South Dakota lawmakers kill bill to restrict medical marijuana doctors

When you talk about the will of the people, they want it to be accessible. “When you talk about the people’s will, they want this to be accessible .”

By John Hult, South Dakota Searchlight

A Senate committee chaired Wednesday by a member from the Medical Marijuana Oversight Committee of the state shot down a controversial bill that would have had far-reaching consequences for cannabis patients.

Seven of the nine bills that were introduced to change South Dakota’s laws on medical cannabis during this legislative session, in Pierre, are still alive. These include bills to increase the cost of a license for a dispensary, to allow police to conduct searches of dispensaries, and to force prescribers notify their primary care providers about a patient receiving a card.

Jeremiah Murphy is a lobbyist with the Cannabis Industry Association of South Dakota. He says that the Senate Bill 8, which has been withdrawn, was the one that most concerned cannabis advocates.

The law would have required that citizens obtain medical marijuana cards through their primary healthcare provider or a referral by this provider. It also defined the definition of a primary health care provider. Opponents claimed it paved the way for criminal charges against doctors who prescribe marijuana.

Murphy told South Dakota Searchlight that Senate Bill 82 “was absolutely the most serious threat of all the threats out there,” after the bill was defeated by a vote of 5-2 in the Senate Health and Human Services Committee. They got a lot feedback from patients about that one. The beehive was poked and the bees popped out.

The threat of criminal charges against doctors was the deciding factor in Sen. Erin Tobin’s (R-Winner) decision. Tobin, a registered nurse, chairs the Senate Health and Human Services Committee. She is also a member of the Medical Marijuana Oversight Committee, along with Jim Mehlhaff, the sponsor of the bill (R-Pierre).

The oversight committee held meetings in 2023, but it did not adopt any of the ideas that were discussed. Mehlhaff, Tobin and other cannabis-related bills were all introduced in the 2024 legislative session. However, the two differed on SB 82.

Tobin was particularly troubled by the bill’s attempts to define “primary care provider”, a term that is too flexible to be used in legal terms, for a profession whose roles are far too fluid to fit neatly into legal language.

She said that some people go to cardiologists as their primary doctor. Some doctors may not refer their patients to a specialist to obtain a marijuana license. Some people don’t even have a primary doctor and instead go to a clinic for care.

Murphy stated that 30% of Americans do not have a primary doctor.

Tobin said Wednesday that doctors who are unsure about their legal status as primary care physicians may be less likely to prescribe medical marijuana to patients who otherwise qualify.

Tobin stated, “If this has a questionable component to it, doctors will just pull out.”

Sponsor System not working

He said Mehlhaff received a lot of feedback on his bill. He said that most of the feedback was in reference to the ballot question which legalized medical marijuana 4 years ago.

Mehlhaff replied, “That’s not what I am doing.” “That’s not what I do.”

He presented the bill to cure “pop-up” clinics and satellite medical offices, which offer patients a way to obtain a medical marijuana license outside of a clinic setting.

In 2020, 74 percent of voters endorsed the initiative that legalized medical marijuana. The language of the bill envisaged medical cards being issued to patients via a doctor with whom they have a “bona-fide doctor-patient relationship” or through a referral.

Mehlhaff’s bill would have removed that language and added a definition for “primary health care provider.” It also made it clear that doctors who prescribe pot without having a prior relationship with a patient will be charged as a Class 2 misdemeanor.

Mehlhaff stated that the current language doesn’t prevent abuse of the system.

Mehlhaff stated that the law requires doctors to establish a “bona-fide” doctor-patient relation before prescribing marijuana.

Mehlhaff stated, “I believe that they prey on the addictions of people a lot.”

Tamara Grove is a lobbyist with the anti-cannabis organization Protecting South Dakota Kids. She told the committee nearly three times more people have medical marijuana cards than they expected. There are 13150 patient cards approved in South Dakota.

Grove says that if people are getting cards for recreational marijuana use, it means the voters’ will has not been respected.

Grove stated that “the people of South Dakota voted for medical marijuana as a law.” “What they didn’t vote for was recreational marijuana.”

Mehlhaff stated that the bill would place the power to prescribe marijuana into the hands of primary-care doctors. This, he said, is the way medical decisions should be made.

He said: “That’s what we want: medical marijuana to be treated the same as any other medication prescribed by professionals.”

Opponents: Pitch may restrict access to patients

Tobin’s concern was centered on the definition of primary care providers and SB 82’s possible unintended consequences. The opposing members of the committee focused on the lack of data that could prove people were abusing the system. They also pointed out the impact for patients who do not have primary care doctors and veterans who receive their primary care from the Veterans Affairs (VA Health System).

VA doctors are not allowed to prescribe medical marijuana.

Sydney Davis, R-Burbank Senator, said: “I have concerns regarding its practical application.”

Davis also disputed the idea that the bill created parity between marijuana, other medications and alcohol. Davis said that doctors don’t have to be primary care providers (which she called “PCPs”) to write an opioid prescription.

Davis stated that “we don’t do this for anything else.” We don’t do this, whether it’s pain medication or painkillers. You don’t need a PCP.”

Sen. Shawn Bordeaux, D-Mission, highlighted the difficulty Native Americans have in finding a primary doctor on reservations. He said that in many cases, the Indian Health Service’s (IHS) overbooked physicians are the only real health care options on reservations.

Like the VA, the IHS prohibits its doctors from prescribing cannabis, which is legal in most states, but illegal under federal laws.

Bordeaux stated that “the IHS is a problem.” For many people living in my area and other communities, it is difficult to find a primary doctor. Often, it is the emergency room.

Sen. Tim Reed, R-Brookings, said that he is not convinced there are enough facts to prove abuse and restrict access for patients who have legitimate medical needs. Mehlhaff, when questioned by Reed admitted that there are no data backing claims of widespread abuse.

Reed stated that “some people will slip through the process.” “But it’s important to make this process accessible.” “When you speak of the will of people, they want to make it accessible.”

Still alive are other pot bills

Tobin reminded members of the committee, just before they voted to reject SB 82 that there are several other cannabis bills still in the works.

She referred to SB 10, which requires any provider who signs off on a card for medical marijuana to inform the patient’s primary provider. Tobin, the primary sponsor of this bill, said on Monday that an exchange of information is part of medical standards.

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Tobin, South Dakota Searchlight’s reporter, told South Dakota Searchlight that “primary care provider” is not defined in the law, but Tobin said after Wednesday’s hearing, current medical marijuana laws already require patients to establish a relationship with their provider before they can get a card or be referred to another provider by a doctor who knows and works with them.

Tobin stated, “There should have had been some communication prior to this visit.” “I’m sure that doesn’t happen all the time, but it’s how it should be.”

Tobin says that the federal Health Insurance Portability and Accountability Act, or HIPAA, prohibits medical professionals from disclosing personal information. However, Tobin also said that this act is only applicable to medical services covered by insurance.

Tobin stated that marijuana does not travel through these routes. “If I owned a clinic, i would ensure that policies and procedures were in place to guarantee confidentiality. Is it a HIPAA rule? I don’t have the answer. “I would say no, because it is going down a different route.”

SB 10 was approved by the Senate with a vote of 30-3.

Murphy told South Dakota Searchlight his group’s opposition against the bill was not based on privacy concerns. The group opposes the bill because it is redundant with another bill which would place medical cardholders in a database of prescription drug monitors that could be accessed by all doctors within the state.

Murphy stated that “our objection was that this was superfluous.”

SB 82 is the only cannabis bill currently before the legislature that aims to restrict marijuana card access in the same way. SB 11 forbids practitioners from referring patients to clinics in which they, or their families, have financial interests. However, it does not change the current definition of primary care providers or amend existing law regarding doctor-patient relationships.

This bill was also passed by a Senate Committee and on the Senate Floor.

The Other 2024 Marijuana Bills

House bill 1024 Requires that applications for medical marijuana cards note the fact that federal law prohibits the possession of firearms by those who “use or addicted to marijuana.” HB1024 passed the House by a vote 68-1. The Senate Health and Human Services passed it on Wednesday and the bill now moves to the Senate Floor.

House bill 1036 Requires marijuana shops to post an announcement on how marijuana could affect firearms rights. HB 1036 was passed by the House with a 42-27 vote, but rejected by the Senate Health and Human Services Committee.

Senate Bill 12 : Allows employers to prohibit marijuana use in jobs that are safety-sensitive. SB 12 was passed by the entire Senate with a vote of 32-1. The next hearing for the bill will be held in the House Judiciary Committee.

Senate bill 42 This bill makes several changes to the existing medical cannabis laws, including adjustments to the probation policies for dispensaries who violate regulations. The most significant change would be the addition of the names and addresses of medical cannabis cardholders into the state’s drug monitoring program. The database contains the names of anyone who has been prescribed a narcotic. This is used by providers as a way to detect doctor shopping by addicts. SB 42 was approved by the Senate with a vote of 29-4. The House Health and Human Services will now hear the bill.

Senate bill 43: The state fee for dispensary licensing applications is increased from $5,000 to $14,000. Fines of up $10,000 can be imposed on dispensaries that misbehave. And the Department of Health may terminate the license of a dispensary for repeated regulatory violations. SB 43 was passed by the Senate with a vote of 22-11 and will now be sent to the House Health and Human Services Committee.

Senate Bill 70: This bill repeals a provision of South Dakota’s Medical Marijuana Statute that prohibits law enforcement officers from inspecting dispensaries or manufacturing or testing facilities or seizing cannabis. On Tuesday, the Senate passed SB71 with a vote of 26-7. The bill is now headed to the House Health and Human Services Committee.

This article was originally published by South Dakota Searchlight.