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Although the New York Department of Health (DOH) has been working to make the state’s medical marijuana program more accessible and affordable, the state’s cannabis advocates and businesses say it still has significant room for improvement.
The 2014 Compassionate Care Act legalized medical marijuana in the Empire State and established the Medical Marijuana Program, which allows doctors to certify patients suffering from specific conditions to receive cannabis products for medical use. Physicians must complete a four-hour course approved by the DOH and register with the DOH to certify patients. Once certified, a patient must apply with the DOH to receive a registry identification card and may designate up to two caregivers to obtain medical marijuana products on their behalf. Caregivers must also register with the DOH and receive a separate identification card. Patients and caregivers can then visit one of New York’s registered dispensing facilities to purchase medical marijuana products.
The state has 10 registered organizations, which can be vertically integrated to manufacture and dispense medical marijuana. Each one can operate up to four dispensing facilities. The organizations are permitted to manufacture products in the form of capsules, liquids and oils that can be administered sublingually or through vaporization. Smoking and edibles are prohibited.
“New York State’s Medical Marijuana Program has made great strides since its launch nearly two years ago, including the certification of 35,318 patients and the registration of 1,312 practitioners,” said Jill Montag, a spokesperson for the New York DOH. “The Department of Health is committed to growing the program responsibly. Recent enhancements—such as authorizing five additional registered organizations [in addition to the original five allowed per the legislation] to manufacture and dispense medical marijuana, adding chronic pain as a qualifying condition, permitting home delivery, and empowering nurse practitioners and physician assistants to certify patients—are helping to improve access for patients and increase choice.”
Montag said adding chronic pain as a qualifying condition has led to 136-percent growth of the program since March. The DOH also has proposed new regulations, Montag said, including expanding the variety of products available to patients, some of which may be less expensive than existing product options.
The DOH also has expanded existing regulations to allow certain facilities, such as residential health, developmental disability and mental health facilities, as well as schools, to be designated as caregivers by their patients. This will offer patients more options and prevent them from experiencing adverse effects from discontinuing treatment, Montag said. The regulations went into temporary effect Oct. 5.
“These severely ill and often disabled patients have had difficulties accessing medical marijuana because of concerns from facilities over the handling of the medication,” Montag said. “These regulations were necessary to immediately allow these facilities the option of becoming designated caregivers for certified patients.”
Advocates Weigh In
“I’m sure the majority of the [registered organizations] are admitting to the reality that the business model is currently struggling, and it’s struggling because the program is extremely restrictive. …” - Landon Dais, MPP’s NY chapter
David Holland, principle of the Law Offices of David Clifford Holland and executive and legal director of Empire State NORML—which was organized in 2008 as an advocacy and education nonprofit organization in the state—said that while the addition of chronic pain and the passage of a recent bill to add PTSD to the program are steps in the right direction, the program needs to go much further to help patients.
“It’s still one of the most restrictive states in the country when it comes to the medical regime, and we think that’s unfortunate,” he said. “While we embrace all the movements going forward, there are a number of symptoms we would like to see addressed that simply are not.”
NORML’s message has been difficult to spread in the state, Holland said, and it has struggled to organize advocates. In addition, he said the registry of doctors that are certified to recommend medical marijuana is not easily accessible to patients, and physicians’ autonomy about when to recommend cannabis is impeded by a statute mandating that a patient must have for a six-month period a condition that does not benefit from any other course of treatment.
“That’s a lot of concern the doctor has that interferes with their ability to adequately assess what the problems are … with the patient in a way that they could have a productive conversation about this,” he said. “Some people may … have six months of visits with absolutely no relief before they can even be considered.”
Holland also pointed out that the five registered organizations with four dispensaries each only allows for 20 dispensaries, roughly one per every one million people in the state. Even with new regulations that allow 10 licensees and 40 dispensaries, he said it may not be enough.
“It’s a long way to [travel] for a lot of people,” he said. “They’re not well-served, particularly in the central and western regions of the state. [And] it’s very expensive.”
Holland said vaporizing or ingesting cannabis per the state’s regulations may not work for all patients, and it increases product cost, as the oil must be extracted from the plant and processed. The number of strains a registered organization can produce also is limited, he said, which also limits patients’ options.
Landon Dais, the political director of New York’s chapter of Marijuana Policy Project (MPP), echoed Holland’s concerns.
“I’m sure the majority of the [registered organizations] are admitting to the reality that the business model is currently struggling, and it’s struggling because the program is extremely restrictive, which is limiting their customer base and enlarging their overhead costs,” he said. “Anytime you have that as a business, I don’t care what the business is, that’s problematic.”
Dais said many people in New York want to use medical marijuana, but cannot register because of the expense and the limited number of doctors.
“Something we’re working on is trying to inform doctors and [get] more doctors involved in the process …,” he said. “A lot of them still aren’t comfortable with it because they’re not sure about regulations, … so the more doctors we can get involved in the program, … that will help.”
Dais also hopes that additional conditions will be added to the program, noting that the DOH is willing to work to expand the program.
“We have to realize government is oftentimes slow toward change, but as long as they’re willing to listen and hear what changes need to be executed upon, and they are willing to do it, that is a government you can always work with,” he said.
Dais said MPP is also continuing to push for adult-use legalization in the state. “Why not decriminalize and then regulate marijuana similar to alcohol in New York state, create thousands of jobs, create an amazing amount of tax revenue and also lift the burden off our congested criminal justice system?” he said.
The Registered Organizations’ Perspective
PharmaCann LLC holds the most medical marijuana licenses in Illinois and was the top-scoring applicant in New York’s original licensing process, according to General Counsel Jeremy Unruh. The company has 130,000 square feet of cultivation and manufacturing facilities in New York, as well as its four permitted dispensaries.
“In our organization, New York plays a very prominent role, given the structure of the program there as a true medical program,” Unruh said.
PharmaCann's New York facility. Photo courtesy of PharmaCann LLC.
Unruh said challenge is a cornerstone of the industry, and many of the struggles PharmaCann faced when expanding into New York were related to local municipalities accepting the company into their city limits. Now, he said, it is facing challenges associated with patient access.
He said the barriers to access the program are very high, resulting in only a fraction of eligible citizens signing up for the program. He agreed with Holland and Dais, saying the program is expensive, it is difficult to find a physician, physicians may be very far away and it may take a long time to see a doctor.
“It’s really hard to ask a 78-year-old man with Parkinson’s to wait in a six-month queue to see a physician and pay upwards of $600 or $800 over the course of the year for that certification, and so it’s really important that the Department of Health find ways to make physicians more accessible to patients if they want this program to succeed,” Unruh said.
Telehealth platforms and the automatic processing of medical marijuana cards would help alleviate some of these challenges, Unruh said.
The inside of PharmaCann's New York cultivation facility. Photo courtesy of PharmaCann LLC.
In addition, Unruh said the regulations that allow a registered organization’s cultivation centers to supply only its own dispensaries are restrictive.
“I can’t sell the product of another licensee in my dispensaries, though they may have tremendous, fantastic products that we’d like to sell,” he said. “So that’s one of the things that needs to change.”
He said new the regulations allowing registered organizations to deliver have helped to address some of these issues, and the DOH is considering rules that would allow registered organizations to wholesale, which would also help the companies better serve patients .
“New York has an opportunity right now to be the preeminent medical program in the country, but it has a couple of problems to fix,” Unruh said.
Hillary Peckham, chief operating officer of women-owned and family-owned Etain, agrees that the program needs to expand.
Peckham, her sister Keeley and their mother Amy. Photo courtesy of Etain.
She said the emergency regulations allowing certain facilities to act as caregivers are a great expansion to the program, but more can be done.
“I think finding ways to allow more medical communities to participate in the program is essential for gaining broader acceptance of this program in the state,” she said.
Areas where the program has struggled, Peckham said, include physician registration, limitations on qualifying conditions and which medical marijuana products are permitted.
“There currently is a regulatory packet that is under review, and so we’re expecting to hear back about that very quickly, which would expand the types of products that we can sell [and] who has access to a dispensary, and I think it will be great for the program,” she said.
Etain plans to expand into California in the first quarter of 2018, Peckham said, but the company is happy overall with its start in New York.
“We wanted to start here,” she said. “We believe in the New York model because something that it gives patients is a very high-quality, pharmaceutical-grade product . … We really believed in bringing credibility to the industry and being a leader in terms of what we were producing for our patients, and this was an opportunity to do that.”
