Caregiver says marijuana requirement violates privacy laws

Phil Drake,

HELENA — A man is claiming the state’s medical marijuana law violates federal health care privacy regulations in that it forces providers who rent or lease their home to get permission from their landlord.

However, state officials and a lobbyist for the cannabis industry note that marijuana is not recognized by the federal government as a medicine and therefore does not fall under privacy protections.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the privacy of personal health information.

Kenneth “Skip” Kildore, a caregiver from Helena, says people are being forced to reveal some of their medical information to a third party, which violates HIPPA.

He adds that the landlord is under no obligation to maintain their privacy and “could go out and announce it to the world.”

“Further, because of the wildly politicized climate around this issue, a lot of people, landlords included, are strongly prejudiced against medical marijuana,” he said, adding he fears that such renters could have their relationships with landlords damaged.

He said he has been told by the Department of Health and Human Services that it is not a HIPAA violation.

And DPHHS notes that marijuana is not a prescription drug and cultivating marijuana is not protected health information as defined by HIPAA.

Kildore disagrees.

“Clearly it is. And clearly there are a variety of damages associated with it,” he said.

Kildore received an Aug. 31 letter from the state telling him a recent Montana Supreme Court decision upheld a limit of three registered cardholders per Montana Marijuana Program provider.

“Your provider has indicated they will no longer serve as your MMP provider,” the letter from Roy Kemp, interim administrator, states. “This is important to you because having an eligible provider is a condition of your MMP card.”

The state included a temporary card naming Kildore as his own provider, saying “You must make other arrangements if you want to retain a valid MMP card,” saying he must find another provider or become his own provider.

If he was to become his own provider, he must return his cardholder form, along with his landlord permission form by Sept. 30.

State officials said Monday that Montana law requires written permission of the property owner if the person is registering to grow marijuana or manufacture marijuana-infused products on property they do not own.

“HIPAA does not restrict individuals from disclosing any information they may wish to disclose,” DPHHS spokesman Jon Ebelt wrote in an email. “If an individual wished to disclose his or her protected health information, he or she is free to do so. Further, marijuana is not a prescription drug and cultivating marijuana is not protected health information as that term is defined in HIPAA.”

Hiedi Handford, a private lobbyist who worked with Montana Medical Growers Association, said cannabis is not legally recognized as medicine under federal laws.

Kildore, 59, disagrees that the marijuana he uses to help him control his post-traumatic stress disorder is not medicinal.

“Something that helps is a medicine,” he said. “It’s made a world of difference, not a perfect medicine. When I use it I cannot go out and drive. But it really has helped. I’ve become a lot mellower.”

Handford said people could change the laws in Montana and vote yes on Proposition 182, which is on the Nov. 8 ballot and allows a doctor to certify medical marijuana for a patient diagnosed with chronic pain and includes PTSD. It would also repeal the three patient limit for each licensed provider.