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DHHS Releases Medical Marijuana Rules
Impact of New Rules for Maine's Medical Use of Marijuana Program
The majority of rule changes by the Department of Health and Human Services that took effect on December 31, 2012, followed the intent of Maine's Medical Marijuana law as passed by Citizen's Initiatives, and amended by LD1296 in 2011.
Many of the issues raised by members of the Public at the 2012 hearings on the proposed rule changes appear to have been effectively integrated into the new rules.
Certain sections of the new rules appear to be major substantive changes, however, and go against the intent of the law to allow safe affordable access to those people most in need of the benefits of medical cannabis, and ensure patient privacy.
HIGHLIGHTS OF CHANGES
Section 2.7.1 requires outdoor growing spaces to be surrounded by a locked privacy fence at least 6 feet high that obscures the view of the marijuana to discourage theft and unauthorized intrusion. When this height requirement is inconsistent with local ordinances regarding fences, deference is given to local ordinance height requirements. Qualifying patients or caregivers must comply with local ordinances, if any, regarding boundary setback requirements.
Section 126.96.36.199 prohibits pesticide use. There are no pesticides authorized for use on marijuana by Maine law, and unauthorized application of pesticides is unlawful under these rules.
Section 188.8.131.52 allows a patient to designate a registered caregiver when the patient is absent and unable to care for his or her marijuana plants, in the qualifying patient’s enclosed locked facility without pay and for a time-limited period. The qualifying patient must give a completed department-approved designation form that includes the designation is without pay and the specific time-limited dates to the designated registered primary caregiver prior to taking temporary care of the marijuana plants.
Section 184.108.40.206 allows a qualifying patient to possess an incidental amount of marijuana in addition to the patient's 6 flower plants. It defines the “Incidental amount of marijuana per patient” to mean up to 12 female nonflowering marijuana plants; an unlimited amount of marijuana seedlings, seeds, stalks and roots; and up to eight (8) pounds of harvested dried unprepared marijuana in varying stages of processing that are not included when calculating the “allowable useable amount of marijuana.”
Section 1.17.5 defines “Seedling” as a marijuana plant that has no flowers (buds), and is less than 12 inches in height and diameter.
Section 2.9 states that a person who possesses female nonflowering marijuana plants, mature marijuana plants, prepared marijuana, or harvested dried unprepared marijuana in varying stages of processing in excess of the limits provided in these rules must forfeit the excess amounts to a law enforcement officer. The section allows a law enforcement officer to remove all excess female nonflowering marijuana plants, mature marijuana plants, prepared marijuana, and harvested dried unprepared marijuana in varying stages of processing in order to catalog the amount of excess marijuana.
The following rule changes place undue burdens on those Maine patients most in need of safe affordable medicine:
PATIENTS PROHIBITED FROM CULTIVATING
Section 4.11 creates new classes of patients who are prohibited from growing their own medical marijuana.
Section 4.11.3 bans patients who are legally defined as “incapacitated” from cultivating.
A person's incapacitated status is in no way indicative of their ability to safely grow plants.
For many incapacitated patients, gardening is one of the most effective forms of therapy.
Furthermore, a significant portion of incapacitated people live on fixed income and do not have excess income to purchase medical marijuana from a dispensary or caregiver. These same people may have access to a small space to grow their medicine, and they pose no threat to themselves or others by being allowed to do so. If low-income patients are banned from cultivating their own medicine, many will have to no choice but to depend on higher-risk pharmaceutical medications, increasing the burden on taxpayers.
Section 4.11.4 bans patients who are registered in a hospice or nursing facility from cultivating.
It is unclear whether any patients in a hospice or nursing facility are currently cultivating for themselves, and it is unclear what has created the need for this particular prohibition.
Section 2.7.1 requires outdoor growing spaces to have a privacy fence at least 6 feet high that obscures the view of the marijuana to discourage theft and unauthorized intrusion. When this height requirement is inconsistent with local ordinances regarding fences, deference is given to local ordinance height requirements. Qualifying patients or caregivers must comply with local ordinances, if any, regarding boundary setback requirements.
Section 220.127.116.11.2.1 requires caregivers to tag all mature plants with the patient's name.
This requirement creates potential violations of patient privacy.
HOSPICE AND NURSING FACILITY RESTRICTIONS
Section 11.1 creates a major list of restrictions on the ability for patients in a hospice facility from having access to their medicine.
The rule clarifies that hospice facilities have the discretion on whether to allow patients with medical marijuana recommendations to have access to that medicine while in the facility. Many hospice facilities around Maine have patients with medical marijuana recommendations and are taking steps to accomodate the patients, and treat the doctor's recommendation as they would for any other recommended therapy.
Section 18.104.22.168 requires a facility to maintain a separate set of records from the patient's medication administration record. The medical marijuana file must include an inventory record, documentation of marijuana administration and the relief provided.
Section 11.6 prohibits patients from keeping marijuana in their room or on their person.
The rule states that medical marijuana is a danger to other residents, though it is unclear how it is more dangerous than a bag of sugar in a facility with diabetics. Many patients using medical marijuana in hospice use it in the form of a salve or tincture and are able to access it when they are in pain, needing sleep, or otherwise in need of its benefits. Unlike Tylenol, a person will not overdose or be in serious danger from taking too much tincture or using too much salve.
Section 11.7 requires that marijuana in a hospice facility must be kept under doble lock and inventoried by two staff persons, who must register with the DHHS and have MMMP registry identification cards.
Section 11.8.1 requires patients in a hospice facility to have a DHHS registry identification card.
Maine's medical marijuana law as amended in 2011 by LD 1296 clearly states that registration is optional, in order to protect patient privacy. Under current law, a valid Doctor's recommendation for medical use of marijuana is all that is required for protections as a patient under Maine's medical marijuana law. One's status as a patient in a hospice facility should not violate one's right to privacy.
Section 11.8.2 requires that only a registered facility staff member can administer medical marijuana to a patient, and prohibits a patient's cultivating caregiver from administering medical marijuana to the patient in the facility.
The cumulative impact of these regulations on hospice and nursing facilities will have the effect of restricting access to medical marijuana by Maine people most in need of its benefits.
Nursing facilities are already overburdened and often understaffed, and these cumbersome new requirements for separate records, extra staff requirements to access and administer medicinal marijuana, and prohibitions on patient privacy and safe access, will likely result in many facilities making the decision to simply not allow any access to medical marijuana to Maine patients most in need of it's benefits.
PUBLIC SPEAKS OUT ON PROPOSED DHHS RULES ----------------------------------------------------------------
Over 175 people packed the State House on Monday, August 16, to express discontent, grief and sometimes anger with proposed restrictions on the ability of patients and caregivers to legally cultivate medical marijuana. The proposed rules from the Department of Health and Human Services would severely restrict the ability of patients to legally cultivate their medicine outdoors. Cultivation would not be allowed within 25 feet of any property boundary, and plants would be required to be enclosed by an 8 foot privacy fence, with motion sensitive lighting. The site would have to be at residence where the grower is living, and the department could require unspecified “other security measures” at any time.
In addition to regulations that would effectively shut down legal outdoor growing for patients, the proposed rules would also restrict
the number of vegetative plants to 12, with no working definition for seedlings, which would make it very difficult for patients to sustain a viable crop to serve their needs.
The proposed DHHS rules would also create major substantive changes to Maine's medical marijuana law by adding classes of Maine patients prohibited from cultivating for themselves, including those who are homeless, in hospice, or legally defined as incapacitated.
These groups of patients are some of the people most in need of safe medicine, and least able to afford any additional costs, and who often live in situations where they can't cultivate at their residence. Currently landowner's have agreements with patients who don't have a land base, to allow them to grow their medicine in an enclosed, locked area.
The definition of “incapacitated” under Maine law is very broad, and includes any person who is impaired by reason of mental illness,
mental deficiency, physical illness or disability. All people defined as incapacitated fall under the jurisdiction of the DHHS. Whether a
person meets the legal definition of incapacity is determined by the Probate Court.
Medical marijuana patient Mike Reynolds of Lewiston pointed out that these changes ignore the fact that growing one's medicine is a therapeutic activity that is proved to be very beneficial to people who are otherwise restricted in their activities due to physical or mental disabilities, as was recently documented on National Public Radio in the article “Can Gardening Help Troubled Minds Heal?"
The sponsor of Maine's 2011 Medical Marijuana bill, LD 1296, Representative Deb Sanderson, explained, “The purpose of LD1296 was ...to restore the intent of the Citizen's Initiative of 2009, to increase legal access to patients whose physician has recommended the use medical marijuana to alleviate the symptoms of debilitating disease or illness. ...There are also a couple of areas in the proposed rules that are incredibly vague, that can and most likely will lead to confusion and misinterpretation when a caregiver or patient reads the rules, and when lawmakers read the rules. It must be clear to maintain the integrity of the program, to ensure that law enforcement officials have clear definitions of what is and isn't legal.”
Sanderson continued, “I appreciate the Department's willingness to meet with me prior to the Public hearing here, and to work out the definition of an enclosed, locked facility to also include outdoor cultivation. That certainly was the intent of the language, and we certainly spent much time and energy going over it during the work session process before passage of LD 1296.”
There were questions about the legality of the process of the rule-making, with caregiver John Stuart explaining how Title 5 under Maine Administrative Law requires there to be a Public Hearing before the committee of jurisdiction if the Department is to make major substantive rule changes. Stuart explained how changes the DHHS has already gone beyond its rule making authority, when it set a $300 annual registration charged for caregivers, and how the new proposed rule would create major substantive changes contrary to the intent of Maine's medical marijuana law as passed by Citizens Initiatives in 1999 and 2009.
Dr. Dustin Sulak from Maine Integrative Health stressed how many conditions could be treated by the use of medical cannabis,
referencing medical studies out of Israel and Canada proving that cannabis can be the most effective treatment for Post Traumatic Stress Disorder, which is not currently a qualifying condition for use of medical marijuana in Maine.
Sgt. Ryan Begin, a combat wounded veteran from Jackman spoke of the need for rules that allow a doctor to decide what conditions qualify for use of medical marijuana, instead of creating a new bureaucratic process for adding conditions. He commented, “I am living proof that medical marijuana is beneficial in the treatment of PTSD. Every day veterans are returning home from combat and once they return the face their biggest battle, dealing with PTSD. The VA is shoving pills at them, and are only adding to the difficulty of returning to a non-combative society. The state of Maine needs to do its part to help out our existing veterans and the ones who are returning home seeking help.”
“These changes would drastically change the way people have been taking care of themselves for the past two years,” said Paul
McCarrier, legislative liaison for Medical Marijuana Caregivers of Maine. “Its ironic that the Public Hearing is today, because a year
ago to the day the Department, under the former Division of License and Regulatory Services Director Cathy Cobb, held a stakeholder
meeting to discuss the up coming rules, which were never implemented. Before any rules take effect, there needs to be a working group that includes patients and caregivers.”
Republican Representatives Heather Sirocki and Deb Sanderson, along with Democratic Rep. Mark Dion, also called for a group of
stakeholders to meet and develop rules that would be in line with the intent of Maine's medical marijuana law, allow outdoor cultivation, and prioritize patient access to safe medicine.
The DHHS Division of Licensing and Regulatory Services will accept written comment on the marijuana rule changes until Aug. 23rd at 5 p.m.
DHHS Information: http://www.maine.gov/dhhs/dlrs/rulemaking/proposed.shtml#anchor416676
More coverage of the August 13 Public Hearing at:
Federal Government to Cut Benefits to Elderly & Disabled Medical Marijuana Patients
Mal Leary covers how the Federal Government's Department of Agriculture is cutting food stamp benefits for elderly and disabled medical marijuana patients in Maine.
MSHA Patient Housing
Maine State Housing Authority Threatens to Force Patient to Choose Between Medication and Housing
WABI Channel 's 5 Rob Pointdexter helps tell the story of Don LaRouche of Madison. Check out the story here.