Section 6 : Confidentiality

[t-pain]

i came up with this dumb idea in another thread.

now i'm wondering if i'm dumb or if this has any basis in reality.

 

does the confidentiality clause in the law prevent police from reporting MMMA patients to prosecutors?

people v koon states that all other laws inconsistent with this act are not applicable.

the act has penalties for any person or government employee that 'discloses confidental information in violation of this act'.

the act only mentions verifying a card with the police. not giving them any other details. which means even LARA employees are not protected if they disclose patient info.

 

 

333.26426 Administration and enforcement of rules by department.

6. Administering the Department's Rules.

 

 

(h) The following confidentiality rules shall apply:

(1) Subject to subdivisions (3) and (4), applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

(2) The department shall maintain a confidential list of the persons to whom the department has issued registry identification cards. Except as provided in subdivisions (3) and (4), individual names and other identifying information on the list are confidential and are exempt from disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

(3) The department shall verify to law enforcement personnel whether a registry identification card is valid, without disclosing more information than is reasonably necessary to verify the authenticity of the registry identification card.

(4) A person, including an employee, contractor, or official of the department or another state agency or local unit of government, who discloses confidential information in violation of this act is guilty of a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $1,000.00, or both. Notwithstanding this provision, department employees may notify law enforcement about falsified or fraudulent information submitted to the department.

 

maybe i'm crazy....

its a peoples initiative, which means they cant remove or add anything to it.

was it the intent of the voters to protect the confidentiality of patients and caregivers?

 

lets argue this out.

 

if the police arent protected, why?

'a person' of michigan is supposed to keep this confidential.

confidential medical information is protected in the doctor patient relationship.

hipaa has excluded law enforcement from penalties

 

if the police are protected, why?

someone has to enforce this law. (even tho it says lara right there in sec 6)

'in violation of this act' is not defined at all.

neither is confidentiality / confidential.

hipaa has excluded law enforcement from penalties

 

 

anyone care to ask a lawyer? michael komorn? anyone?

[CaveatLector]

Disclosure of the info must be in violation of the act.  So look to the act to find where the act prohibits disclosure.  Any disclosure made that violates that prohibition will be a disclosure in violation of the act.  The act does not prohibit ALL disclosures.

 

Look at (3) as you quoted it above.  It prohibits the dept. from disclosing any more info than necessary to verify the card.  So if the dept disclosed more info than necessary then that would be a violation.

[t-pain]

yes, thats how i read it. the question is ...

 

do you think police are protected from giving out patient info to prosecutors?

[CaveatLector]

What kind of patient info and for what reason? 

 

And when you say, "protected" to what are you referring?  Are you asking if they are protected from prosecution under the MMA?

[+washtenaut]

I don't think the law prevents the police from forwarding along arrest information to the prosecutor's office. (if that's where you were going)

 

In my opinion, as long as Schuette is the Attorney General in Michigan, no one will be prosecuted for violating the rights of the patient or caregiver. 

 

Which prosecuter in Michigan do you think would defy Schuette?

[t-pain]

I don't think the law prevents the police from forwarding along arrest information to the prosecutor's office. (if that's where you were going)

 

yes, thats my question.

 

by protected i meant are police protected from the misdemeanor charge in sec6h4.

are police excluded from the confidentiality breach penalties?

 

 

individual names and other identifying information on the list are confidential

thats what the police create a report with. individual names and other identifying info (patient number, addy etc).

 

if the confidentiality is meant to prohibit police from reporting to prosecutors, the act would still allow police to verify cards.

the limit of what the law enforcement can do is verify cards.

 

section 8 still works, in case a patient does not have his/her card. or if the patient breaks a sec4 rule. so that isnt negatory.

 

as for prosecutors going against schuette? no, i dont think any police will be prosecuted under the mmma.

but after the supreme court rules that confidentiality is king in this law, police will stop harassing patients no doubt.

 

btw does this mean any narcs who call the police with info on an MMMP patient, are breaking the confidentiality part as well?

Edited August 14, 2013 by t-pain

[bobandtorey]

yes, thats my question.

 

by protected i meant are police protected from the misdemeanor charge in sec6h4.

are police excluded from the confidentiality breach penalties?

 

 

thats what the police create a report with. individual names and other identifying info (patient number, addy etc).

 

if the confidentiality is meant to prohibit police from reporting to prosecutors, the act would still allow police to verify cards.

the limit of what the law enforcement can do is verify cards.

 

section 8 still works, in case a patient does not have his/her card. or if the patient breaks a sec4 rule. so that isnt negatory.

 

as for prosecutors going against schuette? no, i dont think any police will be prosecuted under the mmma.

but after the supreme court rules that confidentiality is king in this law, police will stop harassing patients no doubt.

 

btw does this mean any narcs who call the police with info on an MMMP patient, are breaking the confidentiality part as well?

 

 

section 8 still works, in case a patient does not have his/her card ?? 

do you really believe this just asking if you have heard of any jury trials lately that someone could use the word medical Marihuana  to a jury?

[CaveatLector]

btw does this mean any narcs who call the police with info on an MMMP patient, are breaking the confidentiality part as well?

 

 

You are missing the point.  The act states, in pertinent part: " who discloses confidential information in violation of this act"  It doesn't state, "who discloses confidential information."  It states, "who discloses confidential information in violation of this act."  Therefore you must be able to point to where in the act the disclosure was prohibited.  If you can do that then maybe you have a case. 

 

We have been on this merry-go-round before on this website.  Dig up the thread.  This has all been discussed before.

[t-pain]

i went back thru the search archives but did not find any thread on this subject.

there were threads about confidentiality with MDCH and federal law ... some doctor/patient confidentiality results too.

i would be happy to have an old thread pointed out to me, if you can help me find it?

 

like i said, the 'in violation of this act' is not defined.

what has been ruled on time and time again, is that the MMMA cannot have sections be made nugatory.

this is why the patient to patient transfers was ruled not protected by sec4, due to making caregivers nugatory.

 

if the police are exempt, it would be nugatory and contradictory to the entire paragraph of sec6h4.

sec6h2 provides an exemption from the FOIA.

why does it not provide an exemption for police to share patient info with prosecutors?

or an exemption for people reporting MMMP patients?

[CaveatLector]

like i said, the 'in violation of this act' is not defined.

They are ordinary words with ordinary meaning.  They do not need to be defined.  If a disclosure is made that is in violation of the act then there is trouble.  If there is a disclosure made that is not in violation of the act then you don't have trouble.

 

6(h)(2) and 6(h)(3) both give you specific situations where a disclosure would be a violation.  They even use the root word "disclose."  I guess I don't see what you are missing here.

[Chauncy Gardner]

When a police officer is shown a MM card, it seems that he would be bound by law to keep that information confidential unless there is a criminal investigation involving the card in which case the info would be shared with the court.

 

So is it possible that a police officer cannot divulge information about a medical marijuana patient unless it is done in the course of a criminal investigation? And if the officer (or anyone for that matter) divulged this information, could they be sued?

[t-pain]

well, its a theory anyway.

 

can someone ask michael about it on planetgreentrees tomorrow?

[t-pain]

heres something i found while browsing around:

http://www.co.genesee.mi.us/gcmpc-plan/files/docs/2010PF/Medical%20Marijuana%20Act%20_%20GFisher.pdf

 

 

RELEVANT PROVISIONS AND OMISSIONS
The fundamental authorizations
? Critical importance: Name and address of patient
and caregiver is not provided, and may not be
disclosed, to state, county, or local law
enforcement.
? The full extent of information that may be
disclosed to law enforcement involves a
verification provided by the Department to law
enforcement on whether an ID Card is valid

[t-pain]

michael says LEO sharing the patient info with the prosecutor department + patient attny is still 'confidential'.

 

i'd like to see this more figured out , if the definition of confidential includes sharing info with that many people.

Edited August 19, 2013 by t-pain

[t-pain]

noticed this in the LARA administrative rules, they have some different wording than the MMMA for the confidentiality.

this is very interesting:

 

 

Rule 333.121 Confidentiality.
Rule 21. (1) Except as provided in subrules (2) and (3) of this rule, Michigan medical marihuana
program information shall be confidential and not subject to disclosure in any form or manner. Program
information includes, but is not limited to, all of the following:
(a) Applications and supporting information submitted by qualifying patients.
(b) Information related to a qualifying patient's primary caregiver.
© Names and other identifying information of registry identification cardholders.
(d) Names and other identifying information of pending applicants and their primary caregivers.
(2) Names and other identifying information made confidential under subrule (1) of this rule may
only be accessed or released to authorized employees of the department as necessary to perform official
duties of the department pursuant to the act, including the production of any reports of non-identifying
aggregate data or statistics.
(3) The department shall verify upon a request by law enforcement personnel whether a registry
identification card is valid, without disclosing more information than is reasonably necessary to verify the
authenticity of the registry identification card.
(4) The department may release information to other persons only upon
receipt of a properly executed release of information signed by all individuals with legal authority to
waive confidentiality regarding that information, whether a registered qualifying patient, a qualifying
patient's parent or legal guardian, or a qualifying patient's registered primary caregiver. The release of
information shall specify what information the department is authorized to release and to whom.
(5) Violation of these confidentiality rules may subject an individual to the penalties provided for under
section 6(h)(4) of the act.

 

in my opinion this blocks reporters from reporting about patients as well. unless patient waives his/her confidentiality of course.

Edited January 5, 2014 by t-pain

[trichcycler]

bump

[medmanmike]

noticed this in the LARA administrative rules, they have some different wording than the MMMA for the confidentiality.

this is very interesting:

 

 

Rule 333.121 Confidentiality.

Rule 21. (1) Except as provided in subrules (2) and (3) of this rule, Michigan medical marihuana

program information shall be confidential and not subject to disclosure in any form or manner. Program

information includes, but is not limited to, all of the following:

(a) Applications and supporting information submitted by qualifying patients.

(b) Information related to a qualifying patient's primary caregiver.

© Names and other identifying information of registry identification cardholders.

(d) Names and other identifying information of pending applicants and their primary caregivers.

(2) Names and other identifying information made confidential under subrule (1) of this rule may

only be accessed or released to authorized employees of the department as necessary to perform official

duties of the department pursuant to the act, including the production of any reports of non-identifying

aggregate data or statistics.

(3) The department shall verify upon a request by law enforcement personnel whether a registry

identification card is valid, without disclosing more information than is reasonably necessary to verify the

authenticity of the registry identification card.

(4) The department may release information to other persons only upon

receipt of a properly executed release of information signed by all individuals with legal authority to

waive confidentiality regarding that information, whether a registered qualifying patient, a qualifying

patient's parent or legal guardian, or a qualifying patient's registered primary caregiver. The release of

information shall specify what information the department is authorized to release and to whom.(5) Violation of these confidentiality rules may subject an individual to the penalties provided for under

section 6(h)(4) of the act.

 

in my opinion this blocks reporters from reporting about patients as well. unless patient waives his/her confidentiality of course.

Does anyone know of a case where the 'confidentiality' issue is included? I would think the ACLU would be all over something of this nature.