Caregivers and the New Regs
The caregiver program still needs work. Here’s a quick breakdown of the rule that goes into effect on October 5. (Note I cut and pasted parts of the rule, and then explain what it means below.
Rule: (b) Designated caregivers twenty-one years of age or older, caring for a certified patient either younger than twenty-one years of age or whose physical or cognitive impairments prevent them from cultivating cannabis, may cultivate cannabis for use by such patient, provided that no patient may have more than one designated caregiver grow on their behalf.
Means: patients can only have one caregiver growing for them, and you can’t grow for yourself and have a caregiver at the same time.
Rule: (f) No certified patient or designated caregiver shall sell or barter any cannabis seeds, immature cannabis plants, mature cannabis plants, or cannabis, produced by a plant cultivated pursuant to this Part, to any other person.
Means: the DC’s can’t sell the homegrow.
Rule: This subdivision does not prohibit the transfer, without compensation, to a certified patient or a designated caregiver twenty-one years of age or older, up to three ounces of cannabis and up to twenty-four grams of concentrated cannabis.
Means: You can give 3 zips or 24 grams of concentrate to another caregiver or to a patient
Rule: A certified patient or designated caregiver may lawfully possess up to five pounds…
Means: 5 lbs. at home. The rule is 5 pounds at home, three ounces out and about.
Rule: Except as otherwise approved by the Office, no certified patient or designated caregiver shall process cannabis at home by means of any liquid or gas, other than alcohol, that has a flashpoint below 100 degrees Fahrenheit.
Means: you can make the old-fashioned stuff like brownies and bubble hash, but don’t try to make your own vape.
Rule: (i) Immature cannabis plants and mature cannabis plants must be stored in a secure location within a private residence or on the grounds of such certified patient or designated caregiver’s private residence; and reasonable measures must be taken to ensure that such plants, and any cannabis cultivated from such plants, is not readily accessible to anyone under the age of 21. Such reasonable measures may include but are not limited to:
(1) conducting cannabis cultivation in an enclosed area, which may not be plainly visible from public view, including from the street of the private residence or on the grounds of the certified patient or designated caregiver’s private residence; and
(2) locking and storing cannabis in a manner that prevents theft, loss, or access, which may include, but are not limited to locks, gates, doors, fences, and other barriers by an unauthorized person, including a person under the age of 21.
Means: DCs need to take reasonable measures to keep people from seeing the plants. Do you need a fence? Depends on where you live. Do you need a lock? Depends on who is around. If somebody complains, unless they are the snooping type, you probably haven’t done enough to keep it from public view. Check out yesterday’s post for a slightly more detailed discussion of a “secure location.”
Rule: Certified patients utilizing a designated caregiver shall identify a single site for cultivation of their medical cannabis.
Means: you can either grow at your own house, or the designated caregiver’s house. Not both.
Rule: Designated caregivers growing on behalf of a certified patient may grow up to three mature cannabis plants and three immature cannabis plants for one certified patient. A designated caregiver that is also a certified patient shall not grow more than three mature cannabis plants and three immature cannabis plants for their own use, nor any one of their individual certified patient's use. Provided however, if a designated caregiver grows for two or more certified patients, which may or may not include themselves, they shall not grow more than six mature cannabis plants and six immature cannabis plants on their own private residence at any one time. A designated caregiver may grow on behalf of, but no more than, four certified patients at a time, which shall not include themselves if they are a certified patient.
Means: The DC can grow 3 mature and 3 immature (aka your “3 & 3”) for one patient, or 6 & 6 for two or more, with a max of 4 patients. You can also grow for yourself, but that does not increase the plant limit. 6 & 6 is the max per residence. Some pretty low plant limits. This is the part of the regs we do not like.
Rule (l) In addition to the requirements in Section 115.2 of the Part, designated caregivers shall:
(1) keep any cannabis being cultivated for the designated caregiver’s certified patient separate from any other cannabis being cultivated, and in a manner that can readily determine to whom such cannabis plants belong;
Means: Keep the patients’ cannabis separate and organized. The APC specifically says DCs are not required to label plants, but are expected to be able to tell which plants go with which patient.
(2) only receive reimbursement for the actual costs of goods, materials, or utilities for which they have incurred expenses directly related to the cultivation of cannabis for the certified patient, and not receive reimbursement or compensation for their time, knowledge, or expertise;
Means: You can’t get paid to grow cannabis for somebody else. Actual expenses only.
(3) not sell any cannabis produced by any immature cannabis plant or mature cannabis plant which is or was cultivated for a certified patient, even if the certified patient no longer needs or wants such cannabis;
Means: You can’t sell it.
(4) only cultivate cannabis at, or on the grounds of, the designated caregiver’s private residence or the certified patient’s private residence.
Means: The DC can only grow it at home or at the patient’s home.
Rule: No landlord may refuse to lease…
Means: landlords can’t discriminate against you for being a patient or a DC. There’s more to it (especially if federal money is involved), but that’s the key takeaway. We’ll do a separate post on landlord/tenant and homegrow, but for caregivers this is the key takeaway.
That’s pretty much it. A few things that aren’t directly addressed, but are answered elsewhere. For example, towns are not allowed to opt out of the caregiver program, even if they opted out of adult use dispensaries and consumption lounges. Some things are not addressed, and are not yet answered elsewhere. For example, it’s not clear what will happen if you exceed your plant limit. And nothing in the rules appears to allow for inspection of a caregiver’s premises. I expect we’ll see guidance on these issues from the OCM in the future, but for now they are up in the air.
We will be lobbying for legislation that expands the caregiver plant limit.