Legislature(1999 - 2000)
05/03/1999 01:35 PM Senate HES
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE
May 3, 1999
1:35 p.m.
MEMBERS PRESENT
Senator Mike Miller, Chairman
Senator Pete Kelly, Vice-Chairman
Senator Gary Wilken
Senator Drue Pearce
Senator Kim Elton
MEMBERS ABSENT
All Members were present
COMMITTEE CALENDAR
CS FOR HOUSE JOINT RESOLUTION NO. 36(HES) am
Relating to rejecting the conclusions in a recent article published
by the American Psychological Association that suggests that sexual
relationships between adults and children might be positive for
children; and urging the President of the United States and the
United States Congress to similarly reject these conclusions.
-MOVED CSHJR 36(HES)am OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 94
"An Act relating to the medical use of marijuana; and providing for
an effective date."
-MOVED CSSSSB 94(HES) OUT OF COMMITTEE
SENATE BILL NO. 117
"An Act relating to property insurance required for school
districts."
-SCHEDULED BUT NOT HEARD
SENATE BILL NO. 61
"An Act relating to licensure and professional discipline of
members of the teaching profession and providing for related
penalties; relating to grounds for dismissal of a teacher; relating
to the Professional Teaching Practices Commission; relating to
limited immunity for procedures under the Educator Ethics Act;
making conforming amendments; and providing for an effective date."
-SCHEDULED BUT NOT HEARD
SENATE BILL NO. 167
"An Act relating to scholarships to attend the University of
Alaska; establishing the Alaska scholars program; and providing for
an effective date."
-SCHEDULED BUT NOT HEARD
CS FOR SENATE BILL NO. 80(CRA)
"An Act relating to contracts for the provision of state public
assistance to certain recipients in the state; providing for
regional public assistance plans and programs in the state;
relating to grants for Alaska Native family assistance programs;
and providing for an effective date."
-SCHEDULED BUT NOT HEARD
PREVIOUS SENATE COMMITTEE ACTION
HJR 36 - No previous action to report
SB 94 - See HESS Committee minutes dated 3/24/99 and 4/28/99
SB 117 - See HESS Committee minutes dated 4/19/99
SB 61 - No previous action to report
SB 167 - No previous action to report
SB 80 - See C&RA Committee minutes dated 3/8/99 and 3/17/99
WITNESS REGISTER
Representative Fred Dyson
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HJR 36
Mr. Dean Guaneli, Chief Assistant Attorney General
Criminal Division, Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Commented on SB 94
Mr. Mike Pauley
Staff to Senator Loren Leman
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented Draft CS to SSSB 94
Mr. David Finkelstein
Alaskans for Medical Rights
POSITION STATEMENT: Commented on Draft CSSSSB 94
Mr. Elmer Lindstrom, Special Assistant
Department of Health & Social Services
PO Box 110601
Juneau, AK 99811-0601
POSITION STATEMENT: Commented on SB 94
Mr. Al Zangri, Chief
Bureau of Vital Statistics
Department of Health & Social Services
PO Box 110675
Juneau, AK 99811-675
POSITION STATEMENT: Commented on SB 94
Mr. Del Smith, Deputy Commissioner
Department of Public Safety
PO Box 111200
Juneau, AK 99811-200
POSITION STATEMENT: Commented on SB 94
ACTION NARRATIVE
TAPE 99-24, SIDE A
Number 001
HJR 36-AMERICAN PSYCHOLOGICAL ASSOCIATION REPORT
CHAIRMAN MILLER called the Senate Health, Education and Social
Services (HESS) Committee to order at 1:35 p.m. and brought HJR 36
before the committee.
REPRESENTATIVE FRED DYSON, sponsor of HJR 36, introduced his staff,
Lisa Torkelson. He explained that in the summer of 1998, the
American Psychological Association (APA) published a scientific
paper that reviewed 59 or 60 papers, most of which were completed
by Master's level students who used college-aged participants. The
APA did a statistical analysis of the 60 original studies and
concluded that the studies contained little evidence that child
sexual abuse is a negative experience, and in fact, that for some,
it was a positive experience. The APA suggested that we might
consider less pejorative terms in describing adult-child sexual
activity.
REPRESENTATIVE DYSON continued. About half of the papers have
never been published, and none of the study participants were ever
interviewed. It is possible that the studies didn't report the
negative impact, and by college age the pervasive impacts of child
sexual abuse may not yet show up. Many times the results don't
show up until people start building intimate relationships, such as
in marriage.
When criticized, the APA pointed out that it has published many
other papers showing child sexual abuse is pervasively harmful, and
it has not taken a position on this paper. The APA has strongly
stated that child sexual abuse is wrong and should be criminalized.
REPRESENTATIVE DYSON said he suspects the APA will be more careful
in the future to do a peer review of studies before publication and
to make a disclaimer when it does publish a study to ensure its
review is not taken out of context.
The APA is very respected and has done good work. REPRESENTATIVE
DYSON said, "we need to be careful not to get into demagoguery."
Most of his foster children were sexually abused, and, with some
the perpetrators used child pornography in their selection process.
He could foresee the day when someone might misuse the APA study in
an attempt to seduce a literate child.
REPRESENTATIVE DYSON cautioned his last concern is that the paper
will show up in sentencing actions, if not in the court trial
itself, to persuade a judge that in many cases this mistreatment of
children is not harmful and the sentence should not be harsh. The
APA would not endorse any of those outcomes, and would take a
strong stand against such misuses.
REPRESENTATIVE DYSON said HJR 36 received no negative votes in the
House. He suggested committee members ask themselves whether the
legislature should take a stand on this.
Number 144
SENATOR ELTON said he hopes the legislature does not train itself
"to watch Oprah and draft a resolution, or listen to Dr. Laura and
draft a resolution." He noted the difference with HJR 36 is that
this report was done under the umbrella of a widely-respected
organization, but he hopes the legislature doesn't go beyond this.
SENATOR WILKEN moved HJR 36 from committee with individual
recommendations. Without objection, it moved from committee.
SB 94-MEDICAL USE OF MARIJUANA
Number 160
CHAIRMAN MILLER brought up SB 94 and the proposed committee
substitute containing the amendments suggested by the
Administration last week.
MR. DEAN GUANELI, Chief Assistant Attorney General, Criminal
Division, Department of Law, said he would stay on-line to answer
questions.
CHAIRMAN MILLER stated Mr. Pauley would briefly explain the CS, and
then Mr. David Finkelstein's testimony would be taken.
Number 184
MR. MIKE PAULEY, staff to Senator Leman, sponsor of SB 94,
highlighted the substantive changes in the CS as follows.
The first change relates to registration. The initiative that
passed last fall creates a state registry of patients entitled to
use marijuana for medical purposes, but registration is voluntary.
MR. PAULEY said as a practical matter, lack of a registration
requirement makes it difficult for law enforcement officers to
distinguish between legitimate and illegitimate users, and creates
a danger that a person with a legitimate need may be mistakenly
arrested. To eliminate that possibility, SB 94 requires
registration.
The second change deals with the ability of law enforcement to
access information in the registry. Under the current marijuana
law, access is limited only to those occasions when a law
enforcement officer has stopped or arrested a person claiming to be
using medical marijuana. Under SB 94, law enforcement will have
access to registry information while in the course of a criminal
investigation or prosecution. This change will also help police
distinguish between legitimate and illegitimate users of this drug.
The third change relates to possession limits. The initiative
allows possession of an unlimited amount of marijuana as long as it
can be medically justified. There are no clear definitions of what
"medically justified" means. SB 94 establishes a clear possession
limit of one ounce in usable form and six marijuana plants.
The fourth change deals with registry identification cards. SB 94
requires that all patients and primary care givers be issued a
state identification card, just as permits are issued to Alaskans
who qualify to carry concealed weapons. If a police officer
questions a patient or primary care giver about the medical use of
marijuana, the person must display the registry identification
card.
The fifth change relates to the role of the primary care givers.
SB 94 establishes some precautions that the sponsor expects will
help prevent abuse. Each patient can have one primary care giver
and each primary care giver can care for only one patient, with
some limited exceptions. A person who has violated the drug laws
of Alaska or another state cannot be a primary care giver, nor can
a person who is on probation or parole.
The sixth change to SB 94 requires physicians that recommend
marijuana to first explore other approved medications and
treatments that might provide relief, a recommendation contained in
the Federal Institute of Medicine study on medical marijuana
released last month.
MR. PAULEY said that finally, and perhaps most importantly, SB 94
closes numerous loopholes in the initiative that exist because of
drafting flaws. If left uncorrected, these loopholes, contrary to
the initiative sponsors' intent, would potentially allow marijuana
to be smoked in public places, on school grounds, on a school bus,
in state prisons, and at the workplace.
CHAIRMAN MILLER asked for a motion to adopt the proposed committee
substitute (Luckhaupt Version K).
SENATOR PEARCE moved to adopt CSSSSB 94. Without objection, it was
adopted.
Number 244
SENATOR ELTON asked the difference between defense and affirmative
defense on page 1, line 5.
MR. PAULEY mentioned that the difference is covered extensively in
the sectional analysis. He explained that under AS 11.81.900,
Subsection B, the term "affirmative defense" means that "some
evidence must be admitted which places in issue the defense, and
that the defendant has the burden of establishing the defense by a
preponderance of evidence." Mr. Pauley read directly from the
sectional analysis:
"This is appropriate in circumstances where the defendant has
special custody of, or access to, information such as a
registration card or written medical diagnosis that would
clearly demonstrate to law enforcement officials that the
person is covered by a statutory exception."
MR. PAULEY said that essentially, the affirmative defense provision
is identical to the way Alaska's concealed carry law works: it is
still illegal to carry a concealed weapon in the State of Alaska
but the statute provides that, in any charge related to carrying a
concealed weapon, it's an affirmative defense that a defendant has
a permit to allow him/her to carry the concealed weapon. The
bill's sponsor was told by law enforcement officials that system
works very well in the context of concealed weapons. It
establishes what the Supreme Court has called "a bright line,"
which makes it clear to police who can legitimately carry a
concealed weapon and who cannot. SB 94 effectively applies that
same model to the context of medical marijuana.
SENATOR ELTON asked why a person who is carrying a card and is on
the registry would have to prove anything since in most
prosecutions the burden of proof is on the prosecution.
MR. PAULEY deferred to Mr. Dean Guaneli to address that question.
Number 287
MR. DEAN GUANELI, Chief Assistant Attorney General, stated the
initiative does require, in several instances, that the person
using medical marijuana who is not registered prove that they are
entitled to use it. With respect to people who are registered, the
standards under the initiative are unclear as to what has to be
proven, and by whom.
As Mr. Pauley said, the evidence about being entitled to register
and use marijuana is in the possession of the patient, and puts the
prosecution in the position of an impossible burden of proving a
negative, or proving the person is not entitled to use marijuana.
Under Alaska's rules of criminal discovery, the prosecution is
entitled to get almost no information from the defendant, but the
defendant gets everything from the prosecution, placing the
prosecutor in a difficult position.
Affirmative defenses are used throughout the law in Alaska, in
literally dozens of places where someone has access to specific
information that the prosecutor might not have. It seems
appropriate to apply the same standard across the board to everyone
who seeks to use marijuana, even if they are registered. The users
have to prove they were validly registered at the time the
marijuana was possessed, that their intent to use it was for
medical purposes only, and that they complied with the law.
SENATOR WILKEN said that on page 3, line 29 of the CS, the
requirement that the patient has to see his or her physician within
a three-month period was removed. He asked if it was removed
intentionally.
MR. PAULEY replied that change was included in the package of
amendments the Administration recommended the committee adopt, and
his understanding was that they felt it was an unnecessary
infringement on the patient-physician relationship.
MR. GUANELI clarified that DHSS requested that a physical
examination be required at some time, and that the physician be in
a position to certify to things required under the statute. The
additional requirement that the examination be done three months
before the date of application would have required the patient to
have an in-person examination every year just prior to registry
application. DHSS felt that might be easy for people in urban
areas, but it could require people in remote villages to fly to an
urban area.
Number 360
SENATOR WILKEN asked if the patient will never have to be seen by
a physician again after going once, getting the prescription for
medical marijuana, and signing up on the registry under the CS.
MR. GUANELI said that is the practical effect, but the doctor must
make the required certifications each year in the application
process. If a doctor is uncomfortable making those certifications
without having seen the patient, the doctor would most likely
require an in-person exam.
SENATOR WILKEN asked about the addition of the term "alternate care
giver" throughout the CS.
MR. GUANELI explained that patients unable to get around by
themselves need a care giver to grow or acquire the marijuana for
them. If that care giver is unavailable, DHSS felt a designated
alternate should be available. One identification card is issued
for a user's care giver; whoever is in possession of that card is
able to transport the marijuana to, or grow it for, the patient.
SENATOR WILKEN asked why Subsection (B) on page 9, lines 21-24, is
necessary if a bona fide physician-patient relationship exists.
MR. GUANELI said that Mr. Luckhaupt could address that drafting
matter, however the definition of "bona fide physician-patient
relationship" does not describe the standard under which marijuana
is recommended. It simply defines that the physician performs an
in-person exam and keeps records of the diagnosis. Subsection (B)
sets out the standards under which marijuana is recommended.
MR. PAULEY replied the policy reason behind the requirement relates
to the fact that marijuana is classified as a Schedule 1 drug under
federal law, therefore it is illegal to prescribe and distribute.
A doctor who considers prescribing marijuana should also consider
and rule out other legal treatments so as to avoid exposing the
patient to potential prosecution.
Number 425
SENATOR ELTON asked what special requirements this will entail, and
whether a doctor will have to document that alternate treatments
will not work before prescribing marijuana.
MR. PAULEY said it will require that a doctor demonstrate that
he/she considered other treatments. He quoted from a national
study and informed committee members the CS language is "softer and
more lenient" than the study's recommendation to allow short term
use only if failure of all approved medications has been
documented.
SENATOR ELTON commented it may be more lenient, but it's still a
significant restriction beyond the initial language.
MR. PAULEY said it is a requirement that was not in the initiative,
but the sponsor felt it is in the best interest of the patient in
terms of protecting the patient from legal risk.
Number 472
MR. ELMER LINDSTROM, Special Assistant, Department of Health &
Social Services (DHSS), distributed a proposed amendment that the
sponsor concurs with.
MS. KAREN PERDUE, Commissioner of DHSS, stated DHSS worked with the
bill sponsor on Sections (B) and (C) on the top of page 4.
MR. LINDSTROM explained the proposed language on page 4, line 5,
reads:
...stating that the physician had considered other approved
medications and treatments that might provide relief, that are
reasonably available to the patient, and that can be tolerated
by the patient, and that the physician has concluded that the
patient might benefit from the medical use of marijuana.
CHAIRMAN MILLER asked the reason for the amendment.
COMMISSIONER PERDUE said it removes the physician from the position
of having to justify that the use of marijuana outweighs the
benefits of the use of other alternatives to address the patient's
debilitating medical condition. DHSS feels this duty is above and
beyond what physicians must do for any other activity they are
engaged in with their patients.
SENATOR ELTON asked if the proposed amendment will require a
further amendment on page 9, line 21.
MR. LINDSTROM said he does not believe the language on page 9 will
be inconsistent with the proposed amendment to page 4. He said in
speaking to the sponsor, one other issue arose regarding the
inclusion of the word "condition" on page 4, line 4, which might
require DHSS to acquire specific medical information on
individuals. The word "condition" implies the underlying disease;
Mr. Lindstrom said DHSS does not see that as necessary for the
purpose of law enforcement. Collecting that information would be
a burden for DHSS as it would have to store extremely confidential
medical records.
MR. LINDSTROM pointed out that issue could be resolved by changing
the word "condition" to "symptom." He said DHSS spoke to the
sponsor about that change.
CHAIRMAN MILLER suggested changing the word "condition" to
"symptom" on page 4 as part of Amendment No. 1.
Number 538
MR. DAVID FINKELSTEIN, Alaskans for Medical Rights (AMR), addressed
the proposed amendments. The change on page 9 is a conforming
amendment that is required because that section says a physician's
protection from prosecution comes from meeting those requirements.
MR. FINKELSTEIN said his patients feel strongly about the mandatory
registration issue. According to the initiative, patients who
register with the state receive protection from arrest; those who
do not are faced with an affirmative defense in court. Mandatory
registration will leave all patients with an affirmative defense.
AMR believes someone who signs up with the state, registers and has
a card, does not use marijuana in public, and fits into every limit
in the law, should have the higher protection standard of not being
subject to arrest.
Under an affirmative defense, the burden of proof will be on the
patient. The CS specifically requires that the patient be able to
show that the entire amount of marijuana in possession is for
medical use. He said, "If the burden is on the prosecution, that's
fine, but if it's on the patient, how could they show that?" If
the registration is mandatory, the patient should at least be given
the standard of not being subject to arrest.
MR. FINKELSTEIN noted mandatory registration raises the issue of
access to the list. AMR supports access to verify that a patient
is on the list, but to make the list accessible at any time on any
subject goes too far and will discourage patients from signing up.
Patients fear the list could be accessed at any time.
Regarding the amendment addressing the nature of the patient's
condition or symptom, he said the AMR objects to the language
either way. It was not in the original version of SB 94. The
doctor's recommendation must say something about the patient's
medical condition which becomes part of the record. MR.
FINKELSTEIN said if you mandate registration, you will discourage
participation if you ask the doctor to include details of any sort
about the patient's medical condition. It will be tough to get
patients to sign up, period. The AMR believes it is in the public's
interest to get people to sign up.
On the issue of one patient per care giver, AMR does not disagree
with the sponsor's goal but it is problematic. Exceptions are
limited to family members in the same household. In many
situations a care giver is a family member who lives in a different
household. The AMR thinks the same household requirement should be
removed.
The other exceptions are ones DHSS has proposed in a regulation.
One exception allows Hospice care givers to provide for more than
one patient, another exception is provided for patients who can
prove they deserve one. The AMR feels those exceptions should be
included.
The forfeiture language in the initiative has been removed. It
was very important to patients and meant that they would not be
subject to forfeiture unless convicted. It was in the Sponsor
Substitute but removed again with the Administration's amendments.
The AMR thinks it is an important protection for patients because
unless convicted, these folks are not criminals and should not lose
their assets.
TAPE 99-24, SIDE B
Number 589
MR. FINKELSTEIN said his last concern is a change made by the
Administration that raises the care giver's minimum age from 18 to
21. The initiative specified age 18 because at that age one can
be prosecuted in adult court. Care givers under 18 are not subject
to the full force of the law, and could use the immunity provision
associated with juvenile court to pull off scams. The AMR sees no
reason why the minimum age should be changed to age 21, because a
person tried in adult court will "face the music on this if they
violate the law."
SENATOR ELTON questioned the restriction of one care giver per
patient, and asked if two people in the same household were
registered to use marijuana whether one care giver could provide
for both. MR. FINKELSTEIN said yes, if they are family members.
SENATOR ELTON asked if the Hospice program has 4 or 5 clients with
authorized use of medical marijuana whether Hospice would have to
use 4 or 5 care givers. MR. FINKELSTEIN replied DHSS has proposed,
in regulation, to allow an exception for a Hospice worker or for
individuals who can prove that they should be a primary care giver
for more than one patient.
Number 566
SENATOR WILKEN said the requirement in the CS that the patient or
care giver be an Alaska resident was removed. He asked why
possession of an Alaska driver's license is now required.
MR. LINDSTROM said family members or persons from out of state
might act as care givers from time to time, and they should not be
precluded.
SENATOR WILKEN asked if he could live in Dallas, obtain an Alaska
driver's license, and still be covered under this.
MR. AL ZANGRI, Chief of Bureau of Vital Statistics, DHSS, said that
he could not. The objective is to allow two things. An individual
coming from another state could be a primary care giver to his
parents. Others, living here temporarily, with Medicaid coverage in
another state could lose that coverage in their home state if they
change their residency to get this treatment.
SENATOR WILKEN asked why the care giver would be required to have
an Alaska driver's license. MR. ZANGRI said the requirement is
either a driver's license or a state identification card issued by
DMV.
SENATOR WILKEN questioned the change on the bottom of page 5, line
30, and asked if there is a legal reason for removing the
requirement that the designated care giver provide information that
had not been falsified to the department for certification.
MR. ZANGRI said there was a legal reason for removing the language.
If DHSS found any falsification it would deny the person from
becoming a care giver. However, the standard would be impossible
for DHSS to meet because the department could not conclude that a
document contains no false information.
Number 526
SENATOR ELTON commented that the language on page 3, line 6, will
provide a tremendous disincentive to register if applicants know
the registry list will be accessed by law enforcement.
MR. DEL SMITH, Deputy Commissioner of the Department of Public
Safety (DPS), said the intent is to verify that someone is
registered so that he/she is not charged and their marijuana is not
confiscated. The language in Section 1, line 6, does allow law
enforcement to go further if necessary. DPS, for example, might
need to get more information about a large grow operation, however
such an occurrence would be rare.
MR. GUANELI said the police could check the registry before talking
to the person who is growing marijuana. If the person is not
listed, it would be appropriate to do a full investigation. The
same is true with the prosecution. Information will often need to
be accessed in order to clear someone, saving further time and
expense.
SENATOR ELTON said he can understand the time savings for law
enforcement, but by the time a prosecution is underway there's been
ample opportunity to present the card. MR. GUANELI said that's
true, and he would not object to removing the words "or
prosecution" on page 3, line 6. The important part is to allow
access at the investigative stage.
CHAIRMAN MILLER asked Mr. Smith if a concealed weapons permit shows
up in the department's APSIN report. MR. SMITH said it does.
CHAIRMAN MILLER asked if the medical marijuana registration cards
would show up. MR. SMITH said the logistics of downloading the
information from DHSS haven't been worked out but that is DPS's
intent.
CHAIRMAN MILLER moved to adopt Amendment No. 1 (on Senator Leman's
letterhead). SENATOR PEARCE asked if Amendment No. 1 had been
amended. CHAIRMAN MILLER said it had been amended to take care of
page 4, and to change the word "condition" to "symptom." Without
objection Amendment No. 1 was adopted.
Amendment No. 1 text follows:
Page 4, line 5
delete "explored"
insert "considered"
Page 4, lines 9-13
following "concluded that" on line 9,
delete through "concluded that" on line 12.
Page 4, line 4
change "condition;" to "symptom;"
SENATOR ELTON moved Amendment No. 2 (Luckhaupt K.1) and announced
that he had an amendment to Amendment No. 2. CHAIRMAN MILLER
objected for the purpose of addressing Senator Elton's amendment.
SENATOR ELTON amended Amendment No. 2 to delete "or prosecution" on
page 3, line 6, and to delete the remainder of Amendment No. 2
because the numbers are no longer in order.
Amendment No. 2 text follows:
Page 3, line 6:
Delete "or prosecution"
Without objection, Amendment No. 2 as amended was adopted.
SENATOR ELTON withdrew a proposed amendment labeled "K.3 Luckhaupt"
because Amendment No. 1 took care of K.3 by changing "explored" to
"considered." (Senator Elton never brought up amendment "K.2
Luckhaupt".)
SENATOR ELTON moved to adopt Amendment No. 3 (labeled "K.4
Luckhaupt).
CHAIRMAN MILLER objected for the purpose of discussion. SENATOR
ELTON explained Amendment No. 3 would delete the limit of one
patient per care giver unless other patients reside in the same
household as the care giver. He stated the restriction is overly
broad and may prevent efficiencies that may accrue to nursing homes
or to hospice organizations.
CHAIRMAN MILLER said he is more comfortable with the original
language because he is leery that one care giver may take advantage
of the system.
SENATOR ELTON argued that a care giver could have family members
located in several households and/or a nursing home. CHAIRMAN
MILLER noted it would be very rare for one care giver to have more
than one family member who needed to take medical marijuana. He
repeated that he is more comfortable with the original language.
SENATOR WILKEN suggested changing Amendment 3 by deleting lines 9
and 10 and inserting lines 6,7,8, 11, and 12 as a new subsection
(f). That would retain the restriction in regard to households but
expand the ability to provide patient care in a Hospice program.
DEAN GUANELI stated there is a practical, day-to-day difficulty
that law enforcement officers will encounter if one person is
allowed to care for more than one patient. Under SB 94, the
primary care giver can grow, possess, and transport one ounce plus
six live plants of marijuana per patient. The difficulty will
arise when a law enforcement officer has to contend with a care
giver who carries five ounces of marijuana because he/she is
providing for five people. The second issue is that a Hospice
problem may not exist. When a patient is in a Hospice care
situation, the patient is in possession of the marijuana, not the
Hospice worker, who may administer the medicine. In other words,
the Hospice worker will most likely not be the marijuana provider.
SENATOR ELTON asked if the affirmative defense provision would
require the care giver who is carrying five ounces of marijuana to
prove that he/she was providing it for five clients. MR. GUANELI
said that is correct but the law enforcement officers will not know
whether to confiscate the marijuana on the spot.
SENATOR WILKEN said, after hearing Mr. Guaneli, he decided to
withdraw his amendment to Amendment No. 3.
CHAIRMAN MILLER announced Amendment No. 3 was still before the
committee, and that he maintained his objection to it.
Amendment No. 3 (K.4 Luckhaupt) text follows.
Page 5, lines 9-12:
Delete "unless the primary caregiver or alternate caregiver
is simultaneously caring for two or more patients who reside in the
same household as the caregiver and are related to the caregiver by
at least the fourth degree of kinship by blood or marriage"
Insert ". Notwithstanding this limitation, upon the written
request of a patient, the department may list a person as the
primary caregiver for more than one patient if
(1) that listing would avoid unnecessary
hardship to the patient or
(2) the patient's care is being provided in a
hospice program licensed under AS 18.18"
There being no further discussion, a roll call vote was taken. The
motion to adopt Amendment No. 3 failed with Senators Pearce,
Wilken, and Miller voting "nay," and Senator Elton voting "yea."
SENATOR ELTON moved Amendment No. 4, labeled "K.5. Luckhaupt," and
explained that this amendment replaces language in the bill with
language that was proposed in regulation. The net effect will be
that it allows a patient who is on the registry to give marijuana
to another patient on the registry as long as there is no
compensation.
CHAIRMAN MILLER objected. The text of Amendment No. 4 is as
follows.
Page 11, lines 12-13:
Delete "the patient's primary caregiver and a primary
caregiver may deliver marijuana to the patient for whom the
caregiver is listed; or"
Insert
"(A) the patient's primary caregiver and a primary
caregiver may delivery marijuana to the patient for whom
the caregiver is listed; or
(B) another patient if there is not a charge for the
marijuana delivered; or"
SENATOR ELTON stated if we are creating something that helps to
make the initiative work then he cannot think of a reason that we
would not want two patients on the registry to share marijuana as
long as no compensation changes hands.
SENATOR WILKEN asked a representative of DPS to comment on
Amendment No. 4. DEPUTY COMMISSIONER SMITH said he would be
apprehensive to permit patients to share marijuana because it might
be difficult for one person to find out if the other is registered.
SENATOR PETE KELLY noted patients are not allowed to swap
prescription drugs.
MR. LINDSTROM said he does not believe that provision is reflected
anywhere in the regulations.
CHAIRMAN MILLER asked Mr. Guaneli if a registered user could be
busted by federal agents and be guilty of distribution if he/she
shared with another legitimate user. MR. GUANELI confirmed
marijuana is still a prohibited substance under federal law, and
although federal agents are unlikely to pursue cases involving
small amounts of marijuana, it does raise an interesting policy
question.
CHAIRMAN MILLER commented that the penalties are probably stiffer
for distributing marijuana, which is what care givers will be
doing.
A roll call vote was taken and Amendment No. 4 failed with Senators
Pearce, Kelly, Wilken and Miller voting "nay," and Senator Elton
voting "yea."
SENATOR ELTON moved Amendment No. 5, labeled "K.6. Luckhaupt."
SENATOR ELTON explained Amendment No. 5 changes the affirmative
defense to defense and it applies the same burden of proof on the
prosecution that accrues to most violations. CHAIRMAN MILLER
objected.
SENATOR WILKEN asked Mr. Guaneli to explain Amendment No. 5 in
layman's terms.
MR. GUANELI said with a defense, the state must prove, beyond a
reasonable doubt, that the defense does not exist, whereas with an
affirmative defense, the defense exists by a preponderance of the
evidence.
SENATOR KELLY noted if a drug pusher was busted and claimed he was
a care giver, under the defense standard, the state would be
required to disprove that he is a care giver.
SENATOR ELTON indicated if a person is not on the list, the state
has proof. MR. GUANELI said that is correct, however the care
giver may not have used the marijuana for that purpose. SENATOR
ELTON asked if a care giver will have to prove, under the
affirmative defense, that the 3/4 of an ounce of marijuana they are
carrying is for the patient. MR. GUANELI said yes, and that
ordinarily the care giver would have to provide evidence that
he/she was transporting the marijuana to the patient.
The text of Amendment K.6 follows.
Page 1, line 5:
Delete "Affirmative defense"
Insert "Defense"
Page 1, line 9:
Delete "an affirmative"
Insert "a"
Page 8, line 18:
Delete "an affirmative"
Insert "a"
The roll was called with Senators Kelly, Pearce, Wilken and Miller
voting "nay" and Senator Elton voting "yea." Amendment No. 5
failed to be adopted.
SENATOR WILKEN asked if DHSS is comfortable with the removal of the
requirement to see a physician every three months.
MR. ZANGRI replied yes, because it reflects the actual practice of
medicine in Bush Alaska where it is unlikely that a patient would
have access to a physician on a regular basis. Most patients are
treated by secondary practitioners. He noted most physicians will
have to re-evaluate a patient every year and they will probably
know whether the condition is subject to change over the course of
a year.
SENATOR WILKEN asked Mr. Finkelstein if he is bothered by the abuse
that could occur without the three month referral requirement. MR.
FINKELSTEIN said he is not because of the totality of the
requirements of the doctor, one being that the doctor and patient
must have a bona fide physician patient relationship. Second, a
doctor has to specify the nature of the patient's symptoms which
would become increasingly difficult without seeing the patient as
time goes on. A doctor also has to state that other medications
have been considered. He stated those requirements necessitate an
ongoing relationship, yet a three month requirement would be
problematic for some people.
SENATOR WILKEN asked Mr. Finkelstein if he is more concerned about
the dissemination of information from the registry rather than the
formation of a registry itself. MR. FINKELSTEIN responded that he
confined his remarks today to the use of information in
investigations, however members of AMR feel strongly that mandatory
registration is unfair. They feel if they have a doctor's
recommendation and decide not to sign up, they should have the
option of being left with the affirmative defense, which is what
the initiative provides.
SENATOR WILKEN asked Mr. Finkelstein what would happen under his
scenario if a police officer pulled a driver over on the road who
was carrying marijuana. MR. FINKELSTEIN said the way the
initiative is written, if the driver does not have a registry card,
he/she is subject to arrest. He noted while the registration
system might be described as optional, it is mandatory if one wants
to receive protection from arrest. Around the country no mandatory
registration exists; most places are striving for optional
registration.
TAPE 99-25, SIDE A
AMR strongly advises people to sign up under the existing law. He
questioned what will happen to the registry in the years when the
Legislature does not fund the system.
SENATOR WILKEN said if the driver was pulled over and did not have
a card, a problem would exist. MR. FINKELSTEIN said yes, and that
the officer will have to use his/her discretion to determine how to
deal with it.
DEPUTY COMMISSIONER SMITH said it is DPS's intent to check the
APSIN system to verify that the driver is a registered user, and if
so, let the driver go on his/her way. DPS desires mandatory
registration so that officers do not have to confiscate the
marijuana and/or physically arrest people who might not have a card
with them.
CHAIRMAN MILLER stated he thinks that the people who are true
marijuana users for medical reasons would want registration because
other users will try to use this law for their own purposes which
will get this law repealed faster than anything.
SENATOR WILKEN moved CSSSSB 94(HES), Version K, as amended from
committee with individual recommendations. SENATOR ELTON objected,
because the mandatory registration provision will discourage people
from registering and because the bill anticipates problems that
have not yet arisen. CSSSSB 94(HES) moved from committee on a 4-1
vote, with Senators Kelly, Pearce, Wilken and Miller voting "yea"
and Senator Elton voting "nay."
CHAIRMAN MILLER announced that two members of the committee will be
in Finance Committee meetings all day on Wednesday, therefore the
next Senate Health and Social Services Committee meeting would be
tentatively scheduled for 1:30 p.m. on Thursday for the purpose of
hearing SB 117, SB 61 and SB 167.
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