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.