New York Announces Expansion of Medical Marijuana Program



In what many marijuana advocates and patients are viewing as a positive step forward, Governor Cuomo’s administration has announced its plans to adopt several key changes to New York’s medical marijuana program aimed at increasing the number of eligible participants under the program and the ability for such participants to obtain better treatment options and easier access to medical marijuana.

The announcement follows a census report recently published by the New York State Health Department which contained twelve recommendations for improving the program.  Although certain recommendations remain under review, it is expected that all twelve of the Health Department’s recommendations will eventually be adopted by the state, several of which could come into effect as early as October, 2016.  Some of these key changes include: (i) authorizing registered nurse practitioners (rather than just registered physicians) to certify New York residents for medical marijuana use; (ii) allowing for the home delivery of medical marijuana to certified patients; (iii) streamlining manufacturing requirements and broadening the capability for registered organizations to advertise their participation in the program; (iv) increasing the number of brands of medical marijuana products available to patients, as well as potentially adding to the types of forms (i.e., smokeable or other edible varieties) available for administering medical marijuana; (v) expanding the list of qualifying medical conditions eligible under the program and conducting a review as to whether chronic intractable pain should be included in the expanded list of eligible conditions; (vi) registering five additional organizations that are licensed to grow and supply medical marijuana; and (vii) making it easier for practitioners to register with the program and creating a public database of registered practitioners to make it easier for patients to find them.  Although these changes do not address issues related to the high cost of medical marijuana, which for certain patients can run up to $1,000 a month and is not covered by insurance, one additional recommended change was to expand the existing financial hardship-based waiver for the $50 patient and caregiver application fee for registration.  The report also recommended that the state continue to engage in outreach aimed at easing some of the federal restrictions impeding scientific research on marijuana and prohibiting financial transactions and traditional banking relationships in the context of the medical marijuana business.

New York’s current medical marijuana program, which was established in July 2014 following the adoption of the Compassionate Care Act, is viewed by many as one of the most restrictive programs in the country.  Currently only ten severe, and in many cases life threatening, illnesses qualify for treatment under the program, including cancer, AIDS, amyotrophic lateral sclerosis (ALS), and multiple sclerosis, and patients must also have one of the following clinically associated complicating conditions: wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms.  One consistent complaint about the current list of qualifying conditions is that it has resulted in the exclusion of many sick patients who could benefit from the use of medical marijuana because their diagnoses did not allow them to qualify for coverage.  In addition, several medical marijuana manufacturers licensed under the program have argued that such a limited set of qualifying conditions has greatly restricted the volume of patients using medical marijuana, which in turn has made it difficult to operate profitably and support the community.  Under the proposed changes, certain mental illnesses, such as posttraumatic stress syndrome, and other debilitating illness like Alzheimer’s disease will potentially be added.  In addition, should the Cuomo administration choose to add chronic intractable pain to the list (which is currently the associated condition with the greatest percentage of New York certifications), the number of eligible program participants would greatly expand.

The program also currently only allows five organizations to manufacture and produce up to five brands of medical marijuana products, each with limits on the amount of tetrahydrocannabinol (THC) and cannabidiol (CBD), the two main active ingredients found in marijuana, thereby restricting the potency and range of medical marijuana products that manufacturers may offer to treat the qualifying conditions.  Furthermore, medical marijuana products are only available in liquid or oil form (the program does not currently allow marijuana to be smoked) that must be administered through tinctures, sprays, vaporization or oral consumption, which certain patients have argued are not as effective at providing relief (including on an immediate basis) as other forms of consumption, such as smoking.  Additionally, each of the five manufacturers are only allowed to dispense medical marijuana to qualifying patients from four dispensary locations (although only 17 total are currently open), many of which only carry some of the types of marijuana products allowed to be sold under the program.  The results of the Health Department census report shows that these dispensaries are predominantly located in or around New York City and the surrounding boroughs.  Due to the concentration of these dispensaries in major cities and the geographical size of New York State, many patients reside hours away from the nearest dispensary, which has significantly impacted the ability of such patients to obtain medical marijuana, particularly those patients who are unable to travel very far as a result of their medical condition.  For some patients, the fact that the closest dispensary may not even carry the medical marijuana product that they have been prescribed has only further exacerbated the issue because these patients are then forced to travel even further to find a different dispensary that does carry the product.

By doubling the number of manufacturers permitted to grow and distribute medical marijuana, potentially increasing the number of brands and forms of medical marijuana available to certified participants, and allowing for home delivery, the Health Department’s proposed changes will substantially increase the accessibility of medical marijuana to eligible participants throughout the state and will likely improve the availability of different treatment options for those patients who may benefit from a high potency product or one that is administered in a way that is different from the currently available options.  In addition, an increase in the number of permitted manufacturers and types of medical marijuana available will help meet the increased demand that is expected to occur as a result of the additions to the list of eligible conditions.

Lastly, under the current program rules, only physicians (not nurse practitioners) who (i) are qualified to treat one of the ten current eligible conditions, (ii) are licensed and in good standing as a physician and practicing medicine, (iii) have completed a four-hour continuing medical education course approved by the Health Department, and (iv) have registered with the Health Department, are eligible to issue certifications for their patients to receive medical marijuana.  One major drawback to this physician registration process is that the program does not currently provide potential patients with access to a publicly available list of the registered physicians who can help certify them for program eligibility.  Instead, potential patients must currently obtain this information through a physician, or nurse practitioner qualified to treat one of the eligible conditions, who has access to the Health Department’s Health Commerce System, which contains the list of all registered physicians who have consented to be listed in the state’s Medical Marijuana Data Management System.  Because marijuana remains a Schedule I drug under federal law, many physicians have been reluctant to register and/or prescribe or offer medical marijuana as a potential treatment option.  In fact, it is estimated that there are only about 700 physicians currently licensed to prescribe medical marijuana in New York (compared to roughly 7,000 certified patients).  Critics of the current program have argued that the existing rules have made it overly difficult to even access the program.  By creating a public database of registered physicians and allowing nurse practitioners to become eligible to prescribe medical marijuana, many believe the program will be more accessible to potential patients throughout the state, particularly those living in rural parts of New York with very few registered physicians.

While only time will tell how effective these proposed changes will be, many marijuana advocates and patients view the announcement as a shift in the right direction, and one that well help to ease some of the burdens currently faced by existing patients who could benefit from medical marijuana use.

Filed in: Legal Blog

September 23, 2016