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Oregon NORML Charges Washington County with Unlawful Breach of OMMP Patient ConfidentialityForward by Tim King Salem-News.com
Oregon's biggest group representing medical marijuana users, goes legal on the cops, alleging serious, direct violations of the Oregon Medical Marijuana Act (OMMA):
(PORTLAND, Ore.) - Patient confidentiality is possibly one of the cornerstones of American freedom. We may pay through the nose for healthcare in this land of freedom, but at least those records are our personal business.
Oregon NORML (National Organization for the Reform of Marijuana Laws) Executive Director Madeline Martinez, sent Salem-News.com a copy of a letter they have forwarded to the Washington County Sheriff's Office, charging the agency with recent breaches in patient confidentiality released to the public and media, in addition to the alleged abuses of the Oregon Medical Marijuana Program (OMMP).
Needless to say, police agencies and even the United Nations Office of Drug Control, are having a hard time accepting the increasing popularity and legalization of medical marijuana in the United States, and right here in Oregon.
Washington County, accounts for a large part of the Portland, Oregon Metropolitan area and a sizable number of interspersed communities.
Here is the letter from NORML and their legal team, to the Washington County Sheriff's Office:
March 8, 2010
Sheriff, Washington County Sheriff’s Office
215 SW Adams, MS 32
Hillsboro, OR 97123
Subject: Unlawful Breach of OMMP Patient Confidentiality by Washington County Sheriff’s Office
We are writing to express our concerns about recent breaches in patient confidentiality released to the public and media, in addition to the alleged abuses of the Oregon Medical Marijuana Program (OMMP). We understand that the OMMP creates some distinct challenges for law enforcement in addressing the illicit production and distribution of marijuana. However, we feel that by releasing confidential information, your office is in direct violation of the Oregon Medical Marijuana Act (OMMA):
We feel that this breach of confidentiality also violates the Federal Health Insurance Portability and Accountability Act (HIPAA), which is further supported by the OMMA’s statement of their own liability to protect the confidentiality of patient information:
The OMMP follows all Department of Human Services policies on the Health Insurance Portability and Accountability Act (HIPAA). HIPAA uses terms such as "identified data" and "de-identified" or "non-identifying data." "Identified data" means data that can specifically identify individuals, such as name or date of birth. "De-identified" or "non-identifying data" means data that protects the identity of specific individuals. For example, a count of the number of patients currently registered with the OMMP does not allow the identification of specific individuals.[ii]
Regarding the alleged abuses of the OMMP, we find it deceptive that your media release sites confidentiality as a factor in your inability to substantiate the claims of abuses alleged by your office. Your October 3, 2008 memo states, “Detectives from the Westside Interagency Narcotics (WIN) Team are concerned about an increasing number of illegal marijuana grows associated with the Oregon Medical Marijuana Program (OMMP).” If these abuses are actually occurring on the scale presented in such vague memos as this, law enforcement should be able to track an equal number of sanctions through the OMMP record, without the need to violate patient confidentiality:
In addition to any other penalty allowed by law, a person who the Department of Human Services finds has willfully violated the provisions of ORS 475.300 to 475.346, or roles adopted under ORS 475.300 to 475.346, may be precluded from obtaining or using a registry identification card for the medical use of marijuana for a period of up to six months, at the discretion of the department. [1999 c.4 §5; 1999 c.325 §3; 2005 c.322 §13; 2007 c.573 §4][iii].
Further, upon conviction:
Notwithstanding paragraph (a) of this subsection, if a registry identification cardholder has been convicted of violating ORS 475.340 (1)(a) or (b) the registry identification cardholder or the designated primary caregiver of the cardholder may possess one ounce of usable marijuana at any given time for a period of five years from the date Of the conviction.[iv]
Since clear sanctions are in place for violation of the OMMA, and law enforcement and DHS are both authorized to share this information, these abuses should be readily available by contacting the DHS offices to obtain records of the total number of such sanctions that have been levied.
Your right to inform the public of criminal activity through media releases does not nullify a patient’s right to privacy, as you clearly recognize in your media release dated October 3, 2008 which states, in part:
While these crimes occur in Washington County and throughout Oregon, the public is unlikely to know about this trend because Oregon law (ORS 475.331) provides that if law enforcement obtains information about OMMP participants from the official OMMP list, they cannot release or use that information except to verify the person has a valid card. This reduces the public’s ability to understand the challenges faced by narcotics investigators and shields the public from seeing the negative public safety impacts of OMMP laws.[v]
We do not doubt that there may be some who take advantage of the program; however, we feel that this statement in 2008 is demonstrated blatantly false by the subsequent media releases from your office that are dated from September 2009 through January 29, 2010, which clearly show that your office does not take the confidentiality of OMMP patients seriously.
While it might be true that those involved in the aforementioned releases were accused of criminal activity involving marijuana, this should not negate their right to confidentiality under the OMMA. Even if they were found guilty of marijuana-related crimes, the protection afforded by the OMMA is neither suspended nor does it grant allowances for release of patient information by law enforcement for the prosecution of a crime. Indeed, their status as an OMMP cardholder is irrelevant in the prosecution of a crime if they are in violation of the program. If they are found guilty of a marijuana-related charge, there are sanctions under the OMMP in addition to any criminal penalties.
Ultimately, we are writing to request that your office revisit the issue of patient confidentiality concerns with all law enforcement staff, and return to your stated policy of not releasing protected confidential information to the public. Further, we request that your office, in conjunction with DHS, provide the public with the statistics of the number of sanctions that have been levied so that the public can “understand the challenges faced by narcotics investigators.” The statistics alone should be sufficient to demonstrate the “increasing number of illegal marijuana grows associated with the Oregon Medical Marijuana Program (OMMP).”[vi]
The public and the OMMP patients do have a right to know the extent of the abuse of the Oregon Medical Marijuana Program so that we can all work together to resolve the issues surrounding the illicit trafficking of marijuana. However, patients should not stand for their right to patient confidentiality being violated, regardless of whether or not they have committed a crime. The criminal record and OMMP status are only relevant to the two authorized agencies – law enforcement and DHS. Please desist from further violation of such confidential information.
We look forward to reviewing the sanction statistics confirming abuses in order to improve upon the Oregon Medical Marijuana Program, and the enactment of proper redaction of confidential information from the police reports prior to release to the public, as required by law.
CC: Paul Loney
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