October 6, 2008 – SB 5798 allows recommendations by health care professionals
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State of Washington 61st Legislature 2009 Regular Session

By Senators Kohl-Welles, McCaslin, Keiser, and Pflug

AN ACT Relating to medical marijuana; and amending RCW 69.51A.005, 69.51A.010, 69.51A.030, and 69.51A.060.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 69.51A.005 and 2007 c 371 s 2 are each amended to read as follows:

The people of Washington state find that some patients with terminal or debilitating illnesses, under their physician’s care, may benefit from the medical use of marijuana. Some of the illnesses for which marijuana appears to be beneficial include chemotherapy-related nausea and vomiting in cancer patients; AIDS wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain.

The people find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician’s professional medical judgment and discretion.

Therefore, the people of the state of Washington intend that:

Qualifying patients with terminal or debilitating illnesses who, in the judgment of their ((physicians)) health care professionals, may benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana;

Persons who act as designated providers to such patients shall also not be found guilty of a crime under state law for assisting with the medical use of marijuana; and

((Physicians)) Health care professionals also be excepted from liability and prosecution for the authorization of marijuana use to qualifying patients for whom, in the ((physician’s)) health care professional’s professional judgment, medical marijuana may prove beneficial.

Sec. 2. RCW 69.51A.010 and 2007 c 371 s 3 are each amended to read as follows:

The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) “Designated provider” means a person who:

(a) Is eighteen years of age or older;

(b) Has been designated in writing by a patient to serve as a designated provider under this chapter;

(c) Is prohibited from consuming marijuana obtained for the personal, medical use of the patient for whom the individual is acting as designated provider; and

(d) Is the designated provider to only one patient at any one time.

(2) “Health care professional,” for purposes of this chapter only, means a physician licensed under chapter 18.71 RCW, a physician assistant licensed under chapter 18.71A RCW, an osteopathic physician licensed under chapter 18.57 RCW, an osteopathic physicians’ assistant licensed under chapter 18.57A RCW, or an advanced registered nurse practitioner licensed under chapter 18.79 RCW.
(3) “Medical use of marijuana” means the production, possession, or administration of marijuana, as defined in RCW 69.50.101(q), for the exclusive benefit of a qualifying patient in the treatment of his or her terminal or debilitating illness.

(((3))) (4) “Qualifying patient” means a person who:

(a) Is a patient of a ((physician licensed under chapter 18.71 or 18.57 RCW)) health care professional;

(b) Has been diagnosed by that ((physician)) health care professional as having a terminal or debilitating medical condition;

(c) Is a resident of the state of Washington at the time of such diagnosis;

(d) Has been advised by that ((physician)) health care professional about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that ((physician)) health care professional that they may benefit from the medical use of marijuana.

(((4))) (5) “Terminal or debilitating medical condition” means:

(a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or

(b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or

(c) Glaucoma, either acute or chronic, limited for the purpose of this chapter to mean increased intraocular pressure unrelieved by standard treatments and medications; or

(d) Crohn’s disease with debilitating symptoms unrelieved by standard treatments or medications; or

(e) Hepatitis C with debilitating nausea or intractable pain unrelieved by standard treatments or medications; or

(f) Diseases, including anorexia, which result in nausea, vomiting, wasting, appetite loss, cramping, seizures, muscle spasms, or spasticity, when these symptoms are unrelieved by standard treatments or medications; or

(g) Any other medical condition duly approved by the Washington state medical quality assurance commission in consultation with the board of osteopathic medicine and surgery as directed in this chapter.

(((5))) (6) “Valid documentation” means:

(a) A statement signed by a qualifying patient’s ((physician)) health care professional, or a copy of the qualifying patient’s pertinent medical records, which states that, in the ((physician’s)) health care professional’s professional opinion, the patient may benefit from the medical use of marijuana;

(b) Proof of identity such as a Washington state driver’s license or identicard, as defined in RCW 46.20.035; and

(c) A copy of the ((physician)) health care professional statement described in (a) of this subsection shall have the same force and effect as the signed original.

Sec. 3. RCW 69.51A.030 and 2007 c 371 s 4 are each amended to read as follows:

A ((physician licensed under chapter 18.71 or 18.57 RCW)) health care professional shall be excepted from the state’s criminal laws and shall not be penalized in any manner, or denied any right or privilege, for:

(1) Advising a qualifying patient about the risks and benefits of medical use of marijuana or that the qualifying patient may benefit from the medical use of marijuana where such use is within a professional standard of care or in the individual ((physician’s)) health care professional’s medical judgment; or

(2) Providing a qualifying patient with valid documentation, based upon the ((physician’s)) health care professional’s assessment of the qualifying patient’s medical history and current medical condition, that the medical use of marijuana may benefit a particular qualifying patient.

Sec. 4. RCW 69.51A.060 and 2007 c 371 s 6 are each amended to read as follows:

(1) It shall be a misdemeanor to use or display medical marijuana in a manner or place which is open to the view of the general public.

(2) Nothing in this chapter requires any health insurance provider to be liable for any claim for reimbursement for the medical use of marijuana.

(3) Nothing in this chapter requires any ((physician)) health care professional to authorize the use of medical marijuana for a patient.

(4) Nothing in this chapter requires any accommodation of any on- site medical use of marijuana in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking medical marijuana in any public place as that term is defined in RCW 70.160.020.

(5) It is a class C felony to fraudulently produce any record purporting to be, or tamper with the content of any record for the purpose of having it accepted as, valid documentation under RCW 69.51A.010(6)(a).

(6) No person shall be entitled to claim the affirmative defense provided in RCW 69.51A.040 for engaging in the medical use of marijuana in a way that endangers the health or well-being of any person through the use of a motorized vehicle on a street, road, or highway.

— END —

COMPLYING WITH THE 60 DAY RULE FOR MARIJUANA PATIENTS IN WA

WA Department of Health Rules now define the 60 Day Supply limit as up to 15 plants and 24 ounces dried medicine. Here are some ideas on how to grow medical cannabis legally, without the risk of arrest.

Variables:

Cannabis is a hardy weed that grows vigorously. If you throw a few seeds on the ground in June, and pray for rain, you might just find a huge bush of pot flowers in the fall. But that wild mess of green vegetable matter will definitely not be suitable for medical use by terminally ill patients. The orderly production of fruiting plants is much easier to plan than to execute, and the cultivation of cannabis for medical use is a fine art that requires years of experience to master. The following profiles on potential yields presume the grower already has the prerequisite education and expertise in cannabis cultivation. Novice cannabis growers will not be able to replicate these numbers in most cases.

The assortment of varieties of medical cannabis is another uncontrolled variable. Some of the most potent marijuana strains are derived from crosses between the Indica and Sativa varieties which tend to have greater stem length creating slightly less flower nodes, and therefore less finished medicine than the pure Indica varieties that are usually preferred for indoor production. (Tall Sativa strains are more suitable for outdoor gardens, which are not specifically covered here.) The yield estimates given may have significant variation depending on the varieties and methods employed.

Patient use:

The issue of patient use is separate from but fundamental to a realistic understanding of these limits on cultivation. In service with marijuana patients in and around Seattle, I have conducted a survey through patient self-reports in written correspondence incorporated into the medical records of more than one hundred Lifevine members in the Seattle area. This patient population is comprised of approximately 50% HIV/AIDS patients with the remaining categories of Cancer, Crohn’s, epilepsy, Hepatitis C, Intractable pain, multiple sclerosis, and other illnesses accounting for the other half, Hepatitis C being the second most common ailment in this population. From this and other studies I have conducted including years of interviews with legally qualified patients in WA, OR, CA, and MT, I can describe the range of use of the overall population in a bell curve.

In most cases, marijuana patients use cannabis every day, though finances and availability may forestall their consumption. A few patients may use as little as a gram or even a half of a gram per day. That percentage is as rare as the most copious users who may use more than an ounce per week. Though sources have claimed that some patients may use as much as one ounce or more per day, I find that theoretical notion unrealistic. Two or at most three ounces per week are the highest amounts I have personally known in my decade of research on the subject. On average, the middle-range of marijuana consumption by qualified patients is usually 14 to 28 grams per week of high-quality cannabis. Again, some may need more due to potency issues as well as the tolerance factor that allows increased consumption with repeated exposure leading to a diminishment of the psychoactive effects. For convenience, we shall presume the average patient, if given the availability, will consume up to one full ounce per week, IE: eight weeks supply equals eight ounces of dried flowers.

Cultivation Profiles:

Examples given here are general and do not account for the many pitfalls and hardships encountered by novice marijuana growers. These estimations presume complete success in all stages and have no margin for error. Without a doubt, maintaining a continuous supply for a typical cannabis patient with only 15 plants is a technical feat not to be accomplished without a huge investment of planning and effort.

One must first obtain marijuana plants, which may itself be a somewhat daunting task. If starting with seeds, they must be sprouted and grown to adult maturity to cull the males. Medical cannabis is almost universally “sensimilla” (without seeds) because the potency of the cannabis is increased when female plants are not pollinated. That “sexing” process can take two to three months. During that period, a law-abiding grower would have to “sex” only 15 plants, and would be forced to destroy half–the average number of males. (This is one area where a physician could not be called to testify on a botanical question if the defendant needed to justify the possession of 30 plants that were intended to be culled long before a potential harvest.)

Any sort of meaningful breeding program is unworkable with only 15 plants in the garden. (Realistically, breeding programs can only be undertaken by patient groups under this new law.) For simplicity of argument, we presume the patient may obtain one female plant through a seedling process or another source, and then must grow that single plant to generate progeny through cloning, the most common method of propagation.

Profile 1:

One mother plant provides the source of 14 more. The patient requires 8 ounces of marijuana in a 60 day period. It will take 90 days to grow those 14 small plants large enough to yield slightly more than one half ounce of medicine each, totaling the required 8 ounces. However, because it takes 90 days to grow a 60 day supply in this method, the patient fails to maintain a constant supply.

Profile 2:

One plant provides the source of 14 more, and again the patient requires 8 ounces per 60 days. If the growing time is increased from 90 to 120 days, it is possible for the experienced grower to produce 16 ounces or more of finished medicine. Thus the patient is able to maintain a constant supply, except for the small matter of the next generation. In order to insure the next cycle is on track, at least one plant must provide the next set of starts, and those must be cloned and rooted while the previous 14 are almost ready for harvest. (This is another area where a testifying physician could not answer a botanical question if a patient needed to justify the possession of 14 large plants and 14 small starts during the short period where rooting and the final weeks of flower development could overlap.) If the grower is a strong expert who has overcome the many pitfalls and difficulties associated with producing huge plants, it is possible to produce two or more ounces per plant in a 120 day period. Because there is an additional allowance of 24 ounces finished product, it is even possible for the expert grower with average needs to maintain a 60 day supply while possessing only 15 plants. However, there is also the risk of exceeding the 24 ounce limit by producing 14 plants bearing two ounces each totaling 28 ounces, or more. A complication is presented in this method when the patient requires more than one ounce per week. In that case, the grower might not be able to maintain a constant supply without exceeding the limit.

Profile 3:

One plant provides the source of 14 more, and again the patient requires 8 ounces per 60 days. However, in this example, the patient does not want to wait 4 or 5 months for harvest. The grower propagates 7 starts at a time aiming for a two-legged cycle. (This method requires at least two separate grow rooms to accommodate the two stages of development.)
7 plants grown under 1000 Watt lights, with proper pruning and staking, may produce the 1.15 ounces required to satisfy the 8 ounce requirement in a 100 day period of growth. The second 7 plants must then enter the cycle about 30 to 40 days after the first 7 to develop another 8 ounces for the following 60 day period, ad infinitum. Because of the allowance of 24 ounces dried medicine to be possessed in conjunction with the live plants, it is possible to place the second set sooner than 30 days after the first set of 7, thereby increasing the second cycle’s yield at harvest, potentially leading to a surplus under optimum conditions. The technique is not as complicated as it may seem, but insuring precise yield results can only be accomplished through experience.

The cycling of cannabis plants through three stages of development, IE: small starts, mid-size vegetative plants, and larger flowering plants, is clearly the most rapid and most productive method. However, the technique requires ample floor space, drainage, air filtration and venting, management of growing media, and of course, at least three high-voltage light systems. Rent, electricity, hardware selection, installation and maintenance, and time-consuming labor all add up to a huge burden few severely ill individuals can bear.

Profile 4:

When a group of five, ten, or more patients pool their resources and cultivate cannabis together as one legal entity, the practical difficulties associated with plant limits described above are largely obviated. Due to the cost and time commitment needed to produce the amounts of medicine listed above, many patients have already learned to subscribe to the group-grow, or “p-patch” principle. In group gardens, 15 plants per patient is quite sufficient. However, in group gardens, the most important limit to consider is the federal threshold of 100 plants. In federal court, possession of more than 99 plants carries a five-year mandatory minimum sentence, regardless of medical use.

Conclusions:

In order to live by the new DOH Rules, cannabis cultivators must have a strong command of this little-known subject. In virtually every example, first-time growers do not produce large amounts of high-quality medicine. On the other hand, there are also a few cases where a novice has inadvertently over-planted and produced far more than they intended. The new DOH Rules are a challenge, but livable given adequate planning and effort to avoid the numerous difficulties and risks involved. While it is reasonable to expect patients to comply with state regulations, it is also reasonable to show some leniency when investigating marijuana gardens. Officers should remember that this is a “presumptive” limit that may be overcome with evidence of a greater need.

Martin Martinez, cannabis expert of Washington State-Source.

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