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Libertas Institute opposes this bill.

Current law in Utah allows a parent of a child in a public or private school to abstain from (or delay) vaccinations based on a personal or religious exemption. To qualify, parents must obtain and complete a form from their local health department to claim the exemption. The signed form is filed with the child’s school.

Close to 20 states provide for a personal exemption from vaccination requirements, and nearly all provide for religious exemptions. Most recently, the law in California was changed to prohibit the personal exemption, becoming the third state to do so in addition to West Virginia and Mississippi.

Representative Carol Spackman Moss has sponsored House Bill 221, which imposes a variety of hurdles and requirements on parents seeking the personal exemption for the vaccinations of their children in government schools.

Presently, exemption forms are one-time affairs. Once complete, they are attached to the student’s permanent school record and are transferred with that record to the student’s new school, should the student’s family move. HB221 would require parents to annually submit a new form for medical exemptions, and complete an “online education module,” as explained below. Completion of these forms often carries a fee for each child, in addition to the increased time burden required each year as a condition of receiving the exemption.

Those wishing to claim a personal or religious exemption must submit a form one time only, yet every year must complete the “online education module.” This government propaganda portal will contain information about vaccine preventable illnesses, recommendations on how unvaccinated individuals should behave to minimize the risk of contracting or transmitting a vaccine preventable illness, information about vaccine benefits and side effects, and interactive questions or activities.

Completion of this online course is mandatory—never mind the fact that many parents who delay or abstain from vaccination for their children do so after significant study of medical research and the benefits and risks of vaccinations. Requiring parents to be indoctrinated from biased sources of information (because the government rarely admits to the risks involved in vaccinating children) is violative of their fundamental rights as the stewards of their children’s information.

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Libertas Institute supports this bill.

At present hospitals are able to shield themselves from competition by birthing centers, operated by midwives, by denying them the ability to expand their business and provide more rules. This administrative barrier requires midwives to have a transfer agreement with a hospital as a condition of expansion. No hospitals in Utah will enter into an agreement with midwives.

This is an issue nationwide, with birthing centers in many states being limited in their expansion opportunities due to protectionist policies such as this. The American Association of Birth Centers, in a letter to the Federal Trade Commission, recently highlighted the core problem:

Depending upon state laws and rules, birth centers frequently operate in a needlessly restrictive regulatory environment which is often exacerbated by hostile or exclusionary practices on the part of dominant provider groups, health plans and other payers and professional liability insurers.

Senate Bill 108, sponsored by Senator Deidre Henderson, resolves this issue in Utah by statutorily prohibiting the Health Facility Committee from requiring “a birthing center or a licensed maternity care practitioner who practices at a birthing center” to require specific things, including a transfer agreement, as a condition of allowing free-standing birthing centers from establishing and expanding.

While large players in regulated markets have the tendency to use government power to shield themselves from competition, this is not the proper role of government. Free-standing birthing centers, which compete with hospitals, should not be denied the opportunity to expand by requiring them to first obtain permission from their primary competitors. Further, because hospitals will admit anybody who walks into their doors, a transfer agreement—while helpful—should not be required.

Thursday, January 28, 2016 | 2 comments

The 2016 Real State of the State

Last night, Governor Gary Herbert addressed government officials and members of the public to deliver his annual “State of the State” address. He touched on job creation, education, air quality, self-reliance, and health care, among other issues. Below, we present the real state of the state—one that does not rely, in whole or in part, upon politically popular issues that poll well with key constituencies.

What is the state of the state?

Governor Herbert posed this question to the assembled audience, answering it in the affirmative—that the state is strong, and even “outstanding.” Nevertheless, the state faces significant challenges that were not addressed in the speech, and need serious scrutiny in order to protect the rights of each Utahn. We would disagree with the Governor’s assessment; while it’s easy to point to the growth of the market as a leading indicator of the government’s performance, this data point is peripheral to the underlying issues where the state is not performing very well.

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Libertas Institute supports this bill.

Utah law prohibits a person from having a concealed firearm, imposing a class B misdemeanor as the penalty. Anybody who obtains a concealed firearm permit is exempted from this provision.

Three years ago, the legislature passed a bill that would have also exempted any person 21 years or older “who may lawfully possess a firearm, as long as the firearm is not loaded.” The bill was vetoed by the Governor, and the legislature failed to muster enough interest in holding a veto override session.

Senator David Hinkins has introduced Senate Bill 97 to re-introduce the concept. Whereas the previous bill specified that a weapon concealed would have to be unloaded, SB97 contains no such qualifier; adults 21 or older would be able to legally conceal a weapon, whether loaded or not.

While we would favor reducing the age to 18—that of a legal adult—this bill is an important protection of the right to keep and bear arms; the government’s permission should not be needed to exercise a fundamental right.

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Libertas Institute supports this bill.

State employees hired to administer the laws established by the legislature often lobby Senators and Representatives to give them more tax revenue, increase their power, or expand the scope of their authority. This practice would begin to end under House Bill 197, sponsored by Representative Marc Roberts.

The bill focuses only on state employees within the executive branch, when acting within the scope of the individual’s employment; unfortunately, it does not limit the lobbying ability of county or city employees.

HB197 also allows such individuals to request legislation to be sponsored, testify before committee, or answer questions asked by a legislator. The bill also prohibits state entities from taking public stances on bills being considered by the legislation.

These employees are hired—and paid by taxpayers—to administer the laws, not influence them. Too often, at present, these individuals push an agenda on Capitol hill and try to kill legislation that might alter their practice, reduce their authority, or require them to do something they desire not to. This practice should end, and this bill is a good step in the right direction.

To track the status of this bill, find it on our Legislation Tracker.
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Libertas Institute supports this bill.

In a 2008 study of children in Utah’s foster care system, 31% of children (833 out of 2,651) had been prescribed one or more psychotropic medications. A 2001 to 2004 study of such children found that 18% were given such drugs for “oppositional defiant disorder,” 17% for “reactive attachment and adjustment disorders,” and 15% for “mood disorders.”

Children in foster care system are more likely to be given such mind-controlling substances, according to a recent study conducted by the federal Government Accountability Office (GAO). In Utah, the 31% rate for foster care children is dramatically higher than the 6% rate for children statewide.

In March, a report by the inspector general at U.S. Department of Health and Human Services identified problems in more than two-thirds of claims submitted for psychotropic drugs paid for through Medicaid, which provides medical coverage for most children in foster care. The identified concerns included too many drugs (37 percent); wrong dosage (23 percent); poor monitoring (53 percent); or wrong treatment (41 percent). The report recommended that states increase oversight and conduct reviews of psychotropics prescribed to children. Another report, concluded in 2010, showed psychotropic medication being handed out at double the rate compared to a decade prior.

During a meeting for the Child Welfare Oversight Panel in September 2015, Brent Platt, director of the Division and Child and Family Services (DCFS), “suggested that the foster care program could benefit from a child psychiatrist on staff to evaluate individual cases and, in some cases, suggest alternatives to medication.”

To that end, Senator Wayne Harper has sponsored Senate Bill 82. The bill would require DCFS to set up an oversight pilot program consisting of a child psychiatrist and an advanced practice registered nurse (APRN) which would receive records on children in state custody, review their medical care, and determine whether “there are less invasive treatment options available to meet the foster child’s needs,” along with other conclusions such as the risks and benefits of the psychotropic medication being prescribed to the child. The panel’s recommendations would be provided to the child’s health care providers.

The oversight program is intended, at present, to only operate for a few years; the bill would automatically repeal it on July 1, 2019, unless a future legislative session extended or eliminated the repeal date.

Additionally, SB82 would codify in statute a recent practice of DCFS to conduct evidence-based safety and risk assessments when removing children from the custody of their parents. These assessments would review, at a minimum: the threat of harm to the child; the ability of the parent to protect the child; the child’s particular vulnerabilities; interventions required to protect a child; and the likelihood of future harm to a child. Assessments would be made available to the parents, and various government agencies, prior to the shelter hearing where parents are first able to contest the removal of their children. Finally, judges would be required to review the assessments when determining whether the child should remain in state custody.

It’s quite reasonable to conclude that children—especially teenagers—who are removed from their families would exhibit defiant behavior or a “mood disorder.” The high rate of psychotropic medication—drugs that can be extremely dangerous, and even fatal—is extremely worrisome. At a very minimum, this effort to impose oversight on the process is welcome and necessary.

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Libertas Institute supports this bill.

Under current law in Utah, the state may treat legal adults as minors if the adult is between 18 and 21 years of age, and if a juvenile court has ordered the state to maintain custody.

What this means is that a minor in the state’s custody who turns 18 may not return home, if the person wishes to do so, should the judge disagree for any reason. This happens in Utah—and it’s wrong.

Senator Al Jackson has sponsored Senate Bill 79 to resolve this issue. It would specify, simply, that a minor means “a person under 18 years of age”—and not adults under 21 who are ordered by a judge to remain in custody of the state.

Earlier this month, a Utah court of appeals ruled in State v. Ainsworth that the penalties under the state’s Controlled Substance Act, which criminalize having “any measurable amount” of a controlled substance in your body, are unconstitutional. This is because the law penalizes the same conduct worse than the DUI statute and is thus unconstitutional as it violates the uniform operation of laws provision of the Utah Constitution.

As the court wrote, “there does not appear to be any rational basis for punishing individuals who have ‘any measurable amount’ of controlled substance in their bodies more harshly than individuals who have an incapacitating amount of the substance in their bodies.” The court went on to rule that there is no “rational basis for charging users of nonprescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher-degree crime than users of nonprescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to operate a vehicle. Thus, we agree… that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.”

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Libertas Institute supports this bill.

Utah law prohibits car dealers from selling vehicles “on consecutive days of Saturday and Sunday,” and because all of them sell on Saturday when consumers are busy spending money, they all close on Sunday.

In 2000, Larry H. Miller heavily lobbied for a change in Utah law—through a bill sponsored by Senator Paula Julander—to protect his car dealerships from national competition. The national chains usually operate on each day of the week, and Miller did not operate his dealerships on Sunday. (The same does not hold true for his Megaplex movie theaters.)

Violating this prohibition is a class B misdemeanor and would result in over $50,000 in annual fines were a dealership to remain open on both days year-round. Of course, few dealerships (if any) are interested in violating this protectionist policy; Libertas Institute previously contacted over a dozen dealerships and those who responded liked the law, without exception. “Retail industry is hard work!” one dealer told us. “So one day should be taken off. Naturally, it should be Sunday.” Another said that “working six days per week is plenty,” noting that Sunday is the best day to take off “so people can go to church that day.”

House Bill 176, sponsored by Representative Marc Roberts, would repeal this provision of law, removing the protectionist language and protecting the free market as required by Utah’s Constitution.

Despite their competition being open on Sundays, such businesses as Hobby Lobby and Chick-fil-A close on Sunday, and yet their businesses thrive. Rather than seeking to employ the arm of the state to enforce such desires as part of a protectionist economic scheme, businessmen in Utah should learn from these examples and voluntarily adhere to a day of rest, should they choose to do so.

Tuesday, January 19, 2016 | 19 comments

SB73: The Utah Medical Cannabis Act

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Libertas Institute supports this bill.

Senator Mark Madsen has sponsored legislation that would allow patients suffering from a few conditions to possess and use cannabis, with a doctor’s approval and recommendation. Senate Bill 73 would prohibit smoking, but allow the individual to ingest cannabis for relief or treatment through an oil, topical, vapor, or edible.

Last year, Senator Madsen attempted to legalize medical cannabis; the bill failed by a single vote in the Senate. This year’s bill is significantly different, and much more highly regulated—crafted with input from state agencies and regulators, patients, industry representatives, and advocates. It crafts the right approach in opening up a tightly regulated marketplace for this medicine, while providing a safe harbor to sick and suffering Utahns who should not be subjected to the criminal justice system.

Below is a detailed summary of the bill, broken down by category, with line numbers in the bill provided for reference.

Doctor Involvement

  • Physicians may not be employed by cannabis growing, processing, or testing facilities, or dispensaries, and may not have any ownership interest in a dispensary. (420, 1219-1222)
  • Physicians who recommend cannabis to a  patient fill out and submit an application online during an office visit with the patient. The information is saved into the electronic verification system, to which state agencies and law enforcement have access. (788-791)
  • Physicians who voluntarily choose to recommend cannabis to patients under the law are shielded from civil and criminal liability, and licensure sanctions. (860-869)
  • A Compassionate Use Board of physicians may hear applications for a one-off compassionate use approval for conditions not listed in the bill; physicians and satisfactory evidence would be required, and the Department of Health would over final say in issuing a card. (930-996)
  • Physicians must be licensed and certified by their appropriate American medical board, in a limited few specialities pertaining to the list of conditions allowed for medical cannabis use. (999-1021)
  • Physicians who voluntarily choose to recommend cannabis must complete training administered by the Department of Health. (1008-1010)
  • Physicians may only recommend cannabis to 20% or less of their patients, unless they receive approval from the Compassionate Use Board upon demonstrating that the physician’s practice has unique characteristics that warrant an increase. (1011-1012, 1023-1027)
  • Physicians may only advertise online that they recommend cannabis; no other advertising is allowed. (1221-1222)

Law Enforcement and Oversight

  • An inventory control system is required, which tracks every single cannabis plant from its infancy, harvest, processing, and sale to the end user.  (227-248)
  • A video recording system is required minoring all cannabis businesses at all times. 45 days worth of video must be stored, it must be tamper proof, and cameras must monitor “all handling and processing of cannabis.” (232-239)
  • An electronic verification system is required that allows patients and physicians to apply, connects to the inventory control system to track who purchased cannabis, where, and when, and will be accessible by law enforcement. (818-856)
  • The Departments of Agriculture and Health may revoke licenses and impose penalties for violation of the law—up to $5,000 per violation. (604-647, 1327-1350)
  • Medical cannabis patients, and industry owners and employees, are not subject to marijuana law penalties provided they are in full compliance with the Medical Cannabis Act. (1547-1639)

Patient Use

  • Smoking cannabis is prohibited. (1632-1637)
  • Applicants who qualify must submit to the Department of Health a signed recommendation by a  physician, pay a fee, and provide personal information. (754-769)
  • A parent or legal guardian may obtain a permit for a minor who qualifies and receives a recommendation from a doctor. (770-787)
  • Frail patients may indicate up to two caregivers who may, upon application and approval, receive a card allowing them to obtain and transport cannabis to the patient. Caregivers must pass a background check and may be excluded for certain felonies. (792-804, 904-928)
  • Medical cannabis cards are valid for the lesser of: an amount of time specified by the physician; or two years. They are renewable provided that physician approval is given. (805-815)
  • Those who obtain a card must carry it with them at all times outside their residence, and cannabis must be in packaging that contains the bar code to allow it to be tracked. Such persons have a rebuttal presumption of legal use if questioned by law enforcement. (873-901)
  • Patients who do not qualify under the included list of conditions may seek approval from the Compassionate Use Board for their condition. (931-996)
  • Qualifying patients must have one of the following conditions: AIDS, Alzheimer’s, ALS, cancer, Crohn’s disease, Epilepsy, MS, PTSD related to military service, or chronic pain. To qualify for chronic pain, the physician must first determine that the individual is at risk of becoming chemically dependent on, or overdosing on, opiate-based pain medication. (1030-1046)
  • Government employees may not be terminated for using medical cannabis. (1050-1068)
  • In a custody dispute or proceedings to terminate parental rights, a court may not discriminate against a parent because of the parent’s possession or consumption of medical cannabis. (1418-1421, 1832-1834)
  • Medical cannabis patients have an affirmative defense against the state’s metabolite law that prohibits driving with any amount of metabolite, whether it is pharmacologically active and impairing or not. (1437-1441)
  • Police officers and Division of Child and Family Services employees may not take a child into custody on the sole basis of the possession or use of medical cannabis in the home, if done in compliance with the Medical Cannabis Act. (1717-1719)

Taxes

  • Tax revenue from the sale of cannabis is deposited into the Medical Cannabis Restricted Account. This revenue may only be used to fund the state regulation of medical cannabis. (735-750, 1683-1684)
  • Medical cannabis is exempt from sales tax. (1642-1651)
  • A retail purchase of medical cannabis is assessed a 4.7% tax. (1669-1671)

Cannabis Production Establishments (Grows, Processing facilities, Independent Testing Laboratories)

  • Applicants for a license must have $250,000 in liquid assets, submit a detailed application, pay a large application fee, and pass a background check. (256-338)
  • All employees must submit an application, pay a fee, pass a criminal background check. Convicted felons may not be employed by these facilities. (341-356)
  • Employees transporting cannabis must carry their registration card at all times; there is a rebuttable presumption that such individuals are carrying cannabis legally. Cannabis being transported must be labeled, bar coded, and monitored. (390-404, 449-464)
  • A security system is required that can provide notice of unauthorized entry to law enforcement. (408-415)
  • A physician may not be employed by these facilities. (420)
  • Local governments may not enact zoning ordinances that prohibit these facilities on the sole basis that they are cannabis production establishments; they are a permitted use in agricultural, industrial, or manufacturing zones. (423-429)
  • The Department of Agriculture may inspect a facility’s records up to three scheduled times per year, and one unscheduled time per year—or at any time the department has reason to believe a law has been violated. (432-440)
  • These facilities may not advertise to the general public in any way. (443-444)

Growing Cannabis

  • Home grows are prohibited.
  • Cannabis grown may not be visible from the street level outside the facility. (473-475)
  • The Department of Agriculture will establish administrative rules regarding pesticide and fertilizer use to ensure cannabis grown is safe for human use. (486-492)
  • All harvested cannabis is tracked with a unique identifier. (476-479)

Processing Cannabis

  • Products must have a label that contains detailed information about the cannabis, along with bar code and unique ID tracking to tie it to the processed and harvested cannabis from which it originated. (512-520)
  • Cannabis products must be in a tamper resistant package that is not appealing to children and is opaque. (521-526)
  • Cannabis products may not be in a physical form that is appealing to children. (525-526)
  • The Department of Health may create administrative rules regarding the physical criteria for cannabis products. (531-533)
  • No products are allowed that apply cannabis agents to the surface of an existing food product not produced by that facility (e.g. candy, cookies, and other pre-made foods). (534-536)
  • The Department of Agriculture may establish product quality standards for cannabis products to ensure safety for human consumption. (539-546)

Testing Cannabis

  • A person may not obtain a testing facility license, or work for a testing facility, if they have an ownership interest in, or are employed by, a dispensary, processing facility, or cultivation facility. (325-333, 557-558)
  • All cannabis or cannabis products must be tested to determine the cannabinoid profile, and if it contains any mold, fungus, pesticides, other microbial contaminants, or residual solvents. (566-576)
  • Tested cannabis that is found to be unsafe for human consumption must be reported to the Department of Agriculture. The cannabis may be seized, embargoed, or destroyed. (588-600)

Dispensaries

  • Applicants must have $500,000 in liquid assets, submit a detailed application, pass a background check, and pay a large fee. (1072-1101)
  • Dispensary licenses are valid for two years, and renewable. (1104-1108)
  • Dispensaries are limited to one per county, except counties of more than 200,000 residents, in which one dispensary for 200,000 residents may be issued. (1135-1138)
  • The Department of Health will evaluate applicants to determine which has best demonstrated experience with a related business, operating a secure inventory control system, complying with a regulatory environment, training and monitoring employees, and which applicant has connections to the local community and can best reduce the cost of cannabis to the patient. (1139-1149)
  • All employees must submit an application, pay a fee, pass a criminal background check. Convicted felons may not be employed by a dispensary. (1152-1188)
  • Employees transporting cannabis must carry their registration card at all times; there is a rebuttable presumption that such individuals are carrying cannabis legally. Cannabis being transported must be labeled, bar coded, and monitored. (1192-1205)
  • Only those with a medical cannabis card may enter. (1210-1211)
  • Dispensaries must have a single, secure public entrance, a security system, and track everything in the inventory control system. (1210-1218)
  • No cannabis may be consumed at the dispensary. (1225-1226)
  • Dispensaries may only sell cannabis, cannabis products, cannabis devices (such as vaporizers), or educational materials related to the medical use of cannabis. (1232-1236)
  • Dispensaries may only sell, in any one 30-day period, 2oz. or less of unprocessed cannabis, or cannabis products that contain 10 grams or less of cannabinoids. All purchases are tracked to ensure dispensary shopping, to exceed this limit, does not occur.  (1239-1255)
  • Devices (vaporizers) that resemble a cigarette are prohibited. (1256-1257)
  • Cannabis products sold must be clearly labeled in tamper resistant containers that are bar coded and tracked. (1264-1272)
  • Dispensaries may not advertise, except for signage on the building that contains the dispensary’s name, hours of operation, a green cross, and a website address. (1275-1283)
  • The Department of Health may inspect a dispensary’s records up to three scheduled times per year, and one unscheduled time per year—or at any time the department has reason to believe a law has been violated. (1286-1293)
  • Local governments may not enact zoning ordinances that prohibit dispensaries on the sole basis that they sell cannabis; they are a permitted use in agricultural, industrial, or commercial zones. (1296-1304)

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