WA House HCW - Committee Meeting
(February 4, 2021)

Here are some observations from the Thursday February 4th Washington State House Health Care and Wellness Committee (WA House HCW) meeting.

My top 3 takeaways:

• Staff and sponsor explained a bill to extend medical cannabis patient arrest protections to those who obtained a doctor’s authorization but chose not to register in the State’s patient database.
  • In 2015, SB 5052 merged the state’s adult use and medical cannabis markets while making several changes that included expanded privileges for medical cannabis patients who chose to register with the Washington State Department of Health (DOH) patient database. Aside from arrest protections, registered patients were permitted to possess more cannabis and plants and were exempt from paying sales tax on retail cannabis purchases.
    • A bill to exempt registered patients from paying the 37% excise tax on retail cannabis purchases received a public hearing in the Washington State Senate Ways and Means Committee (WA Senate WM) on January 18th.
  • Committee Counsel Corey Patton gave a briefing on HB 1105, "Concerning arrest protections for the medical use of cannabis." He said the bill gave “criminal and civil protections to qualifying patients and designated providers who have a valid authorization for the medical use of marijuana” (audio - 3m, video).
    • Patton acknowledged state law allowing adult cannabis possession and use “but specific types of healthcare professionals may authorize medical use of marijuana” for qualifying patients and designated providers as well. Authorizations increase the cannabis “possession limit, permit home cultivation of marijuana plants, and provide certain legal protections not otherwise afforded to recreational users,” he said.
      • Legislation to legalize limited home cultivation for all adults, HB 1019, was scheduled for a public hearing in the Washington State House Appropriations Committee (WA House APP) on February 9th following a public hearing and executive session in the Washington State House Commerce and Gaming Committee (WA House COG).
    • Patton reviewed the definition of patient and designated provider, requirements of a valid authorization, and the patient’s right to choose whether or not to join the database at a medically endorsed retailer to “receive a recognition card.” Patients and designated providers who registered and complied with the limits of the law were “protected from being arrested or prosecuted for certain violations of state law relating to marijuana,” he told the committee. Whereas qualifying patients not registered with DOH were “not granted the same protections,” could be arrested and have assets seized, and be forced to “raise an affirmative defense at trial” to prove compliance with the law.
    • “House Bill 1105 eliminates that affirmative defense,” Patton said, replacing it “with the same protections from arrest and prosecution given to people who are entered into the medical marijuana database.” The person was still subject to the same plant and cannabis limits and must “present a copy of their authorization upon the request of a law enforcement officer and have a copy of the authorization for the qualifying patient or designated provider’s contact information posted next to any marijuana products and plants in their residence,” he added.
    • Additionally, the bill “clarifies that a person who is a qualified patient and a designated provider for another person may possess no more than 15 marijuana plants located in any one housing unit, unless that unit is an authorized cooperative,” Patton reported
  • The legislation’s sponsor, Representative Shelley Kloba, offered remarks, stating that Washington had “developed one of the most intensely regulated systems of all of the states,” which she felt had been a “very prudent way to start.” She said during her work as a member and as the newly appointed Chair of WA House COG, she’d met “with patients and learn[ed] from them about their experiences with cannabis as a medicine and some of the challenges with acquiring it and having it in their home” (audio - 4m, video).
    • Kloba said she’d noticed “unequal treatment of some patients over others with regard to their status under the law” and considered it something that could be improved. “Let me boil it down to just the basics,” Kloba remarked, pointing to the steps necessary to be a qualified patient or designated provider such as residency, qualifying conditions, understanding “risks for yourself,” and an “official” authorization.
    • She then told the committee “a tale of two patients,” where one registered with DOH and the other didn’t, “and say there’s a scenario where a neighbor smells cannabis emanating from your home” and call the police because they had “no idea whether that was legal or not.” At this point, patients “with a registry card” would be “protected from arrest” and police would leave, but patients choosing not to enter a “voluntary” system faced property seizure without the same “civil and criminal protections” until asserting an affirmative defense in court.
    • Kloba testified, “we should not be treating the person without the recognition card as a criminal” provided they otherwise complied with the authorization and possession requirements. “It may have made sense” when the state didn’t have legal adult cannabis access, “but it makes no sense now” and exposed some patients to “a cruel level of uncertainty and vulnerability.”
  • Assistant Ranking Member Michelle Caldier asked Kloba about the reluctance of patients to register in the State’s database. Kloba replied that “the folks who are going to testify after me can” answer more directly, but patients had conveyed a “distrust” in the data security measures of the registry. Even with the benefits of a recognition card discounting “sales tax on this medicine,” she said it was “not enough” for some people to feel safe providing information to the State, and “that tells me there’s something that needs to change here” (audio - 1m, video).

• A supportive panel of patients and medical professionals shared problems with the current system which provided arrest protections for only some patients.
  • John Kingsbury said he’d been “an authorized medical cannabis patient since 2009” after “exhausting all other therapies” and getting approval from doctors “who have been treating me for nearly 20 years each.” Though holding a valid authorization and following the law, he resented feeling like the State started from “the assumption that I may be a criminal and I am not entitled to protection from arrest” (audio - 3m, video, written comments).
    • Kingsbury said that patient arrests “still happen” even when they follow the law for reasons including “the law enforcement officer says ‘I don’t know if this is a valid authorization,’ maybe the officer doesn’t know the law, maybe the officer has an anti-cannabis attitude.” Situations like this could result in seizures of the patient’s medicine and property, an arrest, and “notices to appear,” he said. Kingsbury added that cases such as these were eventually dropped “because there is no crime,” but not before patients had “their lives turned upside down.” HB 1105 would allow authorized patients “showing no obvious signs of violation of the law, then they cannot be arrested. I cannot imagine why that would be controversial,” he observed.
    • The bill gave no protection to patients growing or possessing cannabis in excess of legal limits - “this bill will do nothing to protect” them, Kingsbury explained. He testified that it was comparable to filling a valid prescription where a person was “appropriately scrutinized” while generally presumed “to be acting legally.” He found the statutorily sanctioned suspicion of medical cannabis patients to be “senseless and mean-spirited.”
    • Representative Skyler Rude wanted to know about “law enforcement destroying property of a grower” as he found it “very troubling.” He wondered about examples of when such seizures occurred and whether any law enforcement agency had been “sued for damages.” Kingsbury wasn’t “familiar with any instances where they have sued” but there were “instances where they got their equipment back.” He described some barriers to getting seized property returned and that “usually the garden...gets destroyed” by police. After someone went through the criminal justice process they could get property returned but “by then they really feel targeted” and can feel “reticent about growing under the law.” Kingsbury said he knew of “three cases going on in Grant County” but law enforcement was given “a wide berth as far as accountability in civil matters” and had “the latitude” to take property and arrest patients “under the existing law” (audio - 2m, video).
  • Sunil Aggarwal, Co-Founder of the Advanced Integrative Medical Science Institute (AIMS), supported the bill as “a physician whose done a lot of work...and research on behalf of medical cannabis patients in Washington state” who specialized in “physical medicine rehabilitation” as well as “hospice and palliative medicine” and was a faculty member at the University of Washington (UW) and Bastyre University (audio - 5m, video).
    • “When we do vet a patient to determine if they qualify for use of cannabis,” Aggarwal explained, “it is a pretty comprehensive and thorough assessment, you know, looking at a patient’s condition and history of illness, associated medications that they’re on, past medical history, any contraindications.” He said that if a practitioner determined “that they meet the qualifications,” an authorization was issued “on a tamper-proof paper, which is essentially considered to be prescription equivalents” and signed by the issuing medical provider. Aggarwal pointed out that patients under the age of 18, or those with a designated provider needed a second signature for the authorization to be valid, but the document was otherwise “the same thing as writing a prescription for any other controlled substance.” Authorized patients were provided information on the DOH database and the choice to register.
    • Aggarwal believed that because “cannabis is still illegal under federal law” there were “many areas” like employment and benefits where patients were justifiably reluctant to join the registry “despite the best intentions of the State to, to help to make a database” secure for patient health information. However, it wouldn’t be “airtight until we have a change in” federal cannabis scheduling, he said, noting that the United Nations Commission on Narcotic Drugs (CND) voted to remove cannabis from its current drug schedule in December 2020. He argued patients included members of vulnerable populations with “fears about the system” which were “sometimes valid.”
    • Aggarwal supported the bill’s arrest protection for those with valid authorizations to keep them from having “to potentially go to court to potentially raise” an affirmative defense - just like individuals with prescriptions. He backed the legislation “from a patient’s rights advocacy standpoint, humanitarian cause” and because authorizations themselves meant “the medical determination has already been done.”
    • Committee Chair Eileen Cody asked about the DOH Prescription Monitoring Program (PMP) saying “one of the problems that I see with this is that it’s actually treating cannabis differently” by not having a PMP equivalent. Aggarwal responded that he had a PMP account as a physician, using it “with new patients who want to use cannabis and I want to make sure that I have a full picture” of their health history. While cannabis authorizations couldn’t be entered into the system “until federal law changes,” he did use the “medical marijuana Department of Health tracking system” to see whether his patients chose to register. Though Aggarwal couldn’t see other doctors’ authorized or registered patients, if there was “a safety issue or something’s happening that a patient is not adhering to the follow up plan, I’ve had this happen occasionally...I had to revoke the authorization” which was the “only way I’ve really used” the database. He concluded that “protecting patients from arrest won’t really alter” the database’s utility (audio - 2m, video).
    • In regards to PMP tracking, Kingsbury later noted that the program “applies to things like narcotics” which he supported, “but cannabis is a substance that we sell like beer...we don’t track people buying beer” (audio - 1m, video).
  • Lisa Buchanan, a registered nurse in Washington since 1992, believed that authorized patients deserved “the presumption of innocence that all other citizens of Washington state receive from law enforcement” (audio - 3m, video, written comments).
    • Buchanan was the co-founder of the Cannabis Nurses Network, a member of the American Cannabis Nurses Association and the Puget Sound Oncology Nursing Society (PSONS), and a volunteer for Cancer Lifeline. She worked as a “medical educator, budtender, and medical marijuana consultant” at Dockside Cannabis, a medically endorsed retailer, “and in the community for healthcare institutions, seniors, and interested parties.”
    • Buchanan had worked with medical cannabis patients who had a wide array of illnesses though her “specialty is caring for patients with an oncologic diagnosis. Cancer.” She stated that she’d worked alongside patients “from diagnosis to completion of therapy or their death from disease” and that all had been “in crisis” and needing “quality of life that standard medical options have not met.” Medical cannabis provided patients “supportive care, autonomy, and hope” Buchanan testified.
    • Society “need not start with the assumption” that authorized patients were criminals. Instead, she suggested patients needed “respect for their personal medical treatment options, empathy, and the presumption of innocence.” Buchanan said supporting HB 1105 meant lawmakers could “see the difference between the people I know and serve, and the people who are acting with criminal intent.”
  • Steven Field said that he supported the legislation as an authorized patient “from the Swedish [Multiple Sclerosis] Center in Seattle.” As someone who had battled the condition for several years in the hospital and therapy, he needed “medical grade cannabis” and wanted to grow at home “without fear of the State assuming that I’m a criminal.” Field was not comfortable with “releasing my information into a database” nor being criminalized for “growing and using an all-natural substance.” He asked the committee’s members to have compassion “in the form of common sense legislation” and consider those they knew who were or could be authorized cannabis patients (audio - 3m, video).

• Two prominent law enforcement advocates opposed the bill without publicly testifying, while everyone else who signed in supported the bill.
  • HB 1105’s sign in sheet showed two individuals opposed the bill:
    • James McMahan, Washington Association of Sheriffs and Police Chiefs (WASPC) Policy Director
    • John Snaza, Thurston County Sheriff and Past President of the Washington State Sheriff’s Association (WSSA)
  • The following people supported the bill:
    • Eric Gonzalez Alfaro, American Civil Liberties Union of Washington Legislative Director
    • Lara Kaminsky, The Cannabis Alliance Government Affairs Liaison
    • Jennifer Mital
    • Jerod Morris
    • Caitlein Ryan, The Cannabis Alliance Board President and Interim Executive Director 
    • Nancy Southern, The Cannabis Alliance