Legislative Analysis
Analysis available at
http://www.legislature.mi.gov Page 1 of 5
Mary Ann Cleary, Director
Phone: (517) 373-8080
http://www.house.mi.gov/hfa
MEDICAL MARIHUANA ACT AMENDMENTS
House Bill 4834 (Substitute H-3)
Sponsor: Rep. Gail Haines
House Bill 4851 (Substitute H-2)
Sponsor: Rep. Philip M. Cavanagh
House Bill 4853 (Substitute H-1)
Sponsor: Rep. Ed McBroom
House Bill 4856 (Substitute H-1)
Sponsor: Rep. Ben Glardon
Committee: Judiciary
Complete to 2-29-12
A SUMMARY OF PROPOSED SUBSTITUTES FOR HOUSE BILLS 4834, 4851, 4853,
AND 4856
The bills would amend various acts related to medical marihuana to:
o Require a patient registry identification card to contain a photo ID.
o Require registry identification cards to be valid for two years.
o Require LARA to privatize portions of the application process for a registry ID
card.
o Revise confidentiality provisions to apply to private vendors.
o Define "bona fide physician-patient relationship" to include an in-person, physical
examination of the patient, and revise other definitions, as well.
o Place the penalty for selling marihuana in violation of registry identification card
restrictions within the sentencing guidelines.
o Regulate the transportation of medical marihuana in a motor vehicle and prescribe
penalties for a violation.
House Bill 4834
The bill would amend Section 6 of the Medical Marihuana Act (MMA) to require a photo
for the patient registry identification card, make the card valid for two years, require the
privatization of some of the registry process, and revise confidentiality provisions as
described in more detail (MCL 333.26426).
(Note: The Medical Marihuana Act defines "department" as the Department of
Community Health, but Executive Order No. 2011-4 transferred the Bureau of Health
Professions, which has oversight of the Medical Marihuana Program, from the
Department of Community Health to the Department of Licensing and Regulatory
Affairs.)
Photo for patient registry identification card
The bill would require an applicant, as part of the application for a registry identification
card, to submit two identical color photographs or submit a waiver allowing the Secretary Analysis available at
http://www.legislature.mi.gov HB 4834, 4851, 4853, & 4856 Page 2 of 5
of State to issue the Department of Licensing and Regulatory Affairs (LARA) a copy of
the photograph contained on the qualifying patient's driver license or state personal
identification card. If the applicant submitted a photograph, it must show the applicant's
current appearance, have been taken within the immediately preceding six months,
comply with the size requirements specified in the bill, and be a full-face, front view
against a plain, white or off-white background. In addition, the person's hair or hairline
could not be obscured by a hat or headgear, nor could the person wear dark or
nonprescription glasses unless medically necessary.
Expiration date of registry identification card
The bill would require a patient or caregiver registry identification card to expire two
years, instead of one year, after issuance.
Privatization
The bill would require LARA to enter into a contract with a private contractor to assist it
in performing its duties regarding issuing registry ID cards to qualifying patients and
caregivers. The contract could provide for assistance in processing and issuing registry
ID cards, but LARA would retain the authority to make the final determination as to
issuing the registry ID card. The contract would also have to preserve the confidentiality
of information in conformity with the bill's requirements.
Confidentiality
Currently, LARA must maintain a confidential list of the persons issued registry
identification cards. LARA is required to verify to law enforcement personnel whether a
registry ID card is valid but without disclosing more information than is reasonably
necessary to verify the authenticity of the card. This requirement would be deleted and
replaced with an expanded confidentiality requirement.
Under the bill, LARA could not allow any person access to any information about
patients in the confidential list of persons to whom LARA issued registry ID cards or
from whom an application had been received, or access to any information otherwise
maintained by the LARA concerning physicians who provide written certification and
primary caregivers.
The only exceptions would be for the following:
• Authorized LARA employees or of a contractor described above in the course of
their official duties.
• State or local law enforcement officers or officials, but only if: (1) the officer or
official provides a registry ID number and that officer or official is acting in the
course of official duties; or (2) the officer or official provides a name and a date
of birth or address for an individual and disclosure by the LARA is needed either
to confirm or refute the officer's or official's reasonable suspicion that a violation
of this act was committed by that individual or at that address. Analysis available at
http://www.legislature.mi.gov HB 4834, 4851, 4853, & 4856 Page 3 of 5
A contractor who violated the confidentiality provisions would be subject to existing
criminal penalties for disclosing information in violation of the act—a misdemeanor
punishable by not more than six months in jail and/or a fine of not more than $1,000.
[Note: Administrative Rule 333.121(2) provides that "[n]ames and other identifying
information made confidential under subrule (1) of this rule may only be accessed or
released to authorized employees of the department as necessary to perform official
duties of the department pursuant to the act, including the production of any reports of
non-identifying aggregate data or statistics."
According to Attorney General Opinion No. 7250 dated August 31, 2010, the rule
precludes the department (at that time, the Department of Community Health) from
giving a private vendor access to the necessary information. The attorney general
suggested as a remedy that the department either promulgate a new rule or issue an
emergency rule if appropriate, or that the Legislature amend or rescind the rule or
specifically amend the MMA to allow the department to pursue contracts with outside
vendors.]
House Bill 4851
The bill would amend the MMA (MCL 333.26423) to add a definition of the term "bona
fide physician-patient relationship" and revise the definitions of other terms. The bill
would define "bona fide physician-patient relationship" to mean a treatment or counseling
relationship between a physician and patient to which all of the following apply:
• The physician reviewed the patient's relevant medical records and completed a
full assessment of the patient's medical history and current medical and
psychological condition, including a relevant, in-person, physical examination of
the patient.
• The physician created and maintains records of the patient's condition in accord
with medically accepted standards.
• The physician has a reasonable expectation to provide follow-up care,
examination, and treatment to monitor the efficacy of the use of medical
marihuana as a treatment of the patient's debilitating medical condition.
• With permission by the patient, the physician notifies the primary care physician
of the patient's debilitating medical condition and certification for the use of
medical marihuana to treat that condition.
• The issue of whether the affirmative defense under Section 8 of the act applies
would be a question to be determined by the trier of fact (a jury or a judge in a
bench trial) if the person presents prima facie evidence of a bona fide physicianpatient relationship under the act.
The bill would also revise the definition of "enclosed, locked facility" to mean a closet,
room, or other comparable, stationary, and fully-enclosed area equipped with secured
locks or other functioning security devices that permit access only by a registered
primary caregiver or registered qualifying patient. (Underlining denotes changes.) Analysis available at
http://www.legislature.mi.gov HB 4834, 4851, 4853, & 4856 Page 4 of 5
In addition, the definition of "written certification" means a document signed by a
physician stating the patient's debilitating medical condition. The bill would also require
the written certification to include a statement that "the physician has completed a full
assessment of the patient's medical and psychological history and current medical and
psychological condition, including a relevant, in-person, physical examination."
House Bill 4853
The bill would amend the Code of Criminal Procedure (MCL 777.13n) to place the
penalty for a registered qualifying patient or caregiver who sells marihuana to an
unauthorized person within the sentencing guidelines. The current penalty is a felony
punishable by imprisonment for not more than 2 years or a fine of not more than $2,000,
or both, in addition to any other penalties for the distribution of marihuana. The person's
registry identification card would also be revoked.
The bill would specify that selling marihuana in violation of registry identification card
restrictions would be a Class G felony against the Public Trust with a maximum term of
imprisonment of two years.
House Bill 4856
The bill would add a new section to the Michigan Penal Code (MCL 750.474). Under the
bill, a person could not transport or possess medical marihuana in or upon a motor
vehicle or any self-propelled vehicle designed for land travel unless it is one or more of
the following:
• Enclosed in a case.
• Carried in the trunk of the vehicle.
• Inaccessible from the interior of the vehicle.
A person who violated the bill's provision would be guilty of a misdemeanor punishable
by imprisonment for not more than 93 days or a fine of not more than $500, or both.
"Medical marihuana" would mean marihuana regulated under the Michigan Medical
Marihuana Act (MCL 333.26421-333.26430).
FISCAL IMPACT:
House Bill 4834 would have the following fiscal impacts on the Bureau of Health
Professions (BHP) in the administration of the Medical Marihuana Program (MMP).
(1) The BHP has procured a high-volume printer (costing approximately $800,000) that
will be able to print registry identification cards with the photograph that, presumably,
would be required on the cards under House Bill 4834. However, HB 4834 would create
additional costs for the BHP in the digitization of photographs submitted. Further, the
BHP is uncertain how to verify that a submitted photograph was taken within the past six
months and anticipates that such verification could create additional costs. Analysis available at
http://www.legislature.mi.gov HB 4834, 4851, 4853, & 4856 Page 5 of 5
(2) By extending the period during which a registry identification care is valid from 1
year to 2 years, House Bill 4834 would reduce both the annual revenue generated by and
annual expenditures for the MMP by the BHP. Revenue would likely decline by about
half from an estimated $7.5 million in FY 11-12. Expenditures would also likely decline
by about half from an estimated $3.9 million in FY 11-12. Thus, the extension of the
renewal period for registry identification cards would likely have a neutral fiscal impact
on the BHP as long as legal requirements for the MMP remain constant.
(3) Finally, House Bill 4834 requires the BHP to contract with a private entity to "assist
the Department in performing its duties under this section." The Department of
Community Health issued a report on March 1, 2010, which estimated the costs of
outsourcing the processing of data-entry and creation of registry identification cards. The
outsourcing estimates were based on annual program cost projections from the BHP and
informal information submitted by two private vendors. The report estimated that
outsourcing portions of the MMP would exceed the cost of retaining the program within
the BHP by between $212,162 and $1,224,162 annually.
House Bill 4851 would not have a significant fiscal impact on the Bureau of Health
Profession (BHP) in the administration of the Medical Marihuana Program (MMP) since
the definitions which it amends do not substantively change the BHP's administration of
the act.
House Bill 4853 adds the felony violation outlined in MCL 333.26424 related to the sale
of medical marihuana to persons without valid identification cards to the sentencing
guidelines statute. Since the violation already exists in current law, the bill would have
no fiscal impact on the State or on local units of government.
House Bill 4856 creates a new misdemeanor offense for transporting or possessing
medical marihuana in a vehicle under certain circumstances. To the extent that the bill
leads to an increase in misdemeanor convictions, it could increase local corrections costs.
The average cost of incarceration in local jails and of misdemeanor probation supervision
varies by jurisdiction. Any increase in penal fine revenues would increase funding for
local libraries, which are the constitutionally-designated recipients of those revenues.
Legislative Analyst: Susan Stutzky
Fiscal Analyst: Paul Holland
Bob Schneider
)
by adding section 474.
