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 is subject to arrest, prosecution, or penalty of any kind, or may not be arrested, prosecuted, penalized, denied any right or privilege, including subjected to a civil penalty, or subjected to disciplinary action by the South Dakota Board of Medical and Osteopathic Examiners or by any other occupational or a professional licensing board or bureau, solely for providing written certifications a certification, in accordance with the requirements of this chapter, or for otherwise stating that, in the practitioner's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of cannabis to treat or alleviate the patient's serious or debilitating medical condition or symptoms to treat or alleviate any symptom associated with the serious or debilitating medical condition.

Nothing in this chapter prevents a practitioner from being sanctioned for:

(1) Issuing subject to disciplinary action by a professional licensing board for issuing a written certification to a patient with whom the practitioner does not have, without having a bona fide practitioner-patient relationship; or

(2) Failing to properly evaluate a patient's medical condition, as described in section 2 of this Act.

Section 5. That § 34-20G-5.1 be AMENDED:

34-20G-5.1. Nothing in this chapter authorizes a practitioner to provide a written certification to a patient who is pregnant or breastfeeding.

Section 6. That § 34-20G-29 be AMENDED:

34-20G-29. The department shall issue a registry identification card to a qualifying patient who submits the following, in accordance with rules promulgated by the department, submits:

(1) A written certification issued:

(a) Issued by a practitioner, who meets the qualifications established in section 2 of this Act; and

(b) Dated within ninety days the ninety-day period immediately preceding the date of an the application;

(2) The application or renewal fee;

(3) The name, address, and date of birth of the qualifying patient, except that if the applicant is homeless, no address is required;

(4) The name, address, and telephone number of the qualifying patient's practitioner;

(5) The name, address, and date of birth of the designated caregiver, or designated caregivers, chosen by the qualifying patient;

(6) If more than one designated caregiver is designated at any given time, documentation demonstrating that a greater number of designated caregivers are is needed due to the patient's age or medical condition;

(7) The name of no more than two dispensaries that the qualifying patient designates, if any; and

(8) If the qualifying patient designates a designated caregiver, a designation as to whether the qualifying patient or designated caregiver will be allowed may, under state law to, possess and cultivate cannabis plants for the qualifying patient's medical use.

When If a practitioner conducts a follow-up assessment with a patient, within sixty days of issuing the patient a written certification, and the purpose of the follow-up assessment is to assess the patient's response to the use of medical cannabis and to determine whether to issue the practitioner issues the patient a second written certification, the fee required under subdivision (2) is waived, if the patient reapplies for the second registry identification card. A patient may only receive one fee waiver under this section per calendar year.

Section 7. That § 34-20G-43 be AMENDED:

34-20G-43. The registry identification card of a qualifying patient and designated caregiver, if any, expires on the date noted by the practitioner in the qualifying patient's written certification, not to exceed one year after the date of issue.

Section 8. That § 34-20G-51 be AMENDED:

34-20G-51. Except as provided in § 34-20G-18 and this section, a person may assert the medical purpose for using cannabis as a defense to any prosecution involving cannabis, and such. The defense is presumed valid where if the evidence shows that:

(1) A practitioner has stated that, in the practitioner's professional opinion, after having completed a full assessment of the person's medical history and current medical condition, made in the course of a bona fide practitioner-patient relationship, as set forth in section 2 of this Act, the patient has a debilitating medical condition and the potential benefits of using cannabis for medical purposes would likely outweigh the health risks for the person;

(2) The person was in possession of no more than three:

(a) Three ounces of cannabis, the;

(b) The amount of cannabis products allowed in accordance with rules promulgated by the department rules, two;

(c) Two flowering cannabis plants, two;

(d) Two cannabis plants that are not flowering, ; and the

(e) The cannabis produced by those the plants referenced in subsections (c) and (d) of this section;

(3) The person was engaged in the acquisition, possession, use, manufacture manufacturing, cultivation, or transportation of cannabis, paraphernalia, or both, relating to the administration of cannabis to treat or alleviate the person's debilitating medical condition or symptoms associated with the person's debilitating medical condition; and

(4) Any cultivation of cannabis and storage of more than three ounces of cannabis occurred in a secure location that only the person asserting the defense could access.

Section 9. That § 34-20G-72 be AMENDED:

34-20G-72. The department shall promulgate rules, pursuant to chapter 1-26:

(1) Establishing the form and content of registration and renewal applications submitted under this chapter;

(2) Establishing a system to numerically score competing medical cannabis establishment applicants, in cases where more applicants apply than are allowed by the local government, that and which includes an analysis of:

(a) The preference of the local government;

(b) In the case of dispensaries, the suitability of the proposed location and its accessibility for by patients;

(c) The character, veracity, background, qualifications, and relevant experience of principal officers and board members; and

(d) The business plan proposed by the applicant, that which in the case of a cultivation facility or dispensary shall must include the ability to maintain an adequate supply of cannabis, plans a proposal to ensure the safety and security of patrons and the community, procedures to be used to prevent diversion, and any plan for making a proposal to make cannabis available to low-income registered qualifying patients;

(3) Governing the manner in which the department shall consider considers applications for and renewals of registry identification cards, that may include creating;

(4) Developing a standardized written certification form, which includes having the practitioner:

(a) Indicate under which of the criteria, set forth in section 2 of this Act, there exists a bona fide practitioner-patient relationship; and

(b) In the case of a referral, identify the referring practitioner;

(4)(5) Governing medical cannabis establishments to ensure the health and safety of qualifying patients and prevent diversion and theft, without imposing an undue burden or compromising the confidentiality of a cardholder, including:

(a) Oversight requirements;

(b) Record-keeping requirements;

(c) Security requirements, including lighting, physical security, and alarm requirements;

(d) Health and safety regulations requirements, including restrictions on the use of pesticides that are injurious to human health;

(e) Standards for the manufacture manufacturing of cannabis products and bothfor the indoor and outdoor cultivation of cannabis by a cultivation facility;

(f) Requirements for the transportation and storage of cannabis by a medical cannabis establishment;

(g) Employment and training requirements, including requiring that each medical cannabis establishment create an identification badge for each agent;

(h) Standards for the safe manufacture manufacturing of cannabis products, including extracts and concentrates;

(i) Restrictions on the advertising, signage, and display of medical cannabis, provided that the restrictions may not prevent appropriate signs on the property of a dispensary, listings in business directories including phone books, listings in marijuana-related or medical publications, or the sponsorship of health or not-for-profit charity or advocacy events;

(j) Requirements and procedures for the safe and accurate packaging, labeling, distribution, and tracking of medical cannabis;

(k) Certification standards for testing facilities, including requirements for equipment and qualifications for personnel; and

(l) Requirements for samples of cannabis and cannabis products submitted to testing facilities, including batch sizes to, which may not exceed fifty pounds of cannabis intended for retail sale, batch sizes for homogenous cannabis products intended for retail sale, and procedures to ensure representative sampling;

(5)(6) Establishing procedures for suspending or terminating the registration certificates or registry identification cards of cardholders and medical cannabis establishments that commit multiple or serious violations of this chapter;

(6)(7) Establishing labeling requirements for cannabis and cannabis products, including requiring cannabis product labels to include the following:

(a) The length of time it typically takes for a product to take effect;

(b) Disclosing ingredients and possible allergens;

(c) A nutritional fact panel; and

(d) Requiring that edible cannabis products be clearly identifiable, when practicable, with a standard symbol indicating that it contains cannabis;

(7)(8) Establishing procedures for the registration of nonresident cardholders and the cardholder's designation of no more than two dispensaries, which shall require the submission of:

(a) A practitioner's statement confirming that the patient has a debilitating medical condition; and

(b) Documentation demonstrating that the nonresident cardholder is allowed to possess cannabis or cannabis preparations in the jurisdiction where the nonresident cardholder resides;

(8)(9) Establishing the amount of cannabis products, including the amount of concentrated cannabis, each cardholder and nonresident cardholder may possess; and

(9)(10) Establishing reasonable application and renewal fees for registry identification cards and registration certificates, according to the following:

(a) Application fees for medical cannabis establishments may not exceed five thousand dollars, with this upper limit adjusted annually for inflation;

(b) The total fees collected shall generate revenues sufficient to offset all expenses of implementing and administering this chapter;

(c) A sliding scale of patient application and renewal fees based upon a qualifying patient's household income;

(d) The fees charged to qualifying patients, nonresident cardholders, and caregivers shall be no greater than the costs of processing the application and issuing a registry identification card or registration; and

(e) The department may accept donations from private sources to reduce application and renewal fees.

A violation of a required or prohibited action under any rule authorized by this section is a Class 2 misdemeanor.

Section 10. That § 34-20G-78 be AMENDED:

34-20G-78. A practitioner is guilty of a Class 2 misdemeanor if the practitioner:

(1) Issues a certification, to or for a patient, without meeting the requirements of a bona fide practitioner-patient relationship, as set forth in section 2 of this Act;

(2) Knowingly refers a patient to a medical cannabis establishment or to a designated caregiver in exchange for financial consideration;

(2)(3) Advertises in a medical cannabis establishment;

(3)(4) Issues written certifications while holding a financial interest in a medical cannabis establishment;

(4)(5) Offers a discount, deal, or other financial incentive for making an appointment with the practitioner for the purpose of receiving a written certification;

(5)(6) Conducts the a medical assessment required for a bona fide practitioner-patient relationship of a patient to determine the patient's eligibility for an initial certification, or for the renewal of a certification, in a space licensed for the sale of alcoholic beverages; or

(6)(7) Charges a patient based on the term of a written certification issued to the patient.

Section 11. That § 34-20G-78.1 be AMENDED:

34-20G-78.1. An entity is guilty of a Class 2 misdemeanor if the entity:

(1) Offers a discount, deal, or other financial incentive for making an appointment with a practitioner for the purpose of receiving a written certification; or

(2) Charges a practitioner's patient based on the duration of a written certification issued to the patient.

Section 12. That § 34-20G-88 be AMENDED:

34-20G-88. Confidential data or data that is not a public record kept or maintained by the department may only be disclosed only as necessary to:

(1) Verify a registration certificate or registry identification card, pursuant to this chapter;

(2) Notify law enforcement of an apparent criminal violation of this chapter, or respond to law enforcement or prosecutorial officials engaged in the investigation or enforcement of the criminal provisions of this chapter;

(3) Notify state and local law enforcement about falsified or fraudulent information, submitted for the purpose of obtaining or renewing a registry identification card;

(4) Notify the applicable licensing board if there is reason to believe that a practitioner provided a written certification and the department has reason to believe the practitioner otherwise violated the standard of care for evaluating a medical condition or respond to the board, if the board is seeking data relevant to an investigation of a person who holds a license issued by the board;

(5) Any judicial authority under grand jury subpoena or court order or equivalent judicial process for investigation of criminal, civil, or administrative violations related to the use of medical cannabis;

(6) An authorized employee of the department performing official duties associated with the medical cannabis program; or

(7) A practitioner to determine if a person in the practitioner's care engages in the medical use of cannabis so the practitioner may assess possible drug interactions or assess other medically necessary concerns.

Section 13. That § 34-20G-94 be AMENDED:

34-20G-94. The On or before September first of each year, the department shall provide a report annually to the Legislature on the regarding:

(1) The number of applications for registry identification cards received; the

(2) The number of qualifying patients and designated caregivers approved; the

(3) The number of registry identification cards revoked; the

(4) The number of each type of medical cannabis establishment registered; the

(5) The expenses incurred and revenues generated from the medical cannabis program; the

(6) The number of patient cardholders qualifying patients by medical condition;

(7) The qualifying patient demographics by age and sex; the

(8) The number and specialty of the practitioners providing written certifications; the

(9) The number of medical cannabis establishments by type; the

(10) The number of licensing violations determined by the department; the

(11) The impact of medical cannabis on public safety, public health, and behavioral health services; any other information regarding the

(12) The effects of medical cannabis on the public; and any

(13) Any recommendations for statutory changes.

The department may not include identifying information on a qualifying patient, designated caregiver, or a practitioner in the report.