Following his recent announcement of an upcoming veto against a medical marijuana bill in Hawaii that was intended to broaden access, Hawaii Gov. Josh Green, a Democrat from Hawaii, signed the law into effect over the past weekend despite the fact that a recent provision which he called “a grave breach of privacy” was included.
HB302 is a reform that will affect patient access in two ways. The first is that it gives a primary treating physician the right to recommend marijuana regardless of whether or not it meets Hawaii’s qualifying conditions. The law allows for patients to get medical cannabis recommendations via telehealth, instead of having to meet with their provider in person.
A conference committee revised this plan before lawmakers passed the bill on to Green. They added a clause allowing the Department of Health of the State to have access to medical marijuana records kept by doctors, for whatever reason.
In the new bill, it is allowed for the Department of Health “to examine the medical records of a qualified patient held by their physician, advanced-practice registered nurse or hospice provider that issued a certification in writing.” If a provider does not provide the department with records of a qualifying patient, their right to distribute medical cannabis could be revoked.
Initially advocates backed HB 302 in order to provide access for patients who have conditions other than those covered under the state’s law. Many retracted their support after the changes made by the conference committee.
A new provision creates a Class C felony charge for the unlicensed operation a marijuana dispensary. This is a major addition to state laws already in place against the illegal distribution of cannabis.
In early June, Green himself put the cannabis measure on a list of bills he intended to veto—an indication, though not a commitment, that he was leaning towards rejecting it.
His office stated at the time that “although this bill authorizes medical cannabis certifications through telehealth, it expands the access to medical marijuana.” However, the provisions authorizing inspections of patient medical records without warrants constitutes a grave breach of privacy.
Green said patients may be particularly concerned that privacy protections are removed, given marijuana is still illegal at the federal level. She noted that these concerns might actually reduce enrollment in state-legal systems.
His office stated at the time that “patients may be deterred from taking part in the program due to their reasonable fear of consequences based on information obtained from the inspection of personal medical records.”
After the revision a week earlier, the bill still remained in the list of governors who intend to veto it.
Green didn’t say why he changed his mind when HB 302 was signed into law Sunday.
Nikos Leverenz of Hawai’i Health and Harm Reduction Center and Drug Policy Forum of Hawai’i told MEDCAN24 he thought the state “moved backwards” to protect individual autonomy in cannabis use over the past year. He said that “HB302 is a good example of this regression.”
In an email, he said: “Funding more law enforcement officers and granting government attorneys access to doctor-patient records will further weaken Hawaii’s already-weak medical cannabis system.”
Leverenz demanded that Green “take the initiative and introduce bills during the next legislative sessions which actually expand the access to medical marijuana.”
The measures include providing statutory protections against discrimination in the workplace for those registered as medical cannabis users, giving patients access to products containing medical cannabis within hospices and long-term health care facilities (Ryan’s Law), allowing certification providers to use their professional judgment to suggest its use.
Some members of Congress warned, at the time the conference committee made changes to HB302, that the provision for medical records would make it difficult for patients who might want them.
Kim Coco Iwamoto, a Democratic Representative from California said that the medical cannabis community had expressed their opposition to this breach in confidentiality. “Especially since it’s authorized without suspicion or warrant.” It will discourage patients and doctors from participating in the program.
Iwamoto called the proposal “unprecedented given the degree of respect our state has previously demonstrated for patient–doctor privileges, and how often the state defers to the expertise of physicians and healthcare providers.”
Other measures recently sent to the governor’s desk include SB 1429, which would allow medical marijuana caregivers to grow marijuana on behalf of up to five patients rather than the current one. Green signed this bill last month.
Lawmakers also recently sent a bill to the governor that would help speed the expungement process for people hoping to clear their records of past marijuana-related offenses—a proposal Green signed into law in April.
That measure, HB 132, from Rep. David Tarnas (D), is intended to expedite expungements happening through a pilot program signed into law last year by Gov. Josh Green (D). The program will eliminate the distinction made between marijuana and Schedule V drugs in the context of expungement.
Bill’s supporters said that the existing wording in the law requires state officials manually to search through thousands of criminal histories to determine which records are eligible to be expunged under the pilot project.
Hawaii’s Senate back in February narrowly defeated a separate proposal that would have increased fivefold the amount of cannabis that a person could possess without risk of criminal charges. The body voted 12–11 against the decriminalization measure, SB 319, from Sen. Joy San Buenaventura (D).
If the bill had become law, the amount of marijuana decriminalized would have been increased from 3 to 15 grams. The possession of up to 15 grams of marijuana would be considered a civil offense punishable with a $130 fine.
Meanwhile, the Senate’s bill to legalize marijuana for adults was unable to pass. SB 1613 was unable to get out of committee in time for a legislative deadline.
While advocates felt there was sufficient support for the legalization proposal in the Senate, it’s widely believed that House lawmakers would have ultimately scuttled the measure, as they did last month with a legalization companion bill, HB 1246.
Last session, a Senate-passed legalization bill also fizzled out in the House.
This year’s House vote to stall the bill came just days after approval from a pair of committees at a joint hearing. Before the hearing, nearly 300 pages were submitted by state agencies and advocacy groups, as well as members of the general public.
This past fall, regulators solicited proposals to assess the state’s current medical marijuana program—and also sought to estimate demand for recreational sales if the state eventually moves forward with adult-use legalization. Others interpreted the move to be a signal that regulators needed to get ready for the reform.
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