PA’s Safe Harbor Letter for medical marijuana

The Pennsylvania Department of Health (DOH) has published temporary regulations 28 PA. Code Ch. 1131 et seq. relating to “Safe Harbor Letter”. The temporary regulations are published by the DOH under Pennsylvania’s Medical Marijuana Act (the “MMA”) see 35 P.S. §§10231.101-10231-2110. The temporary regulations pertain to section 2106 of the MMA (35 P.S. §§10231.2106), which specifically states it is not a violation of the MMA or the Controlled Substance, Drug, Device and Cosmetic Act, if a parent or guardian of a minor child under 18 years of age lawfully obtains medical marijuana from another state, territory of the United States or any other country to be administered to the minor. In short, the temporary regulations set forth the requirements for an “Applicant” to obtain a “Safe Harbor Letter” to obtain medical marijuana for a minor child out of state until Pennsylvania sets up its Medical Marijuana Program.

The temporary regulations set forth the requirements for an Applicant. An Applicant must be a parent, legal guardian, caregiver or appropriate individual under section 506 of the MMA. The temporary regulations incorporate many of the terms and definitions in the MMA including the allowable form of “medical marijuana” and the 17  “serious medical conditions”.

In order to obtain a Safe Harbor Letter, an Applicant must complete the application set up by the DOH at https://apps.health.pa.gov/PASafeHarbor/. The process will require the Applicant to provide a criminal history record information check from the Pennsylvania State Police. The Applicant will also be required to submit a Safe Harbor Physician Form, a copy of which can be found here, https://apps.health.pa.gov/PASafeHarbor/Documents/Safe%20Harbor%20Letter%20Dr%20Form%20Final.pdf.

The Applicant will be asked to provide the name, address, and date of birth of both Applicant and minor. If minor was not born within Pennsylvania then the minor’s state and county of birth must be provide as well. A copy of legal guardianship papers, if necessary or copies of proof of marriage if Applicant is under 21 and minor’s spouse. The Applicant’s proof of residency will also required. Acceptable proof is Driver’s License, PennDoT issued I.D. card, or other form of photo I.D. approved by DOH.

The Applicant must verify that the Applicant shall obtain medical marijuana lawfully in another state.

The Applicant must agree to hold harmless and defend the Commonwealth from any civil and criminal penalties. The Applicant must also agree to the Limitation of Liability provision under the temporary regulations which state that the Commonwealth shall not be liable to any state or entity from where the marijuana was purchased, to any physician, to any caregiver, family members or guests for any damage, injury, loss, etc, arising out of growing, processing dispensing transportation or sale of medical marijuana.

The Safe Harbor Letter remains in effect so long as the child is a minor and suffers from the serious medical condition, the Applicant and Physician do not change, the minor’s residency remains in Pennsylvania and/or the Applicant is no longer capable of carrying out his responsibilities under section 2106 of the MMA.

The Safe Harbor Letter is also subject to termination upon the publishing of permanent regulations by the DOH for the medical marijuana program in the Pennsylvania Bulletin.

The DOH may deny, revoke or suspend a Safe Harbor Letter if there is evidence of the following: 1) criminal conviction of the sale or possession of drugs within the 5 years; 2) history of dug use; 3) history of diversion of a controlled substance or illegal drugs; 4) conviction of a crime of moral turpitude; 6) or any intentional or reckless violation of the temporary regulation.

The temporary regulations are set to expire May 17, 2018, or when Pennsylvania’s Medical Marijuana program becomes effective, which ever occurs first.