- Published on Monday, 30 March 2015 10:08
When New York State’s lawmakers were mulling legalizing the medical use of marijuana last summer, some proponents feared that the proposed law was so restrictive that it would prevent many patients from receiving the drug.
Now, with the state’s Health Department close to issuing final regulations about the new program, the law’s supporters say their fears may soon be realized.
The law itself is quite restrictive: Only 10 conditions qualify for medical use of marijuana; the drug may not be smoked; and New York will initially allow only 20 dispensaries across the state, run by five organizations.
The regulations go even further. Sales would be restricted to five so-called brands of medical marijuana, which concerns some supporters who say patients and doctors need flexibility to find out which of the hundreds of strains of marijuana works best for a particular condition. (The regulations even stipulate that brand names cannot be “coined or fanciful, and may not include any ‘street,’ slang or other name.”)
Assemblyman Richard N. Gottfried (pictured above), a Manhattan Democrat who was one of the law’s sponsors, voiced deep frustration this month with “a long list of senseless burdensome restrictions on patients and organizations.”
“There are people from very, very young children to very elderly New Yorkers who are going to continue to suffer unnecessarily,” Mr. Gottfried said.
The regulations also impose constraints in unexpected ways. A plumber may not be able to unclog a sink in a dispensary without prior written approval. Drinking a Coke or even milk on the premises could be a violation.
All of which is surprising, advocates say, because of New York’s somewhat late entry into the medical marijuana market: Nearly half of states nationwide already allow medical use of the drug, and California, the first to do so, has allowed it for almost two decades.
“The administration continues to operate as though medical marijuana programs have never been operated before,” said Gabriel Sayegh, the managing director for policy and campaigns at the Drug Policy Alliance, which lobbies for more liberal drug laws. “If we were having this discussion in 1998, one would understand the extreme caution. But it’s not the late 1990s, it’s 2015.”
Such caution threatens patient access, advocates say. No one knows how many people will qualify to use the drug in New York; estimates run from thousands to hundreds of thousands.
Monica Mahaffey, the director of public affairs at the Health Department, defended the law and the regulations, asserting that they ensure “appropriate access through comprehensive regulations and safeguards.”
“The state developed the regulations through this very critical lens to ensure that the entire program would not be subject to enforcement action or legal challenges,” she added.
At some point this year, the state will select the five registered organizations that will operate the dispensaries. Under the 2014 law, the medical marijuana program is supposed to be up and running by 2016.
But so few dispensaries, some say, may limit access for the infirm if they or their caregivers have to travel hours to get the drug, particularly in upstate New York, where big cities are more spread out.
“You’re shoving it all through a narrow tube,” said State Senator Diane J. Savino, the Staten Island Democrat who sponsored the law in the Legislature’s upper chamber.
Advocates had hoped this stipulation would be remedied by allowing organizations to deliver the drug. But the regulations make that difficult, requiring written approval from the Health Department.
Margaret Hart, a retired minister in Central Square, N.Y., about 20 miles north of Syracuse, said that multiple sclerosis prevented her from driving and that she had hoped delivery would be an option. “A lot of the law has come down from a place of fear,” she said, “rather than compassion.”
Ms. Hart, who lives on a fixed income, also worries about cost. Under the draft regulations, which were issued in December and are expected to be finalized this spring, pricing of medical marijuana will be determined by Dr. Howard A. Zucker, the state’s health commissioner, rather than the market itself.
But the drug will not be covered by insurance or Medicaid, so many low-income patients could be shut out if it is priced too high. A high price could also send buyers back into the cheaper black market, while too low a price could lead to worker exploitation at dispensaries, which are to be unionized, per the law.
“It’s like the three bears’ porridge,” said Ed Draves, a lobbyist with Bolton-St. Johns, a firm that represents members of the Retail, Wholesale and Department Store Union. “It can’t be too hot, it can’t be too cold, it has to be just right.”
At first, only doctors will be allowed to recommend the drug, another issue for those who say that nurse practitioners — often the sole providers in rural communities — should also be allowed. They are also “frequently involved in palliative and hospice care,” said Stephen Ferrara, the executive director of the Nurse Practitioner Association New York State. “We would want those patients to have access.”
And some doctors are wary of being the lone recommender of marijuana in an area, because once word gets out, some people who are not legitimate patients seek them out, looking for no-questions-asked access.
The draft regulations, which run more than 100 pages, are often painfully precise. One section forbids patients to drink or eat on the premises of a dispensary, unless “necessary for medical reasons.” Another says that other than patients and their caregivers, no person — not even a plumber or a swaddled infant, for instance — would be allowed into a dispensary without the written consent of the Health Department and an employee escort at all times.
The Health Department has since clarified that written consent may not be uniformly required, provided that the guest’s name and purpose for the visit is logged and an escort is provided. “The department recognizes that in some cases, prior authorization is not feasible,” Ms. Mahaffey said.
Ms. Savino, a more moderate Democrat than Mr. Gottfried, is more supportive of the regulations thus far, saying that she had been pleasantly surprised by some — including a stipulation that a pharmacist be on the premises — and that such measures would help New Yorkers get comfortable with medical marijuana.
“We want to make sure we don’t do anything to jeopardize the program,” Ms. Savino said. “Is it inconvenient? Yes. But what’s a bigger inconvenience is if we don’t have these tight controls and the federal government comes in and shuts down the whole program and disrupts the flow of product to patients.
Some regulations could easily be remedied, Mr. Gottfried said, but he has been stymied in trying to get the Health Department’s attention. “I have asked the health commissioner if he could talk to me,” he said. “And that was not happening.”
Mr. Sayegh, of the Drug Policy Alliance, credited the department and the governor for taking up the issue of medical marijuana, saying “there are people in the administration who care deeply about the issue.”
But he said he feared that the proposed regulations would not serve those for whom marijuana is medicine.
“We’re not holding our breath,” he said, “that they are going to be dramatically better.”
Current Legal Status of Cannabis in the United States