Jump to content

Dea V Mdch - Mmma's "confidentiality Provision Is A Nullity" Says Federal Judge


Recommended Posts

I merged " Eric L. VanDussen " post w/ " Michael Komorn "

 

Post becuase they both about the same topic ....

hahaha I just saw mentally disabled as your title.just had a little sweet tooth after super and that just hit me funny:) anyways can you merge my post as well??please and thankyou:)

Link to comment
Share on other sites

  • Replies 65
  • Created
  • Last Reply

Even under HIPPA, an administrative Subpoena is enough to crack your medical records as long as the officer supplies proper identification. That is why Sb377 is illegal. It circumvents HIPPA by allowing automatic dissemination of medical information. The ruling means that the police still have to follow federal law when accessing registry data(HIPPA). Those privacy rights have not been circumvented. Now is this judge screwed up on expectation of privacy? He''s as screwed up as a soup sandwich. The fact that the MDCH, under it's own administrative guidelines, guaranteed privacy, there was indeed an expectation of privacy by individual patients and caregivers, as that was what they paid for. The failure stems from Shuette not defending the contract the state entered into with the public. He should be sued. There is a lot here, but the essence is they still look at and treat us like crap. I am too disgusted to write anymore on the subject right now. It's getting close to time for us all to leave the state run program. That's the real elephant in the room. Thanks, Bb

and do what?? go where? this is why we dont NEED bigger govt thats for sure,I hate how the repubs are crying their donkey's off saying how intrusive the dems are for making bigger govt,blah making whoopee blah and then do the gosh darn thing, flower you Bill bad

Link to comment
Share on other sites

This is a dispensary owner's records they want.

If he faked his paperwork, how else are they going to prove his paperwork was bogus? They didn't ask for a whole bunch of patients paperwork like some have tried to make you believe. If his paperwork is in order then he doesn't have anything to worry about. It's not like the feds are trying to find an annonymous patient who is enjoying their right to privacy. This is a known patient and dispensary interest with their name in the paper a lot, that the feds want to prove their paperwork was doctored. They are doing it correctly by a limited request and showing cause to get the information. You can't use the privacy clause to hide from an obvious breach in the state rules, if that is what this is. Looks like the case is moving through the appropriate checks to make sure everyone's rights are honored.

after all the feds wouldnt do anything other than look for the bad apples after all they are an honorable entity of our govt,nothing to worry about or be suspicious of folks,"The nine most terrifying words in the English language are: 'I'm from the government and I'm here to help.'"

Link to comment
Share on other sites

This judge is a jack donkey female parental procreation. :notfair: He talks about "limited exception" in the MMMA and how it allows a doctor to "prescribe marijuana" for patients. Hizzonner can't even get the basic facts about the law right. The law does not provide "limited exceptions" but a huge making whoopee exception for medical use. Doctors don't "prescribe" they recommend. Gonzolez vs. Raich said THE FEDS can continue to enforce federal law within a State but did not require the States to actively cooperate with them. The case he cites does not support the proposition that the feds can subpoena State records that are private.

 

I am inclined to think that the feds CAN subpoena MM records on specific patients they are investigating- probable cause the person is NOT in full and ambiguous compliance with applicable State law and such. The problem is this judges reasoning is FUBAR. How can you do a legal analysis like this an not even mention the 10th Amendment? Or HIPPA?:rolleyes:

 

This is dangerous precedent far, far worse than merely an attack on the medical marijuana law. This is all about a centralized bureaucracy that controls our every dollar and even our every thought. I really think both Repubics and Demopublicans are the same party. They BOTH want bigger and bigger government. The Demopublicans want big government to steal our money and redistribute it so they can buy votes while the Repubics want big government so they can enforce their narrow morality on a county that is great PRECISELY because of our diversity. Both of them can go to hell as far as I am concerned (and take that judge with you). :growl:

Link to comment
Share on other sites

Makes one rethink the need for renewal, And recommending this program to other sick people.. last thing we all need.. :notfair:

 

look at it this way.. if they want to arrest me and jail me fine.. they can pay the big bucks for those pills i should take......

Link to comment
Share on other sites

Guest Happy Guy

The patient confidentiality issue aside, the case itself is interesting.

I believe they are messing with Mr. Dispensageddon, see this for a reference;

 

http://www.lansingcitypulse.com/lansing/article-4303-dispensageddon.html

 

We can assume the feds already know everything there is to know about this guy after the dispensary was taken down. So what do they 'need' from MDCH? We know what MDCH has, his paperwork. Just those few pages you send in. The only thing they could possible want is the doctor's information. What else could/would they want? And why do they want the doctor's info? Any ideas?

Link to comment
Share on other sites

bottom line then WTF do they want?? My husband already had to sign a contract with his doctor because he is on narc's as well,NOT because his doctor wanted too but the FEDS made the doctor,I want the f'ing feds out of my relationship with my doctor. POWER TO THE PPL.LETS TAKE IT Back from these fat cats

 

The Feds make him? That is horse crap. The purpose of the pain contract is to show due diligence was taken and the patient was formally advised not to obtain narcotics from multiple physicians. The patient is also agreeing to take the medication as advised and not to 'share' it. It is a legal defense tool for the physician to show he took care when he dispensed narcotics and to clarify to the patient what is expected from them. There is NOTHING in any law that says anything about making medical marijuana a disqualifying condition for pain therapy, any more than theraputic massage or OTC advil would disqualify them. Physicians write the terms of the pain contract themselves, and can modify them at will.

 

If I was doing pain management, I would have a pain contract for my patients. If I used a 'canned' contract I would mark out and initial the section concerning marijuana if the patient had a card. If they were using MMJ illegally, I would encourage them to get certified even if I personally didn't write certs (28,000 of 30,000 Michigan physicians do not).

 

This nonsense about the Feds not letting them allow MMJ is just that, NONSENSE.

 

Dr. Bob

Link to comment
Share on other sites

Judge: Michigan must turn over medical marijuana records related to a federal drug investigation

By John Agar - http://www.mlive.com/news/grand-rapids/index.ssf/2011/06/judge_state_must_turn_over_med.html

 

GRAND RAPIDS PRESS - June 4, 2011 - A federal magistrate judge has ordered the state turn over medical marijuana records related to a federal drug investigation.

 

U.S. District Magistrate Judge Hugh Brenneman Jr. said the state law allowing medical use has no impact on federal laws that criminalize the use of marijuana.

 

He said the Michigan Department of Community Health must comply with an administrative subpoena issued by the U.S. Drug Enforcement Administration agents investigating suspects in the Lansing area.

 

The judge ordered that the DEA has to list names of seven named in the subpoena. The judge also denied requests to intervene or file friend-of-court briefs as requested by those supporting Michigan’s medical marijuana law.

 

Michigan Association of Compassion Clubs, Cannabis Patients United and Americans for Safe Access argued that the state would violate privacy rights of medical marijuana patients by complying with the order.

 

Michigan Department of Community Health balked at providing the records, but state Attorney General Bill Schuette, an opponent of medical marijuana, said the state would comply if ordered to do so by a judge.

 

The subpoena seeks copies of patient and caregiver registration cards, or the applications, for seven people.

 

Brenneman said the initiative approved by voters in 2008 “provides an affirmative defense in a few instances to arrest or prosecution, or other adverse action by state authorities enforcing the state prohibition against marijuana.”

 

But, he said that “while the Michigan Legislature declared its intent not to penalize the medical use of marijuana under state law, it had to acknowledge its action did not alter the existing federal prohibition against marijuana: Although federal law currently prohibits any use of marijuana except under very limited circumstances, states are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law.”

 

He added: “The use of marijuana remains a federal felony.”

 

Under the medical marijuana law, the applications and information about caregivers and physicians are confidential. The state is supposed to only verify to law enforcement whether a registration card is valid, with criminal penalties in place for those who disclose confidential information.

 

“It is this last provision that has caused (the state) to hesitate,” Brenneman wrote.

 

He said that “would-be intervenors,” who claimed those on the registry had a right to privacy, simply refuse to confront the elephant in the middle of the room; they try to tip-toe around it, or close their eyes to it. The elephant, of course, is the fact that federal law made use of marijuana a felony years ago, long before Michigan voted to not prosecute people who use it for medical purposes. Michigan also made the use of marijuana a crime (and it still does); even medical marijuana, although the (medical marijuana law) now provides an affirmative defense so that certain medical marijuana users cannot be prosecuted for violating Michigan’s criminal law against marijuana.

 

Prior to the passage of the MMMA, no one would have dreamt that an investigation by the Drug Enforcement Administration, or by the Michigan State Police, into the use or distribution of marijuana would have violated any ‘privacy rights to use marijuana.’”

 

He noted that the text of the law recognizes that federal law prohibits use of marijuana.

“Thus, anyone who is not deluding himself or trying to push an agenda knows that the confidentiality provisions are only binding on the State of Michigan and its agents, not the federal government and its agencies.”

 

Beyond that, he said, police are seeking identity cards of seven people, whose names are redacted in court documents, already known to investigators. The cards are designed to be shown to police.

 

“Only the truly naive or the disingenuous would try to argue that the (medical marijuana law) will not be abused by others seeking a cover for illicitly using or distributing marijuana.”

 

While the Obama administration has said it won’t target those legally using medical marijuana, Brenneman wrote that “this Administration or the next may simply pull the plug and prosecute anyone using or distributing marijuana, which it unquestionably may do under existing federal law.”

 

Email: jagar@grpress.com

Link to comment
Share on other sites

This judge is a jack donkey female parental procreation. :notfair: He talks about "limited exception" in the MMMA and how it allows a doctor to "prescribe marijuana" for patients. Hizzonner can't even get the basic facts about the law right. The law does not provide "limited exceptions" but a huge making whoopee exception for medical use. Doctors don't "prescribe" they recommend. Gonzolez vs. Raich said THE FEDS can continue to enforce federal law within a State but did not require the States to actively cooperate with them. The case he cites does not support the proposition that the feds can subpoena State records that are private.

 

I am inclined to think that the feds CAN subpoena MM records on specific patients they are investigating- probable cause the person is NOT in full and ambiguous compliance with applicable State law and such. The problem is this judges reasoning is FUBAR. How can you do a legal analysis like this an not even mention the 10th Amendment? Or HIPPA?:rolleyes:

 

This is dangerous precedent far, far worse than merely an attack on the medical marijuana law. This is all about a centralized bureaucracy that controls our every dollar and even our every thought. I really think both Repubics and Demopublicans are the same party. They BOTH want bigger and bigger government. The Demopublicans want big government to steal our money and redistribute it so they can buy votes while the Repubics want big government so they can enforce their narrow morality on a county that is great PRECISELY because of our diversity. Both of them can go to hell as far as I am concerned (and take that judge with you). :growl:

 

One of the biggest problems with this board is that folks tend to look at the negative rather than the positive. What is good about this ruling?

 

An issue I have been struggling with (and working with an attorney for a test case) is the issue of MMJ on probation. Currently standard probation terms call for 'not violating any laws' and not taking medication unless there is a 'doctor's prescription'. One attorney brought a 'poster child case' to court and tried to get the judge to modify the terms of probation after the fact to allow MMJ use. They CAN'T DO THAT. Looking at the case, the judge was hung up on the word 'prescription'. My argument is that a 'recommendation' for MMJ carries the same meaning as a prescription and should be treated as such. While I have a good argument in itself, NOW I HAVE A FEDERAL JUDGE THAT IS CALLING IT A PRESCRIPTION TOO. Think of the implication for MMJ patients on probation- A great victory for us, the good guys.

 

One other thought- The MMMA is a STATE law, it is illegal in the eyes of the feds. STAY THE HECK OUT OF FEDERAL COURT. We are lucky we didn't get our tails handed to us. Consider the implication of the Federal court taking the ruling one step further- MMJ is illegal federally so therefore the MMMA is illegal. We stood a very real chance of losing the Act- and so did many other states. Count your blessings. If you lose in state court, lick your wounds and move on, do NOT kick it up to the feds.

 

Dr. Bob

Link to comment
Share on other sites

Michigan must give records in medical marijuana probe - http://www.theoaklandpress.com/articles/2011/06/05/news/cops_and_courts/doc4dea3c5b1ddc8732165920.txt?viewmode=default

 

June 05, 2011 (Associate Press) A judge in Grand Rapids says the state of Michigan must comply with a federal request to turn over information about the medical marijuana records of six people in the Lansing area.

 

The Department of Community Health had refused to comply with a subpoena from federal agents without a court order. That’s because Michigan’s medical marijuana law has a confidentiality provision.

 

U.S. Magistrate Judge Hugh Brenneman Jr. said Friday that the federal government has a right to investigate possible drug crimes. The Drug Enforcement Administration has said it’s not harassing legitimate medical marijuana users.

 

Brenneman says only the “truly naove” would believe that the medical marijuana law would not be used as a cover for the illicit use of pot.

Link to comment
Share on other sites

Guest Happy Guy

One of the biggest problems with this board is that folks tend to look at the negative rather than the positive. What is good about this ruling?

 

An issue I have been struggling with (and working with an attorney for a test case) is the issue of MMJ on probation. Currently standard probation terms call for 'not violating any laws' and not taking medication unless there is a 'doctor's prescription'. One attorney brought a 'poster child case' to court and tried to get the judge to modify the terms of probation after the fact to allow MMJ use. They CAN'T DO THAT. Looking at the case, the judge was hung up on the word 'prescription'. My argument is that a 'recommendation' for MMJ carries the same meaning as a prescription and should be treated as such. While I have a good argument in itself, NOW I HAVE A FEDERAL JUDGE THAT IS CALLING IT A PRESCRIPTION TOO. Think of the implication for MMJ patients on probation- A great victory for us, the good guys.

 

One other thought- The MMMA is a STATE law, it is illegal in the eyes of the feds. STAY THE HECK OUT OF FEDERAL COURT. We are lucky we didn't get our tails handed to us. Consider the implication of the Federal court taking the ruling one step further- MMJ is illegal federally so therefore the MMMA is illegal. We stood a very real chance of losing the Act- and so did many other states. Count your blessings. If you lose in state court, lick your wounds and move on, do NOT kick it up to the feds.

 

Dr. Bob

One thing I would like to add concerning federal court;

We have had at least one patient in federal court that had their medical marijuana card upheld.

A patient was smoking in a casino parking lot. The casino cops called the feds. The feds told the patient that if he produced his card he would be left alone. He produced the card at a later date because he didn't have his card on him when he was caught smoking. He produced the card to the feds and they let him go with a smile. The patient did an interview and he was very happy with how the feds treated him. That's one of the positive things we can look to. It shows that you can get away with some medical usage with the feds. Even smoking in a public place was let fly. They can be fair. You can't say that the feds look at all medical cannabis activities as illegal when you have things like this happening.

Link to comment
Share on other sites

One thing I would like to add concerning federal court;

We have had at least one patient in federal court that had their medical marijuana card upheld.

A patient was smoking in a casino parking lot. The casino cops called the feds. The feds told the patient that if he produced his card he would be left alone. He produced the card at a later date because he didn't have his card on him when he was caught smoking. He produced the card to the feds and they let him go with a smile. The patient did an interview and he was very happy with how the feds treated him. That's one of the positive things we can look to. It shows that you can get away with some medical usage with the feds. Even smoking in a public place was let fly. They can be fair. You can't say that the feds look at all medical cannabis activities as illegal when you have things like this happening.

 

I concur. I am familiar with that case. Never forget, however, that he was extremely lucky and they literally 'cut him a break' (though there were complaints about it on this board). Three things got him in trouble- Smoking in public, smoking in public on a federal reservation, and smoking in public on a federal reservation without his paperwork. God protects fools and children, looks like in this case the Feds covered half of that. I would NOT count on a second chance.

 

Come to think of it, it wasn't a ruling by the court, the case was dropped by the federal prosecutor. We owe him a big thank you in that case. He didn't have to. He could have pushed it and hurt us.

 

Dr. Bob

Link to comment
Share on other sites

Guest Happy Guy

You could draw a conclusion that they are not going after the little guy. In fact, they didn't even press him for his source. It makes you believe they are being very careful with well documented patients that do not show an intent on large scale distribution. You can see that in another case where they did mess with a caregiver that had over 100 plants. They only removed some of the plants and did not press charges. When they made the press interview about it, their only comment was "He had a lot of plants". No hate. No big blanket statements of mass illegal activity. This was another case that started at a casino. The feds were called. The feds didn't start it.

Link to comment
Share on other sites

One of the biggest problems with this board is that folks tend to look at the negative rather than the positive. What is good about this ruling?

 

An issue I have been struggling with (and working with an attorney for a test case) is the issue of MMJ on probation. Currently standard probation terms call for 'not violating any laws' and not taking medication unless there is a 'doctor's prescription'. One attorney brought a 'poster child case' to court and tried to get the judge to modify the terms of probation after the fact to allow MMJ use. They CAN'T DO THAT. Looking at the case, the judge was hung up on the word 'prescription'. My argument is that a 'recommendation' for MMJ carries the same meaning as a prescription and should be treated as such. While I have a good argument in itself, NOW I HAVE A FEDERAL JUDGE THAT IS CALLING IT A PRESCRIPTION TOO. Think of the implication for MMJ patients on probation- A great victory for us, the good guys.

 

One other thought- The MMMA is a STATE law, it is illegal in the eyes of the feds. STAY THE HECK OUT OF FEDERAL COURT. We are lucky we didn't get our tails handed to us. Consider the implication of the Federal court taking the ruling one step further- MMJ is illegal federally so therefore the MMMA is illegal. We stood a very real chance of losing the Act- and so did many other states. Count your blessings. If you lose in state court, lick your wounds and move on, do NOT kick it up to the feds.

 

Dr. Bob

 

I agree with you on the positive points Dr. Bob it is a good thing that a federal judge has ruled on alot of unknowns in the law but I think the real issue here is that all card holding patients and caregivers feel as if we've been violated!!! We signed up with the state and paid are fees and doctors fees and were told we would have privecy with this law that are records were safe and the even had criminal pentalties in place to thwart attempts to gain access to our records. Now a federal Judge steps in and rules totally against all we thought was safe, he went against precedent from a simuliar case in Oregon. So now we have lawmakers trying to strip this law apart, an Attorny General who any chance he gets takes a pot shot at us, feds that say it's illegal and continue to raid and pilage the sick and weak. A free country this is? Blueberry the sooner this is taken private the better!!!!! IMO it is the only way we as patients and caregivers will feel some sense of privacey and security in all of this!!!! What everyone fails to understands is 7 card holders lead to more than 42 patient/caregives in this case, crack the door open for the feds and they will come busting through over and over again. What this means for Michigan and other medical states is that there is no protections anymore for patients and caregivers in this country at all, because there are plenty of rogue AG's like Bill Schuette that will surely let the feds know how he helped them out on this case. His next case will be so easy to get records for patients and caregivers all he has to do is remind his fed buddies that they owe him one, called going through the backdoor!!!! So Dr. Bob in my eyes I can't see much postive in this Judges ruling in fact I think this is a very Sad Day in the Medical Marijuana Community across the whole country!!

 

 

Thats not thunder your hearing, thats the sound of doors busting wide open all across this Land!!!!

 

Link to comment
Share on other sites

You could draw a conclusion that they are not going after the little guy. In fact, they didn't even press him for his source. It makes you believe they are being very careful with well documented patients that do not show an intent on large scale distribution. You can see that in another case where they did mess with a caregiver that had over 100 plants. They only removed some of the plants and did not press charges. When they made the press interview about it, their only comment was "He had a lot of plants". No hate. No big blanket statements of mass illegal activity. This was another case that started at a casino. The feds were called. The feds didn't start it.

 

You are right, the implication is that they are following their promise of not going after MMJ patients following state law. Their recent clarifications regarding 'commercial activity' and large scale grows is showing their focus. For some time I've been recommending some common sense things- example is not limiting caregivers at one address, but limiting total grows to 99 plants at any address. These recommendations are designed for one reason, let's pick our fights wisely.

 

Just because we 'can' do something doesn't mean we 'should'. The example I've frequently used is my first amendment right to flip off a trooper as I pass him while driving the speed limit. I am not breaking a law and simply exercising my freedom of speech granted me by the constitution. I may not like troopers when they give me a speeding ticket. But that doesn't mean I should disrespect them- 15 min after they give me that ticket they may risk their lives pulling a child from a burning car and I am glad they are there to promote order and safety. Furthermore, it will clearly tinkle them off and any cop worth his salt can find something to make my life miserable if they look hard enough and are angry enough. Can I flip him off- yes. Should I flip him off- no, even if it makes me feel good.

 

Let's stay in the law, fight the good fight and build our numbers until the politicians listen to us.

 

Here is a copy of a white paper I wrote recently to advise a city council on a proposed ordinance regulating MMJ. I think there are some good points of discussion contained in it, including types of ordinances, privacy, pricing on meds, record keeping, and dispensaries. See what you think... Remember it is only my opinion, not that of any organization or group. But I would like some input.

 

http://dl.dropbox.com/u/28101571/City%20of%20Cadillac.docx

 

Dr. Bob

Link to comment
Share on other sites

Hate to be the messenger of bad news, but we all knew that the Federal Government can over rule state law if it is in conflict with Federal law if they wanted to. My underlying message has and is that we need to view this as an extension of trust by the voters of Michigan that we will use this law as intended. The Feds are tolerating patient use of MMJ as described by state law but technically don't have to. They are not tolerating dispensaries or large scale commercial grows as much.

 

Again, pick our battles, make the most of each ruling, and build our numbers until first the state government and then the feds accept the new 'norm' that MMJ is a medical substance with good medical benefits and should not be a schedule 1. Until that time our lawyers can argue the 10th amendment issue that the states should regulate it so long as there is no interstate transportation. Having 41 pounds of California MMJ intercepted in Battle Creek is NOT helping that argument.

 

Dr. Bob

Link to comment
Share on other sites

The Feds make him? That is horse crap. The purpose of the pain contract is to show due diligence was taken and the patient was formally advised not to obtain narcotics from multiple physicians. The patient is also agreeing to take the medication as advised and not to 'share' it. It is a legal defense tool for the physician to show he took care when he dispensed narcotics and to clarify to the patient what is expected from them. There is NOTHING in any law that says anything about making medical marijuana a disqualifying condition for pain therapy, any more than theraputic massage or OTC advil would disqualify them. Physicians write the terms of the pain contract themselves, and can modify them at will.

 

If I was doing pain management, I would have a pain contract for my patients. If I used a 'canned' contract I would mark out and initial the section concerning marijuana if the patient had a card. If they were using MMJ illegally, I would encourage them to get certified even if I personally didn't write certs (28,000 of 30,000 Michigan physicians do not).

 

This nonsense about the Feds not letting them allow MMJ is just that, NONSENSE.

 

Dr. Bob

his family doctor is fine with him using the MMJ,. it was because of the DEA and the president wanting tighter control to why he had to sign that contract,the feds shouldnt be in my husbands health care,its between my husband and his doctor,they have had a realationship for yrs.I dont think the DEA should be telling doctors how to adminsiter medicine they didnt go to making whoopee med school,after all Dr. Bob Im pretty sure they wouldnt let you into their business.Treating Doctors as Drug Dealers: The DEA's War on Prescription Painkillers, Cato Policy Analysis No. 545.

http://www.nytimes.com/2011/04/20/health/20painkiller.html

Link to comment
Share on other sites

The judge talked about the expectation of privacy. That a patient had no such expectation as the ID card is expected to be presented to police officers.

 

What the judge failed to consider is that the officer that the ID card is presented to is forbidden to convey the information on the ID card to any one else.

 

The expectation is that IF the ID card is presented, the information will go no further than to the officer the ID card is presented to.

 

Furthermore, The ID card is not probably cause that a crime has taken place. Our law defines that the probable cause that the feds are looking for IS NOT PROBABLY CAUSE.

 

All that the state records have is licensing information. Zero record of any crime being committed.

Link to comment
Share on other sites

Guest Happy Guy

The judge talked about the expectation of privacy. That a patient had no such expectation as the ID card is expected to be presented to police officers.

 

What the judge failed to consider is that the officer that the ID card is presented to is forbidden to convey the information on the ID card to any one else.

 

The expectation is that IF the ID card is presented, the information will go no further than to the officer the ID card is presented to.

 

Furthermore, The ID card is not probably cause that a crime has taken place. Our law defines that the probable cause that the feds are looking for IS NOT PROBABLY CAUSE.

 

All that the state records have is licensing information. Zero record of any crime being committed.

So you are assuming there was no illegal activity at that dispensary? There is zero evidence that a crime has been committed at that dispensary? I think it would be impossible for you to know that. This should not be confused with the feds just finding someone with a card and taking it from there.

Link to comment
Share on other sites

Archived

This topic is now archived and is closed to further replies.


×
×
  • Create New...