advocates say.

HB 4834

This measure:

expands requirements for proving patients’ and caregivers’ residency by requiring copy of a valid driver’s license, state I.D. or voter registration.

requires photos on registry cards; extends the validity of cards from one year to two.

allows the Department of Licensing and Regulatory Affairs to contract for additional help in processing applications.

creates a panel (with a majority licensed physicians) to review changes to the list of qualifying conditions to use medical cannabis.

creates a “Michigan Medical Marihuana Fund” to collect fees as part of the program. A Senate Fiscal analysis shows that the program ran a budget surplus of more than $10 million for each of the past two fiscal years.

Michael Komorn, a Southfield attorney who heads the Michigan Medical Marihuana Association, called the bill “innocuous” and an attempt to fix administrative problems the state has with issuing patient and caregiver cards.

While partially privatizing the application process, the bill requires the state to still make the final determination for issuing cards to qualified patients and caregivers and that confidential information — such as the names of patients and caregivers — must be kept as such. Komorn said confidentiality concerns were voiced by cannabis advocates throughout the process. Privatizing, together with creating a designated fund for program revenues that would not lapse to the General Fund, suggests that, “In a way, they’ve recognized a possible industry or one aspect of an industry to make money, farm it out and make it more efficient administratively,” Komorn said. “It’s beginning to contemplate revenues.”

Becca Hollandsworth, operations manager of the R.C. Randall Memorial Wellness Center at 2208 E. Michigan Ave., says extending registry cards’ expiration from one year to two will ultimately benefit patients. Hollandsworth says the center provides virtually everything, including physician consultations, except dispensing medicine. For those who have trouble getting around, renewing every two years will be “good for patients,” she said. 

HB 4851

We’ll give the Legislature the benefit of the doubt that its intention was to clarify the Medical Marihuana Act with this entire bill package. But Komorn and at least one other attorney specializing in cannabis law say HB 4851 does the opposite, particularly as it attempts to regulate outdoor growing.

An outdoor “enclosed, locked facility” (where plants must be grown) means the plants “are not visible to the unaided eye from an adjacent property when viewed by an individual at ground level or from a permanent structure and are grown within a stationary structure that is enclosed on all sides, except for the base …; located on land that is owned, leased, or rented by either” the patient or caregiver, the bill says.

“They use a lot of words to try to suggest what outdoor growing is,” Komorn said. “By doing so, it lends itself to multiple interpretations despite the intent to clarify.”

Matt Abel, an attorney with the Detroit-based Cannabis Counsel, agrees: “They amended that in a nauseatingly unclear manner. They should be ashamed of themselves for writing that piece of trash.”

This bill also sets guidelines for traveling with plants in the car, basically saying that only the patient or caregiver, or both, can be present in the car with the plants. The goal is to limit access to marijuana. “There’s no rational basis for that,” Abel said, because first pot must be cured and dried.

Convicted felons are also included in the bill. Before, the act prohibited anyone convicted of a felony involving illegal drugs from being a caregiver. That was expanded to also include anyone convicted of a felony in the past 10 years or ever for a felony that’s an “assaultive crime,” the bill says.

This bill also attempts to clarify “bona-fide” doctor/patient relationships. Komorn called this language “much more benign” than what had been contemplated before, adding that most physicians already follow the new requirements, such as having a “reasonable expectation” that the physician will provide follow-up care to make sure it’s working.

Hollandsworth, of the wellness center, agrees. “We set it up to send reminders every four months to bring people back three times a year” for follow-up care, she said.

HB 4856

Abel and Komorn are most worked up about this change to the Michigan Penal Code — not the medical marijuana law — which makes it a misdemeanor to travel in a car with usable marijuana (not plants, as noted above) unless it’s enclosed in a case in the trunk or, if there isn’t one, some place not readily accessible.

“Ultimately, it created a new prohibition,” Komorn said. “This is obviously a law that is going to have a negative impact on patients and caregivers.”

Nonetheless, it passed the Senate unanimously and the House 96-10.

Also, a Senate bill was passed that does not require employers to reimburse patients for treatment related to medical cannabis.

While he doesn’t think the changes are all beneficial, Komorn said changes proposed a few years ago — such as a few state-run growing operations — were more draconian than what the Legislature approved a few weeks ago.

“All in all,” Abel said, “I don’t think the Legislature has done the medical marijuana community any favors.”

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