Confidentiality .. It's In The Law. So What Does It Do For Us?

[peanutbutter]

(h) The following confidentiality rules shall apply:

 

(1) 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. Individual names and other identifying information on the list is confidential and is 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 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.

 

The information that is kept at the MDCH is not allowed to be divulged.

 

How does this section protect our community?

[Highlander]

In a recent post, a patient complains that his CG isn't doing the job. He wonders if he should share the CG's identity, presumably an on-line ID.

 

Can a patient divulge the real name of his CG? Can a patient divulge the screenname of his CG?

 

The Act appears to say "no."

 

Is this good for the community?

 

Others have talked about bad CG-patient relationships ending in a small claims suit. Does the confidentiality requirement prevent one from filing a lawsuit against the other? A suit would require disclosure of seemingly confidential information.

 

How about this one: Caregiver is involved in traffic stop. LEO smells mj. CG produces his card. Patient's name and DOB are listed on the back of CG's card. Disclosure of confidential info? Should we put electrical tape across the back of our CG card?

 

It would seems that the tighter the confidentiality requirements, the more room for error (running afoul of the law) for both patient and CG.

[peanutbutter]

How about we figure out what is very clear in this section of law?

 

It seems obvious that the criminal penalties apply to more than those that work at the MDCH.

 

At a minimum those criminal penalties apply to officials and employees of both state and local governments.

 

A strong case can be made that this protection can be waved by the patient. This is something that will likely be resolved in court.

 

Does the patient lose the confidentiality protection when they hand a police officer their ID card? The patient has divulged the information to the officer. Can the officer tell someone else "I just found out Dave is a caregiver?"

[Highlander]

Does the patient lose the confidentiality protection when they hand a police officer their ID card? The patient has divulged the information to the officer. Can the officer tell someone else "I just found out Dave is a caregiver?"

 

I don't think so.

 

I have held this opinion in my pocket as my way to address LEO if necessary.

 

If during a traffic stop an officer tries to badger a cardholder into telling where he got his meds, is he a also a patient (or also a CG, if he is a CG, how many patients does he have and who are they, etc., ...... one only needs to pull out of a copy of the Act and point to the confidentiality section and say "the law forbids me from disclosing the names of other patients or caregivers."

 

I think there are many good reasons to take the position that the confidentiality requirements apply to any person.

[bobandtorey]

we would like to be the first one's to file a Law suit against Oakland County

would we need a Lawyer to do it or can we do it are selfs?

 

 

[lawyercaregiver]

(1) Applications and supporting information submitted by qualifying patients, including information regarding their primary caregivers and physicians, are confidential.

 

 

Just one guys opinion but I think the confidentiality provision applies to the MDCH. This protects us by prohibiting the MDCH from turning over confidential information submitted in the patient applications. An overeager judge can order a patient to turn over documents in order to assert the affirmative defense and then they become public record and confidentiality goes out the window.

 

If you read the whole section it repeatedly references the MDCH ("the department") although at the end it refers to "any State employee."

 

I think confidentiality is to insure that patients do not get ratted out by the government agency they are turning over the information too (i.e. the MDCH). There is a criminal penalty for doing so.

 

I do understand your argument and I WOULD KEEP RAISING IT if I was defending a patient in court.

 

It is arguable- I just don't think it is a winnable argument since when asserting the affirmative the burden is on the patient. Perhaps we can use the argument to say that possession of the card shifts the burden to the prosecution since the information is "confidential?"

 

Now if we find out the MDCH is turning over the confidential files they possess then I want a piece of that lawsuit. That would really make the bullschuette hit the fan.

[DenturesLost]

Just one guys opinion but I think the confidentiality provision applies to the MDCH. This protects us by prohibiting the MDCH from turning over confidential information submitted in the patient applications. An overeager judge can order a patient to turn over documents in order to assert the affirmative defense and then they become public record and confidentiality goes out the window.

 

If you read the whole section it repeatedly references the MDCH ("the department") although at the end it refers to "any State employee."

 

I think confidentiality is to insure that patients do not get ratted out by the government agency they are turning over the information too (i.e. the MDCH). There is a criminal penalty for doing so.

 

I do understand your argument and I WOULD KEEP RAISING IT if I was defending a patient in court.

 

It is arguable- I just don't think it is a winnable argument since when asserting the affirmative the burden is on the patient. Perhaps we can use the argument to say that possession of the card shifts the burden to the prosecution since the information is "confidential?"

 

Now if we find out the MDCH is turning over the confidential files they possess then I want a piece of that lawsuit. That would really make the bullschuette hit the fan.

 

I would agree but add to that. The section refers to the MDCH and the police. Then in the end it refers to the dept and any state or local employee. It is clear to me that the criminal offense would apply to the MDCH and that state and local was probably meant to refer to state and local police who have contact with the info during a stop. This makes sense because it is exactly what is addressed in the 2 prior paragraphs in that section. You have to read it in context and not remove it from the act and read it standing alone. However, I think there is a good argument that it does NOT apply to the police either but ONLY the MDCH.

 

(h) The following confidentiality rules shall apply:

 

(1) 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. Individual names and other identifying information on the list is confidential and is 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 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.

 

 

FURTHERMORE, what is being disregarded ENTIRELY here is that it does NOT read, "A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information is guilty of a misdemeanor..."

PB and others are interpreting it as if that is how it reads. It reads, "A person, including an employee 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..." So ask yourself where in the act is disclosure of confidential info a violation of the act? The only places are in h2 and h3. To suggest otherwise is to suggest that the words "in violation of this act" are meaningless and merely "extra."

[DenturesLost]

I would also point out the section of the law this falls under:

333.26426 Administration and enforcement of rules by department.

It is contained under "Administration." And what agency administers the program? The MDCH.

I believe (h) is written to indicate to the MDCH that the dept has certain duties to discharge under the law and that one of those duties is the duty of confidentiality. I would find it rather odd that there would be a provision under "administration" that would criminalize certain acts of persons that have nothing to do with "admin."

[+RevThad]

 

 

FURTHERMORE, what is being disregarded ENTIRELY here is that it does NOT read, "A person, including an employee or official of the department or another state agency or local unit of government, who discloses confidential information is guilty of a misdemeanor..."

PB and others are interpreting it as if that is how it reads. It reads, "A person, including an employee 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..." So ask yourself where in the act is disclosure of confidential info a violation of the act? The only places are in h2 and h3. To suggest otherwise is to suggest that the words "in violation of this act" are meaningless and merely "extra."

 

Actually, I read it to suggest that there are only a couple of exceptions to the disclosure of that information, and that any other disclosures would be a violation of the act.

 

Those exceptions would be:

• Fraudulent information
  
• To verify validy of a card
  
• The limited report to the legislature
  

 

Your argument about the title of the section in some way limiting who the section applies to, would render subpart (g) as useless.

 

Section 333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

 

Just my humble opinion.

[DenturesLost]

Your argument about the title of the section in some way limiting who the section applies to, would render subpart (g) as useless.

 

Section 333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency.

 

Just my humble opinion.

 

If read alone, yes. But my point is that if read in conjuction with section h it helps to better understand the section.

 

With that said, I think this part of the act needs significant clean-up and that you have a valid point.

[peanutbutter]

Well .. I figure that section 6 (h) talks about employees and officials of local units of government.

 

So it covers more than just folks working at the MDCH.

 

Seems like plain language.

[peanutbutter]

I would also point out the section of the law this falls under:

333.26426 Administration and enforcement of rules by department.

It is contained under "Administration." And what agency administers the program? The MDCH.

I believe (h) is written to indicate to the MDCH that the dept has certain duties to discharge under the law and that one of those duties is the duty of confidentiality. I would find it rather odd that there would be a provision under "administration" that would criminalize certain acts of persons that have nothing to do with "admin."

 

Well .. in 6 (h) (4) it says the department or any other department or units of local government.

 

I suppose that you could try to claim that means that the MDCH will arrest local employees .. I guess that would be administrating the rules .. Somehow I don't think anyone would try to go there.

 

Early on I tried to point out that there is a definition in this section also. That would be outside the definition section. The definition would be 6 (h)(1). X IS (are) Y. Like a math statement. (call it BOB)

 

Is it possible that a topic could be void because it is in the wrong section of the law?

[+RevThad]

 

 

Is it possible that a topic could be void because it is in the wrong section of the law?

In my opinion, no.

 

Ballot initiatives by their very nature will not be perfectly structured, and must always be looked at as a whole.

 

As we look at things in that light we should be mindful of language that is included in other sections like 6(d)... is the final clause in 6(d) binding over the rest of the act?

 

(d) The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.

 

Or does that clause simply refer to receiving a registry identification card for no more than 5 qualifying patients? Context is important...

[DenturesLost]

Well .. in 6 (h) (4) it says the department or any other department or units of local government.

 

I suppose that you could try to claim that means that the MDCH will arrest local employees .. I guess that would be administrating the rules .. Somehow I don't think anyone would try to go there.

 

Early on I tried to point out that there is a definition in this section also. That would be outside the definition section. The definition would be 6 (h)(1). X IS (are) Y. Like a math statement. (call it BOB)

 

Is it possible that a topic could be void because it is in the wrong section of the law?

Calling that a definition defeats your premise because if the definition of confidential is Y then the definition of confidential is NOT what webster's says it is. Like I said before, you cannot equivocate and get the benefit of TWO distinctly different definitins. If it is Y then it's NOT secret info it is simply Y! It's like you said, you may as well call it Bob. So now we have this information, Bob, so what? Nothing implies anyone has a duty to keep Bob secret other than h2 and h3.

[peanutbutter]

(d) The department shall issue a registry identification card to the primary caregiver, if any, who is named in a qualifying patient's approved application; provided that each qualifying patient can have no more than 1 primary caregiver, and a primary caregiver may assist no more than 5 qualifying patients with their medical use of marihuana.

 

Or does that clause simply refer to receiving a registry identification card for no more than 5 qualifying patients? Context is important...

 

I think it is possible that section 6 may be applied to more than just the MDCH.

[+RevThad]

I think it is possible that section 6 may be applied to more than just the MDCH.

There is no doubt in my mind that it does.

 

Just as section 4 applies to more than registered patient, caregivers, and doctors...

[peanutbutter]

Calling that a definition defeats your premise because if the definition of confidential is Y then the definition of confidential is NOT what webster's says it is. Like I said before, you cannot equivocate and get the benefit of TWO distinctly different definitins. If it is Y then it's NOT secret info it is simply Y! It's like you said, you may as well call it Bob. So now we have this information, Bob, so what? Nothing implies anyone has a duty to keep Bob secret other than h2 and h3.

 

Let Bob = "confidential information."

 

Bob is not allowed to be disclosed except when it is distinctly allowed by the law.

 

Bob consists of applications, information on the applications, supporting documents for the application, information on those supporting documents,. In addition names on the list at the MDCH are Bob. The identities of caregivers and doctors are Bob.

 

That's what I'm seeing so far.

 

According to this act, your dentist records are not defined as Bob. Via the standards of this law, the records at your doctors are not defined as Bob.

[peanutbutter]

DenturesLost's original insult being carried on in this thread is now retarding my understanding. Can we return to just using regular words instead of trying to make each other look stupid?

 

In my opinion, there is no rational way to read the law that would allow any public official or regular private person to willfully disclose private patient/caregiver/doctor information to others, but I am willing to listen to arguments to the contrary. Certainly there are legal contexts that would render the wording of that section less protective, if not altogether null-and-void, the question is what are the boundaries and have they already been violated?

 

Sorry .. wasn't trying to insult Bob

 

If 6(h)(1) is a legally defining statement, then you wouldn't use the common understanding of the phrase. Like "medical use" means something different within this act than would be in normal usage.

[Kingpinn]

This Question is for Peanut Butter who would have been the person that would have been responsable for giving tv6 tv news in Lansing my status on the tv 6 news and pin pointing where i live . Who will go to jail over that one ??

[peanutbutter]

This Question is for Peanut Butter who would have been the person that would have been responsable for giving tv6 tv news in Lansing my status on the tv 6 news and pin pointing where i live . Who will go to jail over that one ??

 

Exactly .. the number of criminal acts that have been committed against us is sizable.

 

And what's worse is that no one has been arrested at all. Not one single person in nearly two years.

 

Everyone that has been arrested around medical marijuana has been one of "us." Not one single of one of "them" has been arrested since this law went into effect. That indicates a massive bias within our law enforcement system and court system.

 

All IMHO of course. What I'm doing here is to make sure my stubbornness isn't getting in the way of my reading abilities.

 

I think it's possible to come to clear understanding of the majority of the law. There might be "gray areas" but the vast majority of the law can be clearly understood when you try to understand it.

[Highlander]

Sorry mispost

[+Silverblue]

Uh oh, Pb is at it again!

 

A few days ago I asked a lawyer some questions about the law and even he thought it seemed vague. That's bad, so keep chipping away at it till you're sure you understand it, then someone will come along and say something different. WHY can't people write laws that are clear enough that we don't have to be debating it for so long? Well it sure gives us plenty to talk about! 'LOL'

 

Sb

[peanutbutter]

Uh oh, Pb is at it again!

 

A few days ago I asked a lawyer some questions about the law and even he thought it seemed vague. That's bad, so keep chipping away at it till you're sure you understand it, then someone will come along and say something different. WHY can't people write laws that are clear enough that we don't have to be debating it for so long? Well it sure gives us plenty to talk about! 'LOL'

 

Sb

 

Well .. I think some of the confusion is based, not on what is there, but what folks wish was or was not there.

 

Some preconceived ideas about what should be there yet doesn't seen there.

[peanutbutter]

There is also something of a perception battle that is taking place.

 

One attempt, that is still on going, is to establish, in everyone's perception, that it is still illegal for marijuana to be obtained anywhere.

 

If that were true, then any marijuana at all would still be illegal.

 

To have that view requires the ignoring of the word "acquire" as a part of "medical use."

 

All that would be required to put every patient in jail, would be to have everyone ignore the patients ability to acquire. Urge them to never attempt to read the law for themselves.

 

Even the MDCH has made some sort of statement that it is illegal for a patient to obtain their medicine.

 

So far that idea has not been successfully sold to the public and the courts, I might add.

 

Only a very small percentage of people understand that it might be possible that police could go to jail under this new law.

 

The more people that come to underst6and this exists within the law the more likely that it will start to be enforced.

[DenturesLost]

Let Bob = "confidential information."

 

Bob is not allowed to be disclosed except when it is distinctly allowed by the law.

 

 

 

Says who? Where in the act does it say you cannot disclose Bob?