HIPPA Protections Not a Credible Excuse for Failure to Disclose Marijuana Use

After an applicant has filled out the Questionnaire for National Security Positions (SF-86), they are required to certify it as true and the sign a General Release of Information form, an Authorization for Release of Medical Information Pursuant to the Health Insurance Portability and Accountability Act (HIPAA) form, and a Fair Credit Reporting Disclosure and Authorization form. Each form has a specific purpose and protections but are not meant to allow security clearance applicants to withhold information regarding the questions asked on the SF-86. A recent Defense Office of Hearing and Appeals (DOHA) case caught my eye due to the applicant invoking HIPAA protections. Here are the highlights.

The applicant answered “No” on the SF-86 to having used illegal drugs within the last seven years. During her security interview with the background investigator, she was questioned about past drug use due to an arrest for possession of marijuana in 1994. She eventually admitted she has smoked marijuana from 1978 to May 2023 and bought it from street dealers until it became legal, and then got it from dispensaries. When asked why she didn’t disclose it on the form, she claimed it fell under the private health care act which is why she thought it wasn’t required to be disclosed. The DOD declined to grant her clearance eligibility based on this and her long-term illegal drug use.

In her appeal to DOHA she stated because she was using it for anxiety it fell under HIPAA protections which is why she did not disclose her drug use.  The judge did not find her answer very credible and noted that the HIPPA release form is authorization for the release of mental health records in making an eligibility determination for a security clearance and does not relieve the applicant’s requirement to disclose illegal drug use – clearance eligibility denied.