BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 258|
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THIRD READING
Bill No: AB 258
Author: Levine (D), et al.
Amended: 3/25/15 in Assembly
Vote: 21
SENATE HEALTH COMMITTEE: 8-0, 6/10/15
AYES: Hernandez, Nguyen, Hall, Mitchell, Monning, Pan, Roth,
Wolk
NO VOTE RECORDED: Nielsen
ASSEMBLY FLOOR: 64-12, 4/30/15 - See last page for vote
SUBJECT: Organ transplants: medical marijuana: qualified
patients
SOURCE: Americans for Safe Access
DIGEST: This bill 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.
ANALYSIS: Existing federal law 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
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tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.
Existing state law:
1)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.
2)Establishes the Uniform Anatomical Gift Act, which regulates
the making and distribution of organ donations.
3)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
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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.
Background
1)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
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currently on a transplant waiting list and at risk for being
denied an organ transplant due to their MM use.
2)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.
3)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.
4)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
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type of transplant in question and often includes active
alcohol and drug abuse as a disqualifier. Some hospitals allow
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.
5)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
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lethal complication, especially since patients may smoke
marijuana to relieve nausea from chemotherapy. ASA states that
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.
6)Policy question. The ADA protects against discrimination,
including in health services, for those with disabilities that
substantially limit one or more major life activities.
Proposition 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 (Lieber 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?
Comments
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.
Prior Legislation
AB 1689 (Lieber 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, as specified.
FISCAL EFFECT: Appropriation: No Fiscal
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Com.:NoLocal: No
SUPPORT: (Verified6/15/15)
Americans for Safe Access (source)
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
OPPOSITION: (Verified6/15/15)
None received
ARGUMENTS IN 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 an 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
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of whom are gravely ill and for whom MM has been proven to offer
relief for a wide variety of conditions.
ASSEMBLY FLOOR: 64-12, 4/30/15
AYES: Achadjian, Alejo, Baker, Bloom, Bonilla, Bonta, Brown,
Burke, Calderon, Chang, Chau, Chiu, Chu, Cooley, Cooper,
Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia,
Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley,
Harper, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Lopez, Low, Mathis, Mayes, McCarty,
Medina, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Perea,
Quirk, Rendon, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood,
Atkins
NOES: Travis Allen, Bigelow, Brough, Beth Gaines, Gallagher,
Gatto, Grove, Jones, Maienschein, Melendez, Patterson,
Steinorth
NO VOTE RECORDED: Campos, Chávez, Dahle, Ridley-Thomas
Prepared by:Reyes Diaz / HEALTH /
6/16/15 11:56:52
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