DEPARTMENT OF HEALTH

[Filed August 7, 2019, 9:15 a.m.]

Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).

Title of Rule and Other Identifying Information: WAC 246-71-010 Definitions, 246-71-020 Adding qualifying patients and designated providers to the database, 246-71-030 Renewing qualifying patients and designated providers in the database, and 246-71-040 Requirements for recognition cards. Proposed amendments will implement the new law under ESHB 1094, passed during the 2019 legislative session, which establishes compassionate care renewals for qualifying patients who use marijuana for medical purposes.

Hearing Location(s): On September 17, 2019, at 10:30 a.m., at Point Plaza East, 310 Israel Road S.E., Tumwater, WA 98501.

Date of Intended Adoption: September 24, 2019.

Submit Written Comments to: Shelly Rowden, Health Systems Quality Assurance, Medical Marijuana Program, P.O. Box 47850, Olympia, WA 98501, email https://fortress.wa.gov/doh/policyreview, fax 360-236-2901, by September 4, 2019.

Assistance for Persons with Disabilities: Contact Shelly Rowden, phone 360-236-2820, TTY 360-833-6388 or 711, email medicalmarijuana@doh.wa.gov, by September 4, 2019.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: During the 2019 legislative session, the legislature passed ESHB 1094 which establishes compassionate care renewals for patients who may experience severe physical or emotional hardship if required to attend an in-person physical examination for the purpose of renewing their medical marijuana authorization. Additionally, patients who have been determined by their health care professional to qualify for a compassionate care renewal are exempt from being physically present during registration renewal in the medical marijuana authorization database. The proposed amendments will align existing rules with the law as established by ESHB 1094.

Reasons Supporting Proposal: Current rules support previous law which required an in-person physical examination for an authorization renewal and a photograph of the qualifying patient's or designated provider's face taken by an employee of the marijuana retailer with a medical marijuana endorsement at the same time that the qualifying patient or designated provider is being placed in the medical marijuana authorization database under RCW 69.51A.230. Proposed amendments will implement the new law making exception for patients who are compassionate care renewal eligible.

Statutory Authority for Adoption: RCW 43.70.040.

Statute Being Implemented: RCW 69.51A.230 and ESHB 1094 (chapter 203, Laws of 2019).

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of health, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Shelly Rowden, 111 Israel Road S.E., Tumwater, WA 98501, 360-236-2820.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328. RCW 34.05.328 (5)(b)(v) exempts rules the content of which is explicitly and specifically dictated by statute.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute.

for John Wiesman, DrPH, MPH

AMENDATORY SECTION(Amending WSR 16-11-086, filed 5/17/16, effective 6/17/16)

WAC 246-71-010Definitions.

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

(1) "Authorization" means a form developed by the department that is completed and signed by a qualifying patient's health care professional and printed on tamper-resistant paper approved by the Washington pharmacy quality assurance commission.

(2) "Compassionate care renewal" means a renewal of an authorization by a health care practitioner through the use of telemedicine if the health care practitioner determines that requiring the qualifying patient to attend an in-person physical examination would likely result in severe hardship to the qualifying patient because of the qualifying patient's physical or emotional condition. A compassionate care renewal of a qualifying patient's registration and recognition card also allows the qualifying patient's designated provider to renew the qualifying patient's registration in the database and recognition card without the qualifying patient being physically present at a retailer and without a new photograph being taken.

(3) "Consultant" means a person who holds a valid medical marijuana consultant certificate issued by the secretary under chapter 246-72 WAC and who is employed by a retail outlet with a medical marijuana endorsement.

(((3)))(4) "Credential for access" or "credentials" means information, electronic device, or certificate provided by the department or the department's designee to a data requestor to electronically access the database. The authentication may include, but is not limited to, a user name, password, or an identification electronic device or certificate.

(((4)))(5) "Database" means the medical marijuana authorization database established under RCW 69.51A.230.

(((5)))(6) "Department" means the Washington state department of health.

(((6)))(7) "Designated provider" has the same meaning as RCW 69.51A.010(4).

(((7)))(8) "Dispenser" means a person authorized to dispense controlled substances other than marijuana under chapter 69.50 RCW.

(((8)))(9) "Health care practitioner" or "authorizing health care practitioner," 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 physician's assistant licensed under chapter 18.57A RCW, a naturopath licensed under chapter 18.36A RCW, or an advanced registered nurse practitioner licensed under chapter 18.79 RCW.

(((9)))(10) "Official" means an official of a local, state, tribal, or federal law enforcement or prosecutorial agency.

(((10)))(11) "Prescriber" means a person authorized to prescribe or dispense controlled substances other than marijuana under chapter 69.50 RCW.

(((11)))(12) "Qualifying patient" or "patient" has the same meaning as RCW 69.51A.010(19).

(((12)))(13) "Recognition card" means a card issued to qualifying patients and designated providers by a marijuana retailer with a medical marijuana endorsement that has entered them into the medical marijuana authorization database.

(((13)))(14) "Retail outlet with a medical marijuana endorsement" or "endorsed outlet" means a location licensed by the WSLCB under RCW 69.50.325 for the retail sale of usable marijuana and marijuana-infused products to the public, and under RCW 69.50.375 to qualifying patients and designated providers for medical use.

(((14)))(15) "Telemedicine" has the same meaning as the definition of that term adopted by the authorizing health care practitioner's disciplining authority, whether defined in rule or policy.

(16) "Valid photographic identification" means:

(a) A driver's license or instruction permit issued by any state of the United States or province of Canada. If the patient's driver's license has expired, the patient must also show a valid temporary driver's license with the expired card.

(b) A state identification card issued by any state of the United States or province of Canada.

(d) A United States armed forces identification card issued to active duty, reserve, and retired personnel and the personnel's dependents.

(e) A merchant marine identification card issued by the United States Coast Guard.

(f) An enrollment card issued by the governing authority of a federally recognized Indian tribe located in Washington, if the enrollment card incorporates security features comparable to those implemented by the department of licensing for Washington drivers' licenses.

A recognition card, whether current or expired, does not qualify as valid photographic identification.

(((15)))(17) "Vendor" means the third-party administrator with whom the department has contracted to operate the database.

(((16)))(18) "WSCLB" means the Washington state liquor and cannabis board.

AMENDATORY SECTION(Amending WSR 18-07-030, filed 3/12/18, effective 4/12/18)

WAC 246-71-020Adding qualifying patients and designated providers to the database.

A qualifying patient or designated provider may take their authorization to an endorsed outlet to be entered into the database.

(1) Only a consultant employed by an endorsed outlet is allowed to enter a qualifying patient's or designated provider's information into the database.

(2) Consultants must register with the department to receive credentials to access the database. The process for registration will be established by the department.

(3) The department shall verify the consultant's identity and certificate status before providing credentials to access the database.

(4) The consultant shall access the database using the credentials issued by the department or the department's designee. If the credentials are lost or missing, or the security of the credentials is compromised, the consultant shall notify the department by telephone and in writing within one business day.

(5) The consultant shall ensure that the authorization form provided is valid, complete, unaltered, and meets all requirements specified in RCW 69.51A.030 and complies with the instructions on the form. "Street address" on the authorization form means the physical address for the person's residence where plants may be grown under RCW 69.51A.210. If any requirement is not met, or the form is altered or incomplete, the person cannot be entered into the database.

(6) The consultant shall verify the identity of every patient age eighteen and older and every designated provider by inspecting the patient's or designated provider's valid photographic identification. Except for patients under the age of eighteen, or qualifying patients renewing under a compassionate care renewal as authorized in RCW 69.51A.030, a person cannot be entered into the database without valid photographic identification.

(7) In the event of an inexact match of names on the identification and the authorization, the consultant shall ensure that the patient or designated provider named on the authorization form is the same person presenting the authorization for entry into the database.

(8) The consultant shall check the database to ensure that a designated provider is not currently associated with a different patient in the database before associating the designated provider with a new patient in the database. If a designated provider is still associated with a different patient, the consultant cannot enter the designated provider into the database as associated with the new patient.

(9) The consultant shall enter the following information into the database for each patient and designated provider (unless specified below):

(a) The type of valid photographic identification verified and the unique number from the identification;

(b) Full legal name, as it appears on the valid photographic identification, including first name, middle initial, last name, and generational suffixes, if any;

(d) Actual physical address if different from the address on the identification;

(e) Gender;

(f) Name of the authorizing health care practitioner;

(g) Authorizing health care practitioner's full license number;

(h) Business address of the authorizing health care practitioner;

(i) Telephone number of the authorizing health care practitioner, as listed on the authorization form;

(j) The patient's qualifying condition(s);

(k) For the designated provider only, the patient the designated provider is authorized to assist;

(l) The date the authorization was issued;

(m) The date the authorization expires; and

(n) The number of plants the patient is allowed to grow. If the authorizing health care practitioner does not indicate a specific number, the presumptive number is six plants. The health care practitioner cannot authorize more than fifteen plants. An authorization for more than fifteen plants is invalid.

(10) All requests for, uses of, and disclosures of information from the database by authorized persons must be consistent with chapter 69.51A RCW and this chapter.

AMENDATORY SECTION(Amending WSR 16-11-086, filed 5/17/16, effective 6/17/16)

WAC 246-71-030Renewing qualifying patients and designated providers in the database.

(1) Recognition cards expire on the expiration date indicated on the patient's or designated provider's authorization. To be valid, an authorization must expire no later than:

(a) Twelve months after the date it was issued for patients age eighteen and over;

(b) Twelve months after the date it was issued for designated providers; or

(2) To renew a recognition card a patient or designated provider must receive a new authorization following reexamination of the patient by a health care practitioner in-person or as authorized for compassionate care renewals as provided in RCW 69.51A.030. The qualifying patient or designated provider may take their new authorization to an endorsed outlet to be entered into the database.

(3) A qualifying patient's designated provider may renew the patient's registration and recognition card in the medical marijuana authorization database without the physical presence of the qualifying patient at the retailer if the authorization from the health care practitioner indicates that the qualifying patient qualifies for a compassionate care renewal as provided in RCW 69.51A.030. A qualifying patient receiving renewals under compassionate care renewal provisions is exempt from the requirement for a new photograph for the renewal.

(4) The procedures in WAC 246-71-020 must be used to enter the patient's or designated provider's new authorization into the database.

(((4)))(5) The consultant shall ensure that the information required by WAC 246-71-020(9) is updated and accurate at the time of renewal.

AMENDATORY SECTION(Amending WSR 18-07-030, filed 3/12/18, effective 4/12/18)

WAC 246-71-040Requirements for recognition cards.

(1) An endorsed outlet must have the following equipment readily available and maintained in good working order:

(a) A computer with internet access and capability of running a supported version of a common web browser;

(b) A digital camera with at least 10 megapixel resolution;

(d) A laminator; and

(e) A solid white, off-white, or light blue backdrop that is free of patterns, objects or textures, to use as the background for each picture.

(2) When issuing a recognition card to a qualifying patient or designated provider, an endorsed outlet must comply with the following requirements:

(a) Only a consultant employed by the endorsed outlet is allowed to print and create a card;

(b) The consultant shall take a picture of the face of the patient or designated provider at the same time they are entered into the database following the process specified by the department((;)). Compassionate care renewals will use the qualifying patient's existing photograph and information retained securely in the database to generate a new recognition card for the patient. The endorsed outlet shall not otherwise retain or use the photograph or patient information for any purpose other than:

(i) Entering a qualifying patient or designated provider into the database;

(ii) Issuing a replacement card under WAC 246-71-120; or

(iii) Issuing a compassionate care renewal.

(c) The consultant shall create, print the card in full color, permanently laminate the card using a heat process, and issue it to the patient or designated provider following the process specified by the department; and

(d) The consultant shall return the authorization to the patient or designated provider. The endorsed outlet shall not retain a copy of the authorization.

(3) The database vendor shall ensure recognition cards contain the following:

(a) A randomly generated and unique identification number;

(b) The name of the patient or designated provider;

(d) A photograph of the patient or designated provider;

(e) The amounts of marijuana concentrates, usable marijuana, or marijuana-infused products the patient or designated provider is authorized to purchase or obtain at an endorsed outlet;

(f) The number of plants the patient or designated provider is authorized to grow;

(g) The effective date and expiration date of the card;

(h) The name of the health care professional who issued the authorization; and

(i) Additional security features required by the department to ensure the validity of the card.