2024 Senate Bill 82 - SD Legislature modify standards for a bona fide practitioner-patient relationship required prior to the issuance of a medical cannabis certification.

An Act to modify standards for a bona fide practitioner-patient relationship required prior to the issuance of a medical cannabis certification.

Be it enacted by the Legislature of the State of South Dakota:

Section 1. That   34-20G-1 be AMENDED:

34-20G-1. Terms used in this chapter mean:

(1) "Allowable amount of cannabis,":

(a) Three ounces of cannabis or less;

(b) The quantity of cannabis products as established by rules promulgated by the department under    34-20G-72;

(c) If the cardholder has a registry identification card allowing cultivation, two flowering cannabis plants and two cannabis plants that are not flowering; and

(d) If the cardholder has a registry identification card allowing cultivation, the amount of cannabis and cannabis products that were produced from the cardholder's allowable plants, if the cannabis and cannabis products are possessed at the same property where the plants were cultivated;

(2) "Bona fide practitioner-patient relationship," a treatment or consulting relationship between a practitioner and patient, during which:

(a) The practitioner completes, at the initial visit, an assessment of the patient's medical history and current medical condition, including an appropriate in-person physical examination;

(b) The patient is under the practitioner's care for the debilitating medical condition that qualifies the patient for the medical use of cannabis or has been referred by the practitioner caring for the patient's debilitating medical condition that qualifies the patient for the medical use of cannabis to another practitioner;

(c) The patient has a reasonable expectation that the practitioner providing the written certification will continue to provide follow-up care to the patient to monitor the medical use of cannabis; and

(d) The relationship is not for the sole purpose of providing a written certification for the medical use of cannabis unless the patient has been referred by a practitioner providing care for the debilitating medical condition that qualifies the patient for the medical use of cannabis;

(3) "Cannabis products," any concentrated cannabis, cannabis extracts, and products that are infused with cannabis or an extract thereof, and are intended for use or consumption by humans. The term includes edible cannabis products, beverages, topical products, ointments, oils, and tinctures;

(4)(3) "Cannabis product manufacturing facility," an entity registered with the department pursuant to this chapter that acquires, possesses, manufactures, delivers, transfers, transports, supplies, or sells cannabis products to a medical cannabis dispensary;

(5)(4) "Cannabis testing facility" or "testing facility," an independent entity registered with the department pursuant to this chapter to analyze the safety and potency of cannabis;

(6)(5) "Cardholder," a qualifying patient or a designated caregiver who has been issued and possesses a valid registry identification card;

(6) "Certification," a printed or electronic authorization that is provided to or for a qualifying patient, by a practitioner, and verifies that the patient has a debilitating medical condition, for purposes of this chapter;

(7) "Cultivation facility," an entity registered with the department pursuant to this chapter that acquires, possesses, cultivates, delivers, transfers, transports, supplies, or sells cannabis and related supplies to a medical cannabis establishment;

(8) "Debilitating medical condition,":

(a) A chronic or debilitating disease or medical condition or its treatment that produces one or more of the following: cachexia or wasting syndrome; severe, debilitating pain; severe nausea, except nausea associated with pregnancy; seizures; or severe and persistent muscle spasms;

(b) Acquired immune deficiency syndrome or positive status for human immunodeficiency virus;

(c) Amyotrophic lateral sclerosis;

(d) Multiple sclerosis;

(e) Cancer or its treatment, if associated with severe or chronic pain, nausea or severe vomiting, or cachexia or severe wasting;

(f) Crohn's disease;

(g) Epilepsy and seizures; or

(h) Post-traumatic stress disorder;

(9) "Department," the Department of Health;

(10) "Designated caregiver," an individual who:

(a) Is at least twenty-one years of age;

(b) Has agreed to assist with a qualifying patient's medical use of cannabis;

(c) Has not been convicted of a disqualifying felony offense; and

(d) Assists no more than five qualifying patients with the medical use of cannabis, unless the designated caregiver's qualifying patients each reside in or are admitted to a health care facility, as defined in    34-12-1.1, an accredited prevention or treatment facility, as defined in    34-20A-2, a mental health center, as defined in    27A-1-1, a child welfare agency, as defined in    26-6-1, or a community support provider or community services provider, as defined in    27B-1-17, where the designated caregiver is employed;

(11) "Disqualifying felony offense," a violent crime that was classified as a felony in the jurisdiction where the person was convicted;

(12) "Edible cannabis products," any product that:

(a) Contains or is infused with cannabis or an extract thereof;

(b) Is intended for human consumption by oral ingestion; and

(c) Is presented in the form of foodstuffs, beverages, extracts, oils, tinctures, or other similar products;

(13) "Enclosed, locked facility," any closet, room, greenhouse, building, or other enclosed area that is equipped with locks or other security devices that permit access only by a cardholder or a person allowed to cultivate the plants. Two or more cardholders who reside in the same dwelling may share one enclosed, locked facility for cultivation;

(14) "Flowering cannabis plant," the reproductive state of the cannabis plant in which the plant shows physical signs of flower budding out of the nodes of the stem;

(15) "Medical cannabis" or "cannabis," marijuana as defined in    22-42-1;

(16) "Medical cannabis dispensary" or "dispensary," an entity registered with the department pursuant to this chapter that acquires, possesses, stores, delivers, transfers, transports, sells, supplies, or dispenses cannabis, cannabis products, paraphernalia, or related supplies and educational materials to cardholders;

(17) "Medical cannabis establishment," a cultivation facility, a cannabis testing facility, a cannabis product manufacturing facility, or a dispensary;

(18) "Medical cannabis establishment agent," an owner, officer, board member, employee, or volunteer at a medical cannabis establishment;

(19) "Medical use," includes the acquisition, administration, cultivation, manufacture, delivery, harvest, possession, preparation, transfer, transportation, or use of cannabis or paraphernalia relating to the administration of cannabis to treat or alleviate a registered qualifying patient's debilitating medical condition or symptom associated with the patient's debilitating medical condition. The term does not include:

(a) The cultivation of cannabis by a nonresident cardholder;

(b) The cultivation of cannabis by a cardholder who is not designated as being allowed to cultivate on the cardholder's registry identification card; or

(c) The extraction of resin from cannabis by solvent extraction unless the extraction is done by a cannabis product manufacturing facility;

(20) "Nonresident cardholder," a person who:

(a) Has been diagnosed with a debilitating medical condition, or is the parent, guardian, conservator, or other person with authority to consent to the medical treatment of a person who has been diagnosed with a debilitating medical condition;

(b) Is not a resident of this state or who has been a resident of this state for fewer than forty-five days;

(c) Was issued a currently valid registry identification card or its equivalent by another state, district, territory, commonwealth, insular possession of the United States, or country recognized by the United States that allows the person to use cannabis for medical purposes in the jurisdiction of issuance; and

(d) Has submitted any documentation required by the department, and has received confirmation of registration;

(21) "Practitioner," a physician, physician assistant, or advanced practice registered nurse, who is licensed with authority to prescribe drugs to humans. In relation to a nonresident cardholder, the term means a person who is licensed with authority to prescribe drugs to humans in the state of the patient's residence;

(22) "Primary-care provider," a practitioner who:

(a) Provides comprehensive, first contact and continuing care for a patient having any undiagnosed sign, symptom, or health concern that is not limited by problem origin, whether biological, behavioral, or social, or by organ system, or diagnosis;

(b) Promotes good health;

(c) Encourages health maintenance and disease prevention;

(d) Provides counseling;

(e) Provides patient education;

(f) Collaborates with other health professionals; and

(g) Utilizes consultation or referral, as appropriate;

(23) "Qualifying patient," a person who has been diagnosed by a practitioner as having a debilitating medical condition;

(23)(24) "Registry identification card," a document issued by the department that identifies a person as a registered qualifying patient or registered designated caregiver, or documentation that is deemed a registry identification card pursuant to      34-20G-29 to 34-20G-42, inclusive;

(24)(25) "Safety-sensitive job," any position with tasks or duties that an employer reasonably believes could:

(a) Cause the illness, injury, or death of an individual; or

(b) Result in serious property damage; and

(25)(26) "Under the influence of cannabis," any abnormal mental or physical condition that tends to deprive a person of clearness of intellect and control that the person would otherwise possess, as the result of consuming any degree of cannabis or cannabis products; and

(26) "Written certification," a document dated and signed by a practitioner:

(a) Stating that the patient has a qualifying debilitating medical condition or symptom associated with the debilitating medical condition;

(b) Affirming that the document is made in the course of a bona fide practitioner-patient relationship;

(c) Specifying the qualifying patient's debilitating medical condition; and

(d) Specifying the expiration date of the qualifying patient's written certification, pursuant to    34-20G-43; and

(e) Specifying whether the practitioner has previously issued the patient a written certification and the date of that written certification.

Section 2. That chapter 34-20G be amended with a NEW SECTION:

For purposes of this chapter, a bona fide practitioner-patient relationship exists if:

(1) The practitioner is the patient's primary-care provider;

(2) The practitioner is a board-certified physician, physician assistant, or advanced practice registered nurse, specializing in the provision of care and treatment for a debilitating medical condition with which the patient has been diagnosed; or

(3) The practitioner is an individual to whom the patient was referred by:

(a) The patient's primary-care provider; or

(b) A physician, physician assistant, or advanced practice nurse, meeting the requirements of subdivision (2).

Section 3. That chapter 34-20G be amended with a NEW SECTION:

A certification issued in accordance with this chapter must:

(1) Be signed or electronically authorized by a practitioner having a bona fide relationship with the patient, as set forth in section 2 of this Act;

(2) Be dated by the practitioner;

(3) Affirm the existence of a practitioner-patient relationship that meets the requirements set forth in section 2 of this Act;

(4) Identify the patient's debilitating medical condition;

(5) Indicate whether the certification is an initial or a renewed certification; and

(6) Indicate the date on which the certification expires, in accordance with   34-20G-43.

Section 4. That   34-20G-5 be AMENDED:

34-20G-5. NoA practitioner