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| Montana Administrative Register Notice 37-554 | No. 18 09/22/2011 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On August 11, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-554 pertaining to the public hearing on the proposed adoption and repeal of the above-stated rules at page1524 of the 2011 Montana Administrative Register, Issue Number 15. 2. The department has adopted New Rule V (37.107.117), XI (37.107.129), and XIV (37.107.135) as proposed. 3. The department has repealed ARM 37.107.101, 37.107.103, 37.107.104, 37.107.107, and 37.107.109 as proposed. 4. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined. NEW RULE I (37.107.110) DEFINITIONS For purposes of the Montana (1) and (2) remain as proposed. (3) "Cultivate" means to grow, propagate, clone, or harvest (4) "Fee" means the mandatory fees necessary to process a (5) and (6) remain as proposed. (7) "Manufacture" means the act of preparing and processing usable marijuana into a marijuana-infused product. A marijuana-infused product must be labeled as to indicate that it contains (8) through (10) remain as proposed (11) "Registry" means the department's confidential (12) remains as proposed.
AUTH: IMP: NEW RULE II (37.107.111) REGISTERED CARDHOLDER APPLICATION PROCESS (1) remains as proposed. (2) Application forms are available from and must be submitted to the Department of Public Health and Human Services, Licensure Bureau, (3) Registered cardholder application materials that must be provided include: (a) State of (i) through (9) remain as proposed. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 4, 7, 23, L. 2011 NEW RULE III (37.107.113) MINOR APPLICATION PROCESS (1) In addition to the requirements outlined in [Section 4 of SB 423] the minor's custodial parent or legal guardian with responsibility for health care decisions must submit to the department a Minor Registry Application Packet. A Minor Registry Application Packet can be obtained from the Department of Public Health and Human Services, Licensure Bureau, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953. Application forms are also available on the department's web site at www.dphhs.mt.gov/ (a) through (3) remain as proposed.
AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 4, 23, L. 2011
NEW RULE IV (37.107.115) PROVIDER OR MIPP APPLICATION PROCESS (1) remains as proposed. (2) Provider application materials are available from the Department of Public Health and Human Services, Licensure Bureau, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953. Application forms are available on the department's web site at www.dphhs.mt.gov/ (a) through (9) remain as proposed.
AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Section 3, 5, 6, 23, L. 2011 NEW RULE VI (37.107.119) PROVIDER AND MIPP FINGERPRINT REQUIREMENTS (1) through (5) remain as proposed. (6) The fingerprint background checks are valid for a 12-month period. Thirty calendar days prior to the expiration date of the background check, new prints must be obtained following the same procedures outlined in this rule and returned to the department by the DOJ. (7) remains as proposed. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 5, 23, L. 2011 NEW RULE VII (37.107.121) INCOMPLETE APPLICATION, RENEWAL, OR CHANGE REQUESTS (1) through (2)(a)(i) remain as proposed. (ii) To be considered submitted, these fingerprint cards must be postmarked no later than 30 calendar days after having been sent to the applicant or all application materials held by the department will be returned to the applicant. (3) Any complete application materials received 30 calendar days or more before the expiration date will be processed in the order received. Cards will expire based on the date of issuance, not based on the expiration date of the previous card. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 5, 23, L. 2011 NEW RULE VIII (37.107.123) PROPERTY RESTRICTIONS (1) In addition to the application procedures outlined in ARM 37.107.111, a registered cardholder, provider, or MIPP must attest in writing on forms provided by the department: (a) whether property used for cultivating or manufacturing (b) remains as proposed. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 5, 23, L. 2011
NEW RULE IX (37.107.125) REPLACING LOST OR STOLEN REGISTRY IDENTIFICATION CARDS (1) and (2) remain as proposed.
AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 23, L. 2011 NEW RULE X (37.107.127) INVALIDATION OR REVOCATION OF REGISTRY IDENTIFICATION CARDS (1) A registry card for a registered cardholder can be revoked for the following reasons: (a) through (c) remain as proposed. (d) the registered cardholder fails to report to the department within ten business days a change: (i) through (4) remain as proposed. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 5, 11, 23, 35, L. 2011; 45-9-203, 61-11-101, MCA
NEW RULE XII (37.107.131) HEALTH CARE FACILITY PROCEDURES (1) A residential health care facility must develop a policy regarding the use of (2) Should the facility choose to allow the use of (a) remains as proposed. (b) methods the facility will allow for the resident use of (c) physical security of the (d) remains as proposed. (3) A policy addressing delivery of hospice services related to the use of
AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 11, 23, L. 2011
NEW RULE XIII (37.107.133) COMPLAINT HOTLINE (1) The department will establish a hotline to receive complaint information concerning the (2) and (3) remain as proposed. AUTH: Ch. 419, Section 23, L. 2011 IMP: Ch. 419, Sections 3, 21, 23, L. 2011 5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows: COMMENT #1: A comment was received indicating Senate Bill (SB) 423 is not the Montana Medical Marijuana Act, but rather, the Montana Marijuana Act and any reference to "medical marijuana" should be removed from these rules. RESPONSE #1: The department agrees and has removed the phrase "medical marijuana" from these rules. COMMENT #2: A comment was received questioning whether the rule requires cardholders to report a lost or stolen card to law enforcement therefore requiring cardholders to notify law enforcement they are on the marijuana registry and suffer from a debilitating medical condition. RESPONSE #2: This is not a requirement and the department has removed the language from New Rule IX (37.107.125). COMMENT #3: A comment was received suggesting an administrative remedy, rather than judicial review, if an applicant wishes to contest a denied application. RESPONSE #3: New Rule II(9) (37.107.111) is a direct reference from statute and cannot be amended by the department. COMMENT #4: A comment was receiving indicating confusion with deadlines in the rules because some deadlines indicate "business days" while others do not. RESPONSE #4: The department attempted to make the deadlines clear by using the term "business days". In cases where the deadline should reflect otherwise, the department will use the term "calendar days". This change has been made to the rules. COMMENT #5: A comment was received from the primary sponsor of SB423, suggesting the department verify all applicants are not in the custody of or under the supervision of the Department of Corrections (DOC) or a youth court. RESPONSE #5: The department will work with the DOC to determine a means for verifying this in the future. Presently, each application includes a personal attestation that registered cardholder applicants are not in the custody of or under the supervision of the DOC or a youth court. All applicants are required to sign the application. COMMENT #6: A comment was received from the primary sponsor of SB423 suggesting the department verify with DOC and federal law enforcement authorities that provider applicants are not in the custody of or under the supervision of the DOC or a youth court or have a felony conviction or any drug conviction. RESPONSE #6: The department will not need to modify the rule as a fingerprint background check by the Montana Department of Justice and the Federal Bureau of Investigation is required of all provider applicants by statute. Through the fingerprint check, the department is verifying that a provider is not under the supervision of the DOC or a youth court and does not have felony conviction or any misdemeanor drug offense. COMMENT #7: A comment was received encouraging the department to verify registered cardholder, provider/MIPP applicants are not under the supervision of the DOC or a youth court. RESPONSE #7: The department will verify, through a fingerprint background check, that all provider/MIPP applicants are not in the custody of or under the supervision of the DOC or a youth court. The department will work with the DOC to determine a means to verify all registered cardholder applicants are not under the supervision of the DOC or a youth court. Presently, each application includes a personal attestation that registered cardholder applicants are not under supervision. All applicants are required to sign the application. COMMENT #8: A comment was received from the primary sponsor of SB423 recommending the department include a rule implementing Section 14 of the bill, which is entitled "Inspection Procedures." The commenter specifically wants the department to list out requirements for provider's transaction records and require providers submit those records to the department periodically for monitoring purposes. RESPONSE #8: Sections 14(1), (2), and (3) of SB423 have been enjoined by the First Judicial District Court of Lewis and Clark County (Cause No.: DDV-2011-518, Order on Motion for Preliminary Injunction, dated June 30, 2011). As a result of the court's order, the department presently has no authority to inspect and monitor provider's transaction records. Proposing and adopting a rule for an inspection provision that the department would have no authority to enforce may constitute contempt of the court's order, or, at minimum, result in the adoption of a rule that is void from the beginning. Furthermore, if the department adopts a rule when it has no substantive authority to do so, it would violate the Montana Administrative Procedures Act. Section 14(4) of SB423 was not enjoined. This section deals with the requirements of the written records providers must keep. However, Section 14(4) specifically outlines the documentation requirements of providers; therefore, it is not necessary, nor would it be standard, for the department to address the requirements in the rule. /s/ Kurt R. Moser_ /s/ Anna Whiting Sorrell_ Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State September 12, 2011
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