SENATE BILL 371

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Jacob R. Candelaria and Stuart Ingle

AN ACT

RELATING TO HEALTH; AMENDING AND ENACTING SECTIONS OF THE LYNN AND ERIN COMPASSIONATE USE ACT TO MAKE CHANGES TO ELIGIBILITY PROVISIONS AND ESTABLISH THREE-YEAR CERTIFICATION AND NEW QUALIFYING MEDICAL CONDITIONS, LICENSED PRODUCER LICENSING PROVISIONS AND INTERSTATE RECIPROCITY; AMENDING A SECTION OF THE JONATHAN SPRADLING REVISED UNIFORM ANATOMICAL GIFT ACT; ENACTING A NEW SECTION OF THE NMSA 1978 TO REMOVE PARTICIPATION IN THE STATE'S MEDICAL CANNABIS PROGRAM AS GROUNDS FOR CHILD PROTECTIVE SERVICES INTERVENTION; ALLOWING EMPLOYER OR INSURER PAYMENT FOR THE REASONABLE AND NECESSARY USE OF MEDICAL CANNABIS PURSUANT TO THE WORKERS' COMPENSATION ACT.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 24-6B-11 NMSA 1978 (being Laws 2007, Chapter 323, Section 11) is amended to read:

     "24-6B-11. PERSONS THAT MAY RECEIVE ANATOMICAL GIFT--PURPOSE OF ANATOMICAL GIFT.--

          A. An anatomical gift may be made to the following persons named in the document of gift:

                (1) a hospital; accredited medical school, dental school, college or university; organ procurement organization; or other appropriate person, for research or education;

                (2) subject to the provisions of Subsection B of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part; and

                (3) an eye bank or tissue bank.

          B. If an anatomical gift to an individual pursuant to Paragraph (2) of Subsection A of this section cannot be transplanted into the individual, the part passes in accordance with Subsection G of this section in the absence of an express, contrary indication by the person making the anatomical gift.

          C. If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in Subsection A of this section but identifies the purpose for which an anatomical gift may be used, the following rules apply:

                (1) if the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank;

                (2) if the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank;

                (3) if the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; and

                (4) if the part is an organ, an eye or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.

          D. For the purpose of Subsection C of this section, if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

          E. If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in Subsection A of this section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with Subsection G of this section.

          F. If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor", "organ donor" or "body donor", or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy and the gift passes in accordance with Subsection G of this section.

          G. For purposes of Subsections B, E and F of this section the following rules apply:

                (1) if the part is an eye, the gift passes to the appropriate eye bank;

                (2) if the part is tissue, the gift passes to the appropriate tissue bank; and

                (3) if the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.

          H. An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift pursuant to Paragraph (2) of Subsection A of this section, passes to the organ procurement organization as custodian of the organ.

          I. If an anatomical gift does not pass pursuant to Subsections A through H of this section or the decedent's body or part is not used for transplantation, therapy, research or education, custody of the body or part passes to the person under obligation to dispose of the body or part.

          J. A person may not accept an anatomical gift if the person knows that the gift was not effectively made pursuant to Section [5 or 10 of the Jonathan Spradling Revised Uniform Anatomical Gift Act] 24-6B-5 or 24-6B-10 NMSA 1978 or if the person knows that the decedent made a refusal pursuant to Section [7 of that act] 24-6B-7 NMSA 1978 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.

          K. Except as otherwise provided in Paragraph (2) of Subsection A of this section, nothing in the Jonathan Spradling Revised Uniform Anatomical Gift Act affects the allocation of organs for transplantation or therapy.

          L. An individual's participation in the state's medical cannabis program established pursuant to the Lynn and Erin Compassionate Use Act shall not in itself constitute grounds for refusing to allow that individual to receive an anatomical gift."

     SECTION 2. Section 26-2B-1 NMSA 1978 (being Laws 2007, Chapter 210, Section 1) is amended to read:

     "26-2B-1. SHORT TITLE.--[Sections 1 through 7 of this act] Chapter 26, Article 2B NMSA 1978 may be cited as the "Lynn and Erin Compassionate Use Act" in honor of Lynn Pierson and Erin Armstrong."

     SECTION 3. Section 26-2B-3 NMSA 1978 (being Laws 2007, Chapter 210, Section 3) is amended to read:

     "26-2B-3. DEFINITIONS.--As used in the Lynn and Erin Compassionate Use Act:

          A. "adequate supply" means an amount of cannabis, in any form approved by the department, possessed by a qualified patient or collectively possessed by a qualified patient and the qualified patient's primary caregiver [that is determined by rule of the department to be no more than reasonably necessary to ensure the uninterrupted availability of cannabis for a period of three months] in accordance with Section 6 of this 2017 act and that is derived solely from an intrastate source;

          B. "chronic condition" means a condition that, in the opinion of a patient's practitioner, lasts or is expected to last three months or longer;

          [B.] C. "debilitating medical condition" means:

                (1) cancer;

                (2) glaucoma;

                (3) multiple sclerosis;

                (4) damage to the nervous tissue of the spinal cord, with objective neurological indication of intractable spasticity;

                (5) epilepsy;

                (6) positive status for human immunodeficiency virus or acquired immune deficiency syndrome;

                (7) admitted into hospice care in accordance with rules promulgated by the department; [or]

                (8) amyotrophic lateral sclerosis;

                (9) Crohn's disease;

                (10) hepatitis C infection, for which the applicant or qualified patient is currently receiving antiviral treatment;

                (11) Huntington's disease;

                (12) inclusion body myositis;

                (13) inflammatory autoimmune-mediated arthritis;

                (14) painful peripheral neuropathy;

                (15) Parkinson's disease;

                (16) posttraumatic stress disorder;

                (17) severe chronic pain;

                (18) severe anorexia or cachexia;

                (19) spasmotic torticollis;

                (20) ulcerative colitis;

                (21) substance use disorder, for which the applicant or qualified patient is currently undergoing treatment for the applicant's or qualified patient's condition; or

                [(8)] (22) any other medical condition, medical treatment or disease as approved by the department;

          [C.] D. "department" means the department of health;

          [D.] E. "licensed producer" means any person or association of persons within New Mexico that the department determines to be qualified to produce, possess, distribute and dispense cannabis pursuant to the Lynn and Erin Compassionate Use Act and that is licensed by the department;

          [E.] F. "practitioner" means a person licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act;

          [F.] G. "primary caregiver" means a resident of New Mexico who is at least eighteen years of age and who has been designated by the patient's practitioner as being necessary to take responsibility for managing the well-being of a qualified patient with respect to the medical use of cannabis pursuant to the provisions of the Lynn and Erin Compassionate Use Act;

          [G.] H. "qualified patient" means a resident of New Mexico who has been [diagnosed by a practitioner as having a debilitating medical condition and has received written certification and] issued a registry identification card [issued] pursuant to the Lynn and Erin Compassionate Use Act [and] on the basis of:

                (1) having been diagnosed by a practitioner as having a debilitating medical condition for which the practitioner has issued written certification; or

                (2) status as a veteran;

          I. "personal production license" means a license issued to a qualified patient participating in the medical cannabis program to permit the qualified patient to produce medical cannabis for the qualified patient's own personal use in accordance with the provisions of the Lynn and Erin Compassionate Use Act and department rules;

          J. "registry identification card" means a document that the department issues:

                (1) to a qualified patient that identifies the bearer as a qualified patient and authorizes the qualified patient to use cannabis for a debilitating medical condition; or

                (2) to a primary caregiver that identifies the bearer as a primary caregiver authorized to engage in the intrastate possession and administration of cannabis for the sole use of a qualified patient who is identified on the document;

          K. "THC" means tetrahydrocannabinol, a substance that is the primary psychoactive ingredient in cannabis;

          L. "veteran" means a person who served in the uniformed services and who was discharged or released from the uniformed services under conditions other than dishonorable; and

          [H.] M. "written certification" means a statement in a patient's medical records or a statement signed by a patient's practitioner that indicates, in the practitioner's professional opinion, that the patient has a debilitating medical condition and the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient [A written certification is not valid for more than one year from the date of issuance]."

     SECTION 4. Section 26-2B-7 NMSA 1978 (being Laws 2007, Chapter 210, Section 7) is amended to read:

     "26-2B-7. REGISTRY IDENTIFICATION CARDS--DEPARTMENT RULES--DUTIES--PRESUMPTIVE ELIGIBILITY--RECIPROCITY.--

          A. [No later than October 1, 2007, and] After consultation with the advisory board, the department shall promulgate rules in accordance with the State Rules Act to implement the purpose of the Lynn and Erin Compassionate Use Act. The rules shall:

                (1) govern the manner in which the department will consider applications for registry identification cards and for the renewal of identification cards for qualified patients and primary caregivers;

                [(2) define the amount of cannabis that is necessary to constitute an adequate supply, including amounts for topical treatments;

                (3)] (2) identify criteria and set forth procedures for including additional medical conditions, medical treatments or diseases to the list of debilitating medical conditions that qualify for the medical use of cannabis. Procedures shall include a petition process and shall allow for public comment and public hearings before the advisory board;

                [(4)] (3) set forth additional medical conditions, medical treatments or diseases to the list of debilitating medical conditions that qualify for the medical use of cannabis as recommended by the advisory board;

                [(5)] (4) identify requirements for the licensure of producers and cannabis production facilities and set forth procedures to obtain licenses;

                [(6)] (5) develop a distribution system for medical cannabis that provides for:

                     (a) cannabis production facilities within New Mexico housed on secured grounds and operated by licensed producers; and

                     (b) distribution of medical cannabis to qualified patients or their primary caregivers to take place at locations that are designated by the department and that are not within three hundred feet of any school, church or daycare center;

                [(7)] (6) determine additional duties and responsibilities of the advisory board; and

                [(8)] (7) be revised and updated as necessary.

          B. The department shall issue registry identification cards to a patient and to the primary caregiver for that patient, if any, who submit the following, in accordance with the department's rules:

                (1) a written certification or proof of veteran status;

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

                (3) the name, address and telephone number of the patient's practitioner; and

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

          C. For a patient who applies for a registry identification card and has submitted written certification, the department shall presume the applicant eligible and issue, within twenty-four hours of receipt of application completed in accordance with Subsection B of this section and department rules, a registry identification card. Within thirty days of receipt of an application, the department shall verify the information contained in an application submitted with written certification pursuant to Subsection B of this section [and shall approve or deny an application within thirty days of receipt].

          D. For a patient who applies for a registry identification card and has submitted proof of veteran status, the department shall not presume that applicant eligible but shall expedite verification of that applicant's application for a registry identification card in accordance with department rules.

          E. The department may deny an application only if the applicant did not provide the information required pursuant to Subsection B of this section or if the department determines that the information provided is false. A person whose application has been denied shall not reapply for six months from the date of the denial unless otherwise authorized by the department.

          [D. The department shall issue a registry identification card within five days of approving an application, and a card shall expire one year after the date of issuance.]

          F. A registry identification card shall contain:

                (1) the name, address and date of birth of the qualified patient and primary caregiver, if any;

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

                (3) other information that the department may require by rule.

          [E.] G. A person who possesses a registry identification card shall notify the department of any change in the person's name, address, qualified patient's practitioner, qualified patient's primary caregiver or change in status of the qualified patient's debilitating medical condition within ten days of the change.

          [F.] H. Possession of or application for a registry identification card shall not constitute probable cause or give rise to reasonable suspicion for a governmental agency to search the person or property of the person possessing or applying for the card.

          [G.] I. The department shall maintain a confidential file containing the names and addresses of the persons who have either applied for or received a registry identification card. Individual names on the list shall be confidential and not subject to disclosure, except:

                (1) to authorized employees or agents of the department as necessary to perform the duties of the department pursuant to the provisions of the Lynn and Erin Compassionate Use Act;

                (2) to authorized employees of state or local law enforcement agencies, but only for the purpose of verifying that a person is lawfully in possession of a registry identification card; or

                (3) as provided in the federal Health Insurance Portability and Accountability Act of 1996.

          J. By July 1, 2017, January 1, 2018 and each January 1 thereafter, the department shall:

                (1) publish on its website in a publicly accessible manner a current census of qualified patients; and

                (2) notify all licensed producers of the current census of qualified patients."

     SECTION 5. A new section of the Lynn and Erin Compassionate Use Act is enacted to read:

     "[NEW MATERIAL] NONRESIDENT RECIPROCITY.--

          A. For the purposes of using, possessing and dispensing medical cannabis, the state and licensed nonprofit producers shall recognize and honor a nonresident card under the following circumstances:

                (1) the state or the jurisdiction that issued the nonresident card grants an exemption from criminal prosecution

for the medical use of cannabis;

                (2) the state or the jurisdiction that issued the nonresident card requires, as a prerequisite to the issuance of such a card, that a physician advise the person that the medical use of cannabis may mitigate the symptoms or effects of the person's medical condition;

                (3) the nonresident card has an expiration date and has not yet expired; and

                (4) the person issued the nonresident card agrees to, and abides by, the prohibitions, restrictions and limitations on the medical use of cannabis in this state.

          B. For the purposes of the reciprocity described in this section:

                (1) the amount of medical cannabis that the person issued a nonresident card is entitled to possess in the person's state or jurisdiction of residence is not relevant; and

                 (2) the person issued a nonresident card shall not, while the person is present in this state, possess cannabis for medical purposes in excess of the limits set forth by the department.

          C. As used in this section, "nonresident card" means a card or other identification that:

                (1) is issued by a state or jurisdiction other than New Mexico; and

                (2) is the functional equivalent of a registry identification card as determined by the department."

     SECTION 6. A new section of the Lynn and Erin Compassionate Use Act is enacted to read:

     "[NEW MATERIAL] REGISTRY IDENTIFICATION CARD--RENEWAL--WRITTEN CERTIFICATION.--The department shall require a qualified patient to reapply for a registry identification card as follows:

          A. for a qualified patient who is a veteran or whose certification of a debilitating medical condition indicates that the patient's debilitating medical condition is a chronic condition, no sooner than three years from the date the patient's current registry identification card is issued; and

          B. for a qualified patient whose certification of a debilitating medical condition does not indicate that the patient's debilitating medical condition is a chronic condition, no sooner than three years from the date the patient's current registry identification card is issued; provided that, in order to remain eligible for participation in the medical cannabis program established pursuant to the Lynn and Erin Compassionate Use Act, a qualified patient whose debilitating medical condition is not a chronic condition shall submit annually to the department a statement from the qualified patient's practitioner indicating that:

                (1) the practitioner has examined the qualified patient during the preceding twelve months;

                (2) the qualified patient continues to have a debilitating medical condition; and

                (3) the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the qualified patient."

     SECTION 7. A new section of the Lynn and Erin Compassionate Use Act is enacted to read:

     "[NEW MATERIAL] LICENSED PRODUCERS--BIENNIAL LICENSURE--LICENSE FEES.--The department shall provide for biennial licensure of licensed producers. A licensed producer shall submit to the department a nonrefundable licensure fee before beginning operations, no earlier than July 1 of each renewal year and no later than August 1 of each renewal year, of:

          A. thirty thousand dollars ($30,000) for the first one hundred fifty cannabis plants to be possessed by the licensed producer; and

          B. ten thousand dollars ($10,000) for each additional quantity of fifty plants in excess of the one hundred fifty plants to be possessed by the licensed producer."

     SECTION 8. [NEW MATERIAL] MEDICAL CANNABIS PROGRAM--REMOVAL OF CHILDREN--FAMILY SERVICES INTERVENTION.--An individual's participation in the state's medical cannabis program established pursuant to the Lynn and Erin Compassionate Use Act shall not in itself constitute grounds for:

          A. removal and placement into state custody of a child in that individual's care pursuant to the Abuse and Neglect Act; or

          B. the provision of state prevention, diversion or intervention services to that individual's family pursuant to the Family Services Act.

     SECTION 9. A new section of the Workers' Compensation Act is enacted to read:

     "[NEW MATERIAL] WORKERS' COMPENSATION PAYMENT FOR MEDICAL CANNABIS.--An employer or insurer shall pay for medical cannabis for a worker when:

          A. an authorized health care provider determines that the use of medical cannabis is reasonable and necessary health care for the worker's injury;

          B. the authorized health care provider is authorized by law to prescribe and administer drugs that are subject to the Controlled Substances Act;

          C. the treatment or services being provided to the worker by the health care provider are within the health care provider's scope of practice as determined by the health care provider's license; and

          D. the worker has a valid registry identification card issued by the department of health pursuant to the Lynn and Erin Compassionate Use Act."

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