A lawsuit filed this week in U.S. District Court in Bangor seeks to postpone or limit implementation of new rules governing the use of medical marijuana, claiming they violate the Constitution and patient privacy laws.
The lawsuit, filed Tuesday, names Commissioner Ricker Hamilton in its complaint against the Maine Department of Health and Human Services. Plaintiffs include state-licensed growers Justin Olsen and Nancy Shaw, who own the New World Organics medical marijuana storefront in Belfast. In addition, two anonymous plaintiffs are identified as medical marijuana patients.
The complaint asks that certain provisions set to take effect Feb. 1 be declared unlawful, including the procedural process by which the rules were drafted and adopted. In addition, the lawsuit claims some provisions violate constitutional protections and the 1996 Health Insurance Portability and Accountability Act, or HIPAA, by failing to protect patient privacy.
“The most important issue here is the confidentiality of medical records of patients who use medical marijuana,” the plaintiffs’ attorney, John Markham of Waldoboro and Boston, said in a phone interview Wednesday.
The new rules allow DHHS agents to enter a marijuana dispensary or growing operation without notice or cause and have unrestricted access to documents and records, he said.
Medical marijuana users who legally grow their own supply at home also are at risk for inspections by state regulators under the new rules, he said, requiring only a one-day notice and a report of some kind of concern.
“One day’s notice to inspect a private home [without a specific complaint] is not probable cause,” Markham said.
The lawsuit claims the new rules jeopardize unwarranted search and seizure protections afforded under the constitution and, by allowing “compelled interviews” during on-site inspections, violate self-incrimination protections.
The suit also contends that the rules go too far in granting DHHS discretion in implementing the Medical Marijuana Act approved by Maine voters in 2009.
DHHS has sought to adjust the medical marijuana rules in the years since the law passed, aiming to beef up oversight. Small growers and licensed “caregivers” have resisted, arguing that their patients would suffer if larger-scale dispensaries gained a bigger foothold.
Approximately 45,000 Mainers hold medical marijuana cards provided by their doctors, identifying them as users of marijuana for one or more medical conditions specified under the law. Patients present their cards in order to purchase marijuana from one of eight commercial dispensaries in Maine or from licensed “caregivers” who may grow a certain amount of marijuana for each patient they serve.
Caregiver Olsen of New World Organics said he and his partner Shaw grow marijuana for 10 card-holding patients who suffer from cancer pain, PTSD and other chronic conditions. Often, he said, patients turn to marijuana only reluctantly, after other approaches have failed.
“Certain patients have public jobs and standing in the community,” he said. “There’s still so much stigma attached to marijuana, they don’t want people to know they use it.”
In no other situation, Olsen said, do regulators have access to patient identity and individual medical records.
“Now, DHHS can know who uses marijuana, how they use it, how often they use it, how much they spend and other information, ” he said.
Patients fearing that intrusion could resort to purchasing their marijuana supply from unlicensed and unregulated providers, he said, and caregivers could go underground with their operations.
The Office of the Maine Attorney General, which will defend the state against the complaint, did not immediately return a request for comment. No hearing date has been set.
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