HELENA — Some key legislators met with Gov. Brian Schweitzer's chief of staff Thursday to discuss his suggested amendments to a restrictive medical-marijuana passed by the Legislature — changes that would relax some of the measure's restrictions on selling and distributing the drug.
Most members of the Senate-House conference committee on the bill met Thursday morning with Vivian Hammill, Schweitzer's chief of staff, about the governor's suggested amendments to Senate Bill 423, by Sen. Jeff Essmann, R-Billings. SB423 has passed both the Senate and House.
On Wednesday, Schweitzer told the Gazette State Bureau that he believes the bill is "unconstitutional on its face" and needed some changes.
Some of Schweitzer's suggested amendments would make major changes in the bill if adopted.
One significant change would allow medical marijuana providers (which are now called caregivers) to charge patients for their products. SB423 would have squeezed any profits out of the booming medical marijuana industry by requiring providers to furnish marijuana to patients without compensation.
Another major change proposed by Schweitzer would allow medical marijuana providers and manufacturers to provide medical pot or marijuana products for 25 patients, or more than eight-fold increase than three-patient limit in SB423.
After the meeting, Essmann said, "Not everything that was in the the set of draft amendments is agreeable to us. On the other hand, there were acceptable suggestions on a number of points."
He did not elaborate.
Although Thursday may be the final day of the 2011 Legislature, Essmann said there is enough time left for lawmakers to approve some of the changes suggested by Schweitzer if they choose to do so.
If Schweitzer receives SB423 before the Legislature adjourns, he is allowed to make amendatory vetoes to the bill that lawmakers will get a chance to accept or reject.
If he receives the bill after the Legislature has left town, Schweitzer's options are limited to signing the bill, vetoing it or letting it become law without his signature.
In a draft amendatory veto letter to legislators, Schweitzer called SB423 "disappointing" and said he preferred the bill in its original form before it was amended many times.
He said HB423 does have some positive provisions addressing the needs of law enforcement and local government.
But he criticized the bill for not licensing marijuana providers and laboratories and no genetic tracking of medical marijuana to help prosecute people who may illegally divert marijuana to people who aren't cardholders.
"It abruptly shuts down the provider industry effective July 1, 2011, eliminates the jobs associated with the industry and makes access to medical marijuana very difficult for vulnerable patients," Schweitzer said. "More importantly, the content of the current bill ignores over 40 hours of compelling testimony by the public describing patients who are suffering terribly and their reliance on ‘caregivers,' now known providers in Senate Bill 423."
These are suggested changes to Senate Bill 423 from Gov. Brian Schweitzer, made public in a draft letter Thursday:
--Increase the number of cardholders for whom medical marijuana providers or manufacturers may provide products, from the three to 25 people.
"I believe SB423 makes access to medical marijuana far too difficult for patients, many of whom are suffering chronic and severe illness and do not have the physical or financial ability to grow their own marijuana to treat their debilitating condition," Schweitzer said. "Patients must be able to obtain medical marijuana from legitimate sources with a reliable product."
He said he's confident the 25-patient limit will "prevent the large grow operations that boomed under the current law."
--Remove the restriction on providers from making a profit for providing medical pot or marijuana products. SB423 would prohibit patients for paying providers for growing marijuana for them, although patients could pay the providers' state licensing fees.
"My amendments do allow a provider to charge for their plant products and lift the no-profit restriction from the bill," he said.
--Allow a provider to be both a grower and manufacturer of marijuana-infused products.
"There has been no testimony that this now common practice has been a problem," he said.
--Increase the number of patients that a physician could recommend medical marijuana before triggering a review by the state Board of Medical Examiners.
The bill provides that if a physician recommends in a 12-month period that more than 15 patients receive medical marijuana, the Board of Medical Examiners would conduct a review of the doctor, at the physician's expense. Schweitzer would raise that threshold to 50 patients per doctor, which he said is less than 5 percent of the average Montana physician's caseload.
The 50-patient limit, he said, "will still certainly curtail the number of cardholders."
--Require two physicians, rather than one, for a minor to be certified to be treated with medical marijuana in an edible form or topical cream.
--Revise the bill to address constitutional problems concerning the medical marijuana patient's privacy. He said the Montana Constitution guarantees citizens with the right to privacy, including those who register for medical marijuana. He said the requirement of SB423 requires cardholders' names and addresses to be provided to local law enforcement by the Department of Public Health and Human Services.
"The blanket disclosure requirement in the bill would never survive the strict scrutiny stand for invading a patient's right to privacy," he said.
What's more, Schweitzer said the disclosure of cardholders also directly violates both the Montana Government Health Care Information Act and the federal Health Insurance Portability and Accountability Act (HIPAA).
"Handing over a list of cardholders to law enforcement is unfair to vulnerable patients who legitimately qualify for a card," he said. "I fear it would drive those patients to the illegal market for marijuana."
--Change the bill so as not to allow law enforcement unlimited access, without permission or warrant, to the private homes of cardholders who grow their own marijuana.
"Patients who grow their own plants were not the genesis of any of the problems that arose under the current law and should not now be subject to warrantless searches," Schweitzer said. "If law enforcement officers believe a patient is diverting their marijuana or growing beyond the allowed limits, they should properly investigate the matter, gain access through consent or through a search warrant."
His amendments would permit unannounced inspections of providers and manufacturers by the Department of Public Health and Human Services and law enforcement during normal business hours.
--Transfer the revising authority for approving a new medical condition for eligibility for medical marijuana treatment from the Legislature to the Department of Public Health and Human Services.
--Provide for "a more rational transition time" for providers to register and comply with the new law. He would make new effective date for some provisions Oct. 1 and for others July 1.
--Require providers who grow and manufacture marijuana products to register their location with the Department of Public Health and Human Services.
--Give the department rule-making authority to enable cardholders to receive a list of medical pot providers in a particular area.
"Given that SB423 prohibits advertising and storefronts may be prohibited by local jurisdictions, it is essential patients are able to find a provider," Schweitzer said.
--Give the Department of Public Health and Human Service authority to adopt rules regarding the transportation, possession of samples and testing and labeling of marijuana by laboratories around Montana.
"Laboratories have been receiving, testing and labeling marijuana under the current law and doing so protects the patients in titrating proper does and assists the medical community with scientific information about the value of particular strains on specific debilitating conditions," he said. "It also may help us in the future with tracking marijuana and prosecuting illegal activity."