Hawaii Governor Signs Medical Marijuana Expansion Bill, After Calling One Of Its Provisions ‘A Grave Violation Of Privacy,’

On the heels of signaling a possible veto of a bill meant to expand access to medical marijuana in Hawaii, Gov. Josh Green (D) instead signed the measure into law over the weekend, regardless of a provision he recently described as “a grave violation of privacy.”

HB 302 will make two main reforms around patient access. First, it allows a patient’s primary treating medical provider to recommend marijuana for any malady they see fit, regardless of whether it’s a specified qualifying condition in Hawaii. It also allows patients to receive medical cannabis recommendations through telehealth visits rather than having to establish an in-person relationship with a provider.

Before lawmakers sent the bill to Green, a conference committee revised the plan, inserting a provision to allow the state Department of Health to access medical marijuana patient records held by doctors for any reason whatsoever.

The revised bill authorizes the Department of Health to “inspect a qualifying patient’s medical records held by the physician, advanced practice registered nurse, or hospice provider who issued a written certification for the qualifying patient.” Providers who don’t comply with a department request for a patient’s records could see their ability to issue medical cannabis revoked.

Advocates initially supported HB 302 as a means to expand access to patients with conditions beyond those specified under state law. But many withdrew support following the conference committee’s changes.

An additional provision establishes a new Class C felony for unlicensed operation of a dispensary, adding another major charge on top of the state’s existing laws against illegal distribution of marijuana.

In early June, Green himself put the cannabis measure on a list of bills he intended to veto—an indication, though not a commitment, that he was leaning towards rejecting it.

“Although this bill’s authorization of medical cannabis certifications via telehealth expands access to medical cannabis,” his office wrote at the time, “provisions authorizing the inspection of patients’ medical records without warrant constitute a grave violation of privacy.”

Green acknowledged patients might be especially concerned about removing privacy protections given that marijuana remains federally illegal, noting that those concerns could actually limit enrollment in the state-legal system.

“Given that the federal government classifies cannabis as a Schedule I substance,” his office said at the time, “patients’ reasonable fears of repercussions based upon information gained from inspection of their personal medical records may deter patients from participating in the medical cannabis program.”

The bill remained on the governor’s intent-to-veto list even after the office revised it a week ago.

In signing HB 302 into law on Sunday, Green did not indicate what led to his change of heart.

Nikos Leverenz, of the Drug Policy Forum of Hawai’i and the Hawai’i Health and Harm Reduction Center, told Marijuana Moment that he felt the state has “moved backward” protecting individual autonomy around cannabis in the past year, and “HB 302 is an exemplar of that regression.”

“Providing government attorneys with the authority to inspect doctor-patient records and funding more law enforcement positions will serve to further deteriorate an already anemic medical cannabis system in Hawaii,” he wrote in an email.

Leverenz called on Green to “take the lead and advance bills in the next legislative session that actually serve to expand access to medical cannabis.”

“Measures toward this end include statutory employment protections for registered medical cannabis patients, authorizing access to medical cannabis products for patients in hospice and long-term care settings (Ryan’s Law), and allowing certifying providers broad professional discretion to recommend its use,” he added.

Some lawmakers warned at the time of the conference committee changes to HB 302 that its new medical records provision would be a sticking points for would-be patients.

“The medical cannabis community has expressed its opposition to this breach of confidentiality,” Rep. Kim Coco Iwamoto (D) said last month, “especially since it is authorized without any suspicion of wrongdoing and without a warrant. This will further deter already low patient and provider participation.”

Iwamoto called the proposal “unprecedented given the degree of respect our state has previously demonstrated for patient–doctor privileges, and how often the state defers to the expertise of physicians and healthcare providers.”

Other measures recently sent to the governor’s desk include SB 1429, which would allow medical marijuana caregivers to grow marijuana on behalf of up to five patients rather than the current one. Green signed that bill late last month.

Lawmakers also recently sent a bill to the governor that would help speed the expungement process for people hoping to clear their records of past marijuana-related offenses—a proposal Green signed into law in April.

That measure, HB 132, from Rep. David Tarnas (D), is intended to expedite expungements happening through a pilot program signed into law last year by Gov. Josh Green (D). Specifically, it will remove a distinction between marijuana and other Schedule V drugs for the purposes of the expungement program.

The bill’s proponents said the current wording of the law forces state officials to comb through thousands of criminal records manually in order to identify which are eligible for expungement under the pilot program.

Hawaii’s Senate back in February narrowly defeated a separate proposal that would have increased fivefold the amount of cannabis that a person could possess without risk of criminal charges. The body voted 12–11 against the decriminalization measure, SB 319, from Sen. Joy San Buenaventura (D).

Had the measure become law, it would have increased the amount of cannabis decriminalized in Hawaii from the current 3 grams up to 15 grams. Possession of any amount of marijuana up to that 15-gram limit would have been classified as a civil violation, punishable by a fine of $130.

A Senate bill that would have legalized marijuana for adults, meanwhile, ultimately stalled for the session. That measure, SB 1613, failed to make it out of committee by a legislative deadline.

While advocates felt there was sufficient support for the legalization proposal in the Senate, it’s widely believed that House lawmakers would have ultimately scuttled the measure, as they did last month with a legalization companion bill, HB 1246.

Last session, a Senate-passed legalization bill also fizzled out in the House.

This year’s House vote to stall the bill came just days after approval from a pair of committees at a joint hearing. Ahead of that hearing, the panels received nearly 300 pages of testimony, including from state agencies, advocacy organizations and members of the public.

This past fall, regulators solicited proposals to assess the state’s current medical marijuana program—and also sought to estimate demand for recreational sales if the state eventually moves forward with adult-use legalization. Some read the move as a sign the regulatory agency saw a need to prepare to the potential reform.

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