Update: Yesterday, Colorado's board of health rejected an emergency petition from the Cannabis Therapy Institute, on view below in an item first published yesterday morning. The reason? The board didn't believe the concerns outlined in the petition constituted an emergency. However, the topic has been placed on agenda for the next board meeting, in February. Photos and more details below.
There's more than a little irony in the dismissal of the emergency claim. In November 2009, the board held an emergency hearing of its own to change its definition of MMJ caregiver. After a contentious hearing, a Denver district court judge voided this action, ruling that opponents hadn't been given enough time to respond due to the "emergency" designation.
Below, find the Cannabis Therapy Institute's take on the meeting, as offered in a press release. The document outlines the events leading up to the dismissal decision and notes that the board adopted new procedures for considering petitions to add new conditions to the list of ailments approved for treatment by medical marijuana.
Cannabis Therapy Institute release:
Board of Health Denies CTI Request for Emergency Rules
Sets Informational Meeting on Patient Privacy for Feb. 16, 2011
Denver -- The Colorado Board of Health denied the Cannabis Therapy Institute's Petition for Emergency Rules to Protect Patient Privacy on Wed. (1/19/11) on the grounds that the issue did not constitute an emergency as defined in the state Administrative Procedure Act. However, the Board of Health expressed great concern for the patient privacy issues brought up by CTI and agreed to hold an informational meeting on the topic at the next Board of Health meeting on Feb. 16, 2011.
CTI's proposed emergency rules prohibit the CDPHE from sharing the CDPHE Confidential Registry with any outside agencies. The rules also contain procedures to ensure confidentiality and generate "incident reports" if the Registry is ever breached. CTI's petition came as a result of plans by the CDPHE to allow the Colorado Department of Revenue to "replace" the current CDPHE Confidential Registry with a non-confidential database and surveillance system run by the DoR and accessible to law enforcement and other state agencies on demand.
The Board of Health took up CTI's emergency rules as the first agenda item at the meeting on Wed. Glenn Schlabs, President of the Board of Health, stated that he didn't think the rules needed to be passed as an emergency. He also argued that he wasn't sure if the Board of Health had the authority to pass the rules. He said that he realized that in HB 10-1284, which was enacted last year by the state legislature, some "information-sharing (among agencies) was contemplated." But he didn't think that it was an emergency situation.
CTI argued that the situation was an emergency because the Department of Revenue was promulgating rules at a public hearing on Jan. 27-28, 2011 and after that they would have given themselves the authority to start collecting patient information.
Ron Hyman from the CDPHE Center for Health and Environmental Information and Statistics (CHEIS) Vital Records Division, who has been the Director of the Medical Marijuana Registry since 2001, gave a brief description of current Registry security system. He said the Registry is accessible over a secure network on a computer housed in the state's main IT computer room and accessed only by CDPHE employees who have had background checks and signed confidentiality agreements. When asked by the Board if there had been any security breaches of the Registry already, Director Hyman replied that there had been a "few instances where mistakes have been made, but that there had been no intentional leak of information." He gave no further information on these past security breaches.
Director Hyman stated that he was in the process of working with law enforcement through the Colorado Department of Public Safety to set up a system for law enforcement to have greater access to the Registry. He said they were "exploring an electronic mechanism" for law enforcement to scan the bar code on the Registry ID card and get immediate feedback directly from the CDPHE Confidential Registry.
Outside the hearing, Medical Marijuana Registry employee Debra Tuenge stated that they were in the process of integrating the CDPHE Confidential Registry with information from the Department of Revenue on Medical Marijuana Center applicants.
Tuenge said they were "cleaning up" the Registry database and adding Medical Marijuana Center applicant information to each patient's Registry information. This is also of great concern to patients. There is no reason the CDPHE should be storing a list of MMC's associated with various patients, since MMC's aren't even mentioned in the Constitution. The Constitution only gives the CDPHE the authority to issue and track patient Registry ID cards, not any other information.
CTI pointed out at the hearing that these new innovations in the administration of the Registry constituted a substantial change from the current system and should be subject to procedures for making new regulations, including proper public notice and comment opportunities.
In the end, the Board of Health voted not to adopt the CTI proposed emergency rules. They also refused to set the rules over for a formal rulemaking hearing. They agreed to hold an informational meeting for patients on Feb. 16, 2011 and to at that time consider the CTI Petition for Emergency Rules to be set over for a formal rulemaking hearing.
In other medical marijuana business at their meeting on Wed., the Board of Health enacted their new petition process for adding debilitating medical conditions to the list of approved conditions, and without any comment passed a request from CDPHE attorney Ann Hause, the Director of the Office of Legal and Regulatory Affairs, to set over new rules on restrictions on physicians for a formal rulemaking hearing.
Original item, 9:22 a.m. January 19: In recent days, we've kept you abreast of recommendations by the health department's medical marijuana advisory committee. At 10 p.m. today, it's the board of health's turn to gather, and while the Cannabis Therapy Institute is eager to address MMJ items on the agenda, the organization will also submit an emergency rule petition addressing patient privacy and records security. Read it below.
According to CTI's Laura Kriho, the health board plans to address "the petition process for adding new conditions to the list of debilitating medical conditions" approved for medical marijuana treatment, as well as "a request for a rule-making hearing regarding the physician restrictions they've been discussing in the advisory committee." For more on this last issue, read our posts about Medical Marijuana Assistance Program of the Rockies and HB 1043, a new medical marijuana bill.
Regarding the emergency rules petition, which CTI reps hope to raise early in the meeting, Kriho says, "We're concerned that the Department of Revenue is getting ready to replace the confidential medical marijuana registry with a non-confidential database and surveillance system they're setting up. So we're asking them to verify the current security of the registry and whether or not it's ever been handed over to any outside agency. And then we're offering some guidelines to securing the registry as far as who's able to access it, when they're able to access it, and keep track of who's accessing it and why.
"We're proposing the registry be kept on a single computer not connected to any network, in a secure location. And we would like to have a report filed any time the registry is accessed or breached in any way -- an instant report made part of the public record as to what was the incident and why it was accessed, in order to keep a paper trail of how confidential it is. We want to require a registry security status report to the board of health on the current security status of the registry, and we'd like to see that filed quarterly."
In addition, Kriho proposes that the the Colorado Department of Public Health and Environment employees with access to the information "meet the same requirements that medical marijuana center applicants are required to meet -- specifically that they must be a resident of Colorado for the past two years, not convicted of a felony for the past five years, have a current surety bond in the amount of $5,000 and a current set of fingerprints on file with the Colorado Bureau of Investigations. We see the security of the registry as really the only function the CDPHE needs to uphold, and keeping track of who's accessing it is just as important to us as it is for them to have medical marijuana center applicants comply with their standards."
Maybe even more so. Given that marijuana remains illegal under federal law whether it's being used medically or not, Kriho believes "the only reason there's a medical marijuana program in Colorado is because the registry is confidential. If the medical marijuana program had been set up with a non-confidential registry, no one would have signed up. So it's of the utmost importance to preserve the confidential nature of the registry, in order to preserve the program at all. People have lost their jobs, lost their children, lost their health insurance because it was found out they were medical marijuana users. We just can't have that."
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Below, read the entire Cannabis Therapy Institute petition, plus a CTI press release about this morning's board of health meeting.
CTI Submits Emergency Rules Petition to Protect Patient Privacy
(Denver) -- The Cannabis Therapy Institute has submitted a Petition for Emergency Rules to Protect Patient Privacy to the Colorado Board of Health asking them to take immediate steps to ensure the security of the state's Confidential Medical Marijuana Registry.
The Board of Health will be having a public hearing on Wed., Jan. 19, 2011. CTI is asking citizens concerned about patient privacy to write letters of support to the Board of Health and to attend the hearing. See below.
The CTI proposed emergency rules create procedures and safeguards for securing the confidentiality of the Registry as required by the Colorado Constitution and ensuring that no medical marijuana patient information is shared with anyone outside the Colorado Department of Public Health and Environment or is compromised in any way.
CTI's petition for emergency rules comes as a result of plans by the CDPHE to allow the Colorado Department of Revenue to "replace" the current CDPHE Confidential Registry with a non-confidential database and surveillance system run by the DoR and accessible to law enforcement and other state agencies on demand. Click here to watch a video describing the new database: http://www.youtube.com/watch?v=wuYn9C_BbjM
CTI's emergency rules are necessary to determine whether or not the Department of Revenue's Medical Marijuana Law Enforcement Division or any other outside entity has already gained access to the CDPHE Confidential Registry. In addition, these emergency rules allow the State of Colorado to comply with the Fifth Amendment of the U.S. Constitution's protection against self-incrimination. Marijuana possession and cultivation are still illegal under federal law. The CDPHE is therefore required to maintain a strictly confidential Registry in order to protect the Fifth Amendment right of patients not to incriminate themselves in federal crimes.
CTI's proposed emergency rules prohibit the CDPHE from sharing the CDPHE Confidential Registry with any outside agencies. The proposed rules also require the CDPHE to keep track of who accessed the Registry and why. The proposed rules require that the Registry be kept on a single computer that is not connected to any internal or external network. The rules contain other physical and procedural methods to ensure confidentiality.
Only CDPHE "key employees" will be able to access the Registry. The proposed CTI rules for who can be appointed as a "key employee" are based on the requirements for Medical Marijuana Center Applicants. CTI's proposed rule states, "In order to be appointed a key employee, the CDPHE worker must have been a resident of Colorado for the past two years, must not have not have been convicted of a felony in the past 5 years, must have a current Public Official Surety Bond in the amount of $5,000 or more, and must maintain a current set of fingerprints on file with the Colorado Bureau of Investigation."
CTI's proposed emergency rules also require the filing of "Incident Reports" any time the Registry is accessed or breached in any way and a quarterly "Registry Security Status Report" to report on the overall security of the Registry and any past outside accesses. This will allow the public to know if the information in the Registry has already been compromised in any way.
The Original Action Petition to the Supreme Court filed by the Patient and Caregiver Rights Litigation Project was attached to the Board of Health petition as supporting documentation and case law on patient privacy issues. Click here to view PCRLP petition: http://www.CannabisLawsuits.com/
The Board of Health can decide to adopt these emergency rules at their hearing on Jan. 19, 2011 or they can deny the emergency nature of the rules and set the issue for a formal rulemaking hearing. The public is invited to attend the Jan. 19 hearing and give supporting comments.
WHAT YOU CAN DO:
1) Send Letter of Support to Board of Health Ask them to support CTI's emergency rule request and immediately implement security regulations that will guarantee the confidentiality of the state Medical Marijuana Registry.
Colorado Board of Health Emails: email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, RiddleJX@co.laplata.co.us, firstname.lastname@example.org, email@example.com
2) Attend Public Hearing Board of Health Hearing Time: 10:00 a.m. Location: Colorado Department of Public Health and Environment Sabin-Cleere Conference Room Bldg. A, 1st Floor 4300 Cherry Creek Drive, South Denver, CO 80246
Other Medical Marijuana Items on the Agenda Include: • Public Rulemaking Hearing on the Establishing Petition Process for Adding Debilitating Medical Conditions (continued from Oct. 20 BOH meeting) • Request for Rulemaking Hearing on restrictions on physicians who can recommend medical marijuana.
Click here for complete details and agenda: http://www.cdphe.state.co.us/op/bh/index.html
3) Donate to CTI or become a CTI Sponsor To help us continue in the important work of protecting patient rights: http://www.cannabistherapyinstitute.com/donate.html
More from our Marijuana archive: "Medical marijuana: HB 1043 co-sponsor Pat Steadman not sure he agrees with entire bill."