BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON HEALTH
                          Senator Ed Hernandez, O.D., Chair

          BILL NO:                    AB 258    
           --------------------------------------------------------------- 
          |AUTHOR:        |Levine                                         |
          |---------------+-----------------------------------------------|
          |VERSION:       |March 25, 2015                                 |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |HEARING DATE:  |June 10, 2015  |               |               |
           --------------------------------------------------------------- 
           --------------------------------------------------------------- 
          |CONSULTANT:    |Reyes Diaz                                     |
           --------------------------------------------------------------- 
          
           SUBJECT  :  Organ transplants: medical marijuana: qualified  
          patients.

           SUMMARY  :  Prohibits the eligibility determination of a patient on the  
          organ transplant waiting list from being based solely on his or  
          her status as a qualified patient for medical marijuana (MM), as  
          specified, or based solely on a positive test for the use of MM  
          by a qualified patient.
          
          Existing law:
          Federal law
          1)Establishes the American with Disabilities Act (ADA) for the  
            purpose of eliminating discrimination, including in health  
            services, against individuals with disabilities. Defines  
            "disability" as a physical or mental impairment that  
            substantially limits one or more major life activities of an  
            individual. Defines "major life activity," in general, as  
            caring for oneself, performing manual tasks, seeing, hearing,  
            eating, sleeping, walking, standing, lifting, bending,  
            speaking, breathing, learning, reading, concentrating,  
            thinking, communicating, and working.

          State law
          2)Establishes the Compassionate Use Act, enacted by the approval  
            of Proposition 215 at the November 6, 1996 statewide general  
            election, which allows patients and their primary caregivers  
            to obtain and use MM, as recommended by a physician, in the  
            treatment of cancer, anorexia, AIDS, chronic pain, spasticity,  
            glaucoma, arthritis, migraine, or any other illness for which  
            MM provides relief.

          3)Establishes the Uniform Anatomical Gift Act, which regulates  
            the making and distribution of organ donations.







          AB 258 (Levine)                                    Page 2 of ?
          
          

          4)Prohibits the eligibility determination of a patient on the  
            organ transplant waiting list from being based on his or her  
            physical or mental disability. Specifies that "disabilities"  
            has the same meaning as used in the ADA. Provides an exception  
            to the extent that the physical or mental disability has been  
            found by a physician and surgeon, following a case-by-case  
            evaluation of the potential recipient, to be medically  
            significant to the provision of the anatomical gift.
          
          This bill:
          1)Prohibits a hospital, physician and surgeon, procurement  
            organization, or other person from determining the ultimate  
            recipient of an anatomical gift based solely on a potential  
            recipient's status as a "qualified patient," pursuant to the  
            Compassionate Use Act, or based solely upon a positive test  
            for the use of MM by a potential recipient who is a qualified  
            patient. Provides an exception if a qualified patient's use of  
            MM has been found by a physician and surgeon, following a  
            case-by-case evaluation of the potential recipient, to be  
            medically significant to the provision of the anatomical gift.

          2)Applies the prohibition in 1) above to each part of the organ  
            transplant process, including, but not limited to:

                  a)        The referral from a primary care provider to a  
                    specialist;
                  b)        The referral from a specialist to a transplant  
                    center;
                  c)        The evaluation of the patient for the  
                    transplant by the transplant center; and,
                  d)        The consideration of the patient for the  
                    placement on the official waiting list.

          3)Requires the court to accord priority on its calendar and  
            handle expeditiously any action brought to seek any remedy  
            authorized by law for purposes of enforcing compliance with  
            the provisions in this bill.

          4)Specifies that the provisions in this bill do not require  
            referrals or recommendations for, or the performance of,  
            medically inappropriate organ transplants.

           PRIOR  
          VOTES  :  








          AB 258 (Levine)                                    Page 3 of ?
          
          
          
           ----------------------------------------------------------------- 
          |Assembly Floor:                     |64 - 12                     |
          |------------------------------------+----------------------------|
          |Assembly Health Committee:          |13 - 3                      |
          |                                    |                            |
           ----------------------------------------------------------------- 
           
          COMMENTS  :
          1)Author's statement.  According to the author, arcane public  
            health policies treat MM patients as drug abusers. As a  
            result, patients are denied a life-saving organ transplant  
            solely because their physicians recommend the use of MM. Many  
            of these patients have died after being dropped from waiting  
            lists, and many more are in jeopardy right now. This bill will  
            save lives by ensuring MM patients are not discriminated  
            against in the organ transplant process.
            
          2)Background.  The Organ Procurement and Transplantation Network  
            (OPTN) is a public-private partnership that links all  
            professionals involved in the United States donation and  
            transplantation system. The United Network for Organ Sharing  
            (UNOS) serves as the OPTN under contract with the Health  
            Resources and Services Administration of the U.S. Department  
            of Health and Human Services. Currently, every transplant  
            hospital program and organ procurement organization in the  
            U.S. is an OPTN member. Membership means that their transplant  
            programs are certified by UNOS and that they play an active  
            role in forming the policies that govern the transplant  
            community. In California, there are 21 transplant centers  
            (hospitals) and four organ procurement organizations (OPOs),  
            which are authorized by the Centers for Medicare and Medicaid  
            Services to procure organs for transplantation. Each  
            individual hospital comes up with their own policies to  
            evaluate patients and determine eligibility to receive an  
            organ transplant. UNOS develops the policies to determine how  
            available organs are distributed among eligible patients  
            waiting for a transplant. According to OPTN, there are  
            currently 123,288 people in the U.S. waiting for a life-saving  
            organ transplant, and every 10 minutes another person is added  
            to that list. According to UNOS, approximately 23,000  
            Californians are on the waiting list for an organ transplant.  
            Americans for Safe Access (ASA), the sponsor of this bill,  
            estimates that 1,150 Californians are currently on a  
            transplant waiting list and at risk for being denied an organ  








          AB 258 (Levine)                                    Page 4 of ?
          
          
            transplant due to their MM use.

          3)Substance use vs. abuse.  A 2011 study published in the  
            University of Michigan Journal of Law Reform, "Transplant  
            Candidates and Substance Use: Adopting Rational Health Policy  
            for Resource Allocation," notes that the autonomy OPOs and  
            hospitals have in determining selection criteria for  
            transplant recipients has led to striking differences in  
            selection tactics with regard to individuals who present  
            issues of substance use and abuse, and one of the greatest  
            areas of regulation that lacks medical and policy foundation  
            is MM use and cigarette smoking. The evidence of cigarette  
            smoking harm is clear. According to the World Health  
            Organization, tobacco use causes 8.8 percent of deaths  
            worldwide and kills more than 430,000 U.S. citizens each year,  
            more than alcohol, cocaine, heroin, homicide, suicide, car  
            accidents, fire, and AIDS combined. Yet, according to a 2008  
            study of substance abuse policies for liver transplant  
            candidates, those who smoke cigarettes are much more readily  
            accepted by liver transplant centers than those who use MM,  
            even though MM has been found to have beneficial health care  
            uses, including relieving pain and curbing nausea.    
            
          4)The effect of MM on organ transplant recipients.  A 2009 study  
            published in the American Journal of Transplantation,  
            "Marijuana Use in Potential Liver Transplant Candidates",  
            notes that tetrahydrocannabinol, commonly known as THC, the  
            active component in marijuana, may contribute to the  
            development of various liver diseases and could exacerbate  
            liver disease. However, the study also notes that cannabinoids  
            have been shown to help regulate immune system functions and  
            to have anti-inflammatory properties, potentially reducing the  
            risk of organ rejection. The study finds that, overall, the  
            survival of marijuana users with chronic liver disease who  
            present for transplant evaluation is not significantly  
            different from marijuana non-users and from those findings,  
            the study concludes that marijuana users are not  
            systematically exposed to excess risk of mortality.

          5)Existing policies on MM use and organ transplants. According  
            to the California Hospital Association, policies regarding the  
            criteria for MM use and organ transplants vary at each  
            hospital. The eligibility to receive an organ depends upon the  
            type of transplant in question and often includes active  
            alcohol and drug abuse as a disqualifier. Some hospitals allow  








          AB 258 (Levine)                                    Page 5 of ?
          
          
            patients with a history of alcohol or substance abuse to be  
            given the opportunity to re-apply for transplantation after  
            documented compliance with conditions such as abstinence,  
            attending substance abuse treatment, and demonstrating  
            negative drug tests. Many hospitals make exceptions to their  
            illicit substance use policies for MM when lawfully  
            recommended by a physician for medical purposes prior to  
            evaluation. 

            The California Medical Association passed a resolution in  
            December 2014 urging transplant programs to clearly indicate  
            their policies on the use of cannabis to waiting list  
            candidates prior to evaluation of candidacy and opposing  
            blanket restrictions of potential organ transplant donors and  
            recipients based solely on reported or detected MM use. 
             
            Six states provide legal MM patients the protections proposed  
            in this bill: Arizona, Delaware, Illinois, Minnesota, New  
            Hampshire, and Washington.
            
          6)Aspergillus. Some hospitals make the distinction between  
            smoking and ingesting MM due to the risk of the mold  
            Aspergillus, which can grow on cannabis products and, when  
            smoked, can lead to fatal infections for those with  
            compromised immune systems. According to the Centers for  
            Disease Control and Prevention, most people breathe in  
            Aspergillus spores every day without getting sick. The  
            National Institutes of Health states that Aspergillosis is an  
            infection or allergic response due to the Aspergillus fungus,  
            which is commonly found growing on dead leaves, stored grain,  
            compost piles, or in other decaying vegetation, as well as on  
            marijuana leaves. 


            The National Library of Medicine Web site cites a report,  
            "Fatal Aspergillosis associated with smoking contaminated  
            marijuana, in a marrow transplant recipient," in which a  
            34-year-old man presented with pulmonary Aspergillosis on the  
            75th day after marrow transplant for chronic myelogenous  
            leukemia. The patient had smoked marijuana heavily for several  
            weeks prior to admission. Despite aggressive antifungal  
            therapy, the patient died. The report states that physicians  
            caring for such patients should be aware of this potentially  
            lethal complication, especially since patients may smoke  
            marijuana to relieve nausea from chemotherapy. ASA states that  








          AB 258 (Levine)                                    Page 6 of ?
          
          
            numerous professional testing laboratories are now testing  
            legal MM for contaminants, and routine screening for  
            microorganisms would detect Aspergillus and a wide range of  
            other natural contaminants.
            
          7)Policy question. The ADA protects against discrimination,  
            including in health services, for those with disabilities that  
            substantially limit one or more major life activities. Prop  
            215 allows a qualified patient to obtain and use MM, as  
            recommended by a physician, in the treatment of cancer,  
            anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis,  
            migraine, or any other illness for which MM provides relief.  
            AB 1689 (Leiber and Berryhill, Chapter 629, Statutes of 2007),  
            prohibits the eligibility determination of a patient on the  
            organ transplant waiting list from being based on his or her  
            physical or mental disability, and specifies that  
            "disabilities" has the same meaning as used in the ADA. Is it  
            possible that pursuant to federal definitions in the ADA,  
            qualified patients who obtain and use MM to provide relief for  
            illnesses that often substantially limit one or more life  
            activities already have protection in current state law  
            pursuant to AB 1689?

          8)Prior legislation. AB 1689 (Lieber and Berryhill), prohibits  
            the eligibility determination of a patient on the organ  
            transplant waiting list from being based on his or her  
            physical or mental disability, as specified.
            
          9)Support. ASA, the sponsor, states that this bill will extend  
            the same protections to legal MM patients that already exist  
            under California law for patients with physical and mental  
            disabilities. Health, Education & Legal Patients' Rights notes  
            it has been 18 years since the Compassionate Use Act was  
            passed, yet our medical industry and the state Legislature  
            have not kept up with the current times or protected the  
            rights of patients that use MM. The Drug Policy Alliance (DPA)  
            argues that even after nearly two decades of MM use in this  
            state, qualified patients can still lose their jobs, housing,  
            children, veterans' benefits, and professional licensure  
            without cause other than their status as a MM qualified  
            patient. DPA states that this is not the case in other states  
            that have approved MM and taken steps to protect MM patients.  
            The Marijuana Policy Project argues that California has the  
            largest population of MM patients in the country, many of whom  
            are gravely ill and for whom MM has been proven to offer  








          AB 258 (Levine)                                    Page 7 of ?
          
          
            relief for a wide variety of conditions.
          
           SUPPORT AND OPPOSITION  :
          Support:  
               Americans for Safe Access (sponsor)
               Alameda County Central Democratic Committee
               California Cannabis Industry Association
               California Chapter of the National Organization for the  
          Reform of Marijuana Laws
               Crusaders for Patients' Rights
               Drug Policy Alliance
               Emerald Growers Association
               Greater Los Angeles Collective Alliance
               Health, Education & Legal Patients' Rights
               Legal Services for Prisoners with Children
               Marijuana Policy Project
               Mendocino Cannabis Policy Council
               Hundreds of individuals
          
          Oppose:   None received.
          
                                      -- END --