Hawaii Governor Signals Veto Of Medical Marijuana Expansion Bill, Calling One Provision A ‘Grave Violation Of Privacy’
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Hawaii Gov. Josh Green (D) has signaled his intent to veto a controversial marijuana bill that would have allowed patients to enroll in the state’s medical cannabis program for any health condition their doctor sees fit—but which critics warned also raised serious privacy concerns.
Initially intended to expand access to medical marijuana, HB 302 would allow patients to receive recommend medical cannabis recommendations through telehealth visits rather than having to establish an in-person relationship with a provider.
But lawmakers on a conference committee revised the plan, inserting a provision to allow the state Department of Health to access medical marijuana patient records held by doctors for any reason whatsoever—what Green called “a grave violation of privacy.”
On Friday, the governor included the bill as one of 19 measures on his intent-to-veto list, though he has until July 9 to decide whether in fact to reject the bills.
“This administration remains committed to Hawai‘i’s existing medical cannabis program and supports efforts to expand access to medical cannabis for any medical condition,” the governor’s office said in a statement. “Although this bill’s authorization of medical cannabis certifications via telehealth expands access to medical cannabis, provisions authorizing the inspection of patients’ medical records without warrant constitute a grave violation of privacy.”
Green acknowledged patients might be especially concerned about removing privacy protections given that marijuana remains federally illegal, noting that those concerns could actually limit enrollment in the state-legal system.
“Given that the federal government classifies cannabis as a Schedule I substance,” his office said, “patients’ reasonable fears of repercussions based upon information gained from inspection of their personal medical records may deter patients from participating in the medical cannabis program.”
Some lawmakers warned at the time of the conference committee change that the medical records provision would be an issue.
“The medical cannabis community has expressed its opposition to this breach of confidentiality,” Rep. Kim Coco Iwamoto (D) said last month, “especially since it is authorized without any suspicion of wrongdoing and without a warrant. This will further deter already low patient and provider participation.”
She 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.”
Reform advocates initially supported HB 302 as a means to expand access to patients with conditions beyond those specified under state law. But most withdrew support following the conference committee revisions.
Specifically, the revised bill authorized the Department of Health to “inspect a qualifying patient’s medical records held by the physician, advanced practice registered nurse, or hospice provider who issued a written certification for the qualifying patient.”
Providers who didn’t comply with a department request for a patient’s records could have seen their ability to issue medical cannabis revoked.
Another change would establish a new Class C felony for unlicensed operation of a dispensary, adding another major charge on top of the state’s existing laws against illegal distribution of marijuana.
Karen O’Keefe, director of state policies for Marijuana Policy Project, said on Monday that the group was “encouraged to see HB 302 on Gov. Green’s list of bills he may veto.”
“While we strongly support allowing medical cannabis certifications by telehealth and trusting doctors to certify cannabis for any medical condition, the revised bill does more harm than good,” she told Marijuana Moment in an email. “It would allow the health department to snoop in medical cannabis patients’ medical records absent any allegation of wrongdoing while siphoning off $750,000 from the medical cannabis fund for six new enforcement agents targeting cannabis and hemp.”
She also noted that unlike an earlier version of the bill, the form approved by the bicameral conference committee limited which doctors could recommend marijuana to patients for conditions not explicitly listed.
“The conference committee bill also dramatically weakened HB 302’s vital provision allowing physicians and [advanced practice registered nurses] to certify medical cannabis for any medical condition, making it close to ineffectual by limiting it to primary treating medical providers.”
O’Keefe has said in the past that in Hawaii, only “about 6% of actively treating physicians are recommending medical cannabis… So in practice, the vast majority of patients have to go to a specialist for their medical cannabis recommendation.”
The provision could have also complicated the process of obtaining a medical marijuana recommendation for patients without a primary care physician, veterans whose primary care doctors work for the federal Department of Veterans Affairs (VA) and others.
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 that bill late 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). Specifically, it will remove a distinction between marijuana and other Schedule V drugs for the purposes of the expungement program.
The bill’s proponents said the current wording of the law forces state officials to comb through thousands of criminal records manually in order to identify which are eligible for expungement under the pilot program.
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).
Had the measure become law, it would have increased the amount of cannabis decriminalized in Hawaii from the current 3 grams up to 15 grams. Possession of any amount of marijuana up to that 15-gram limit would have been classified as a civil violation, punishable by a fine of $130.
A Senate bill that would have legalized marijuana for adults, meanwhile, ultimately stalled for the session. That measure, SB 1613, failed to make it out of committee by 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. Ahead of that hearing, the panels received nearly 300 pages of testimony, including from state agencies, advocacy organizations and members of the 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. Some read the move as a sign the regulatory agency saw a need to prepare to the potential reform.
Federal Health Officials ‘Rejected’ DEA’s Request To Testify At Marijuana Rescheduling Hearing, Agency Tells Judge
Photo courtesy of Philip Steffan.
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