New York's Compassionate Care Act: An Overview of A.6357-E and S.7923
New York’s Compassionate Care Act, sponsored by Assembly Health Committee Chair Richard Gottfried and Sen. Diane Savino, was approved by the New York Assembly and Senate on June 20 and was signed by Gov. Andrew Cuomo on July 5, 2014. The new law will protect certain seriously ill patients who use marijuana pursuant to their doctors’ advice from civil and criminal penalties. A number of modifications were made at the insistence of Gov. Andrew Cuomo. As a result, patients will not be allowed to smoke medical cannabis, the law will sunset after seven years, and there will be no more than five manufacturers — with a total of up to 20 locations — in the entire state.
Patient certifications: To qualify, a patient must have a written certification from his or her physician. Physicians must first register with the health department and take a two-to-four hour course. A certification must specify that the patient is in the physician’s continuing care for the condition, that the patient is likely to receive therapeutic or palliative benefits from marijuana, and that he or she has a qualifying condition. The doctor must consider what form of medical marijuana the patient should use and state any recommendations or limitations on the certification. The health commissioner may also allow nurse practitioners to certify patients.
Qualifying conditions: To qualify, a patient must have cancer, HIV/AIDS, ALS, Parkinson's disease, multiple sclerosis, spinal cord damage causing spasticity, epilepsy, inflammatory bowel disease, neuropathies, or Huntington’s disease. The health commissioner may also add or delete conditions and must decide whether to add Alzheimer’s, muscular dystrophy, dystonia, PTSD, and rheumatoid arthritis within 18 months of the law’s effective date.
Registry identification cards: The health department will issue registry identification cards to patients and caregivers who submit valid applications, written certifications, and fees of up to $50. Patients will have no legal protection until they have an ID card. Registry identification cards will generally expire after a year, unless the patient has a terminal illness or the physician specified an earlier date. If police are presented with an ID card, the department will verify the card’s validity.
Caregivers: Patients may designate up to two caregivers, who may pick up their medical marijuana for them. Caregivers generally must be at least 21 and they may not serve more than five patients.
Minor patients: An appropriate person who is 21 or older must fill out an application for a minor patient. A minor’s caregiver must be his or her parent, guardian, or — if neither is available — other appropriate person who is approved by the department.
Possession limits: Patients may possess a 30-day supply of medical marijuana, an amount that will be determined either by the health commissioner during rulemaking or by the physician. They may refill their 30-day supply seven days before it runs out.
Protections: Patients, caregivers, physicians, and staffers of state-legal medical marijuana organizations would not be subject to arrest or prosecution, or subject to any civil penalty, for the actions allowed under the act. In addition, being a medical marijuana patient would be considered a disability for purposes of the state’s anti-discrimination laws. The law also includes language to protect patients from discrimination in family law or domestic relations cases.
Limitations: Medical marijuana may not be smoked. It also may not be consumed in a public place. Any form of medical marijuana not expressly approved by the health commissioner is prohibited.
Out-of-state patients: The law does not include protections for out-of-state patients.
Registered organizations: The health department will select no more than five registered organizations to manufacture medical marijuana. They may be for-profit or non-profit and may have no more than four dispensing locations each. The health department will consider factors including whether applicants are of good moral character and if they can prevent diversion and maintain security. Each registered organization must be unionized and its staff is not permitted to strike.
Registered organization restrictions and regulations: Registered organizations need to consult the prescription monitoring program database to ensure they are not dispensing more than a 30-day supply to a patient. They would also be required to provide a safety insert, which would include information on potential dangers, with marijuana. Registered organizations could submit marijuana to labs for testing and would have to provide information about the products’ potency and safety. Marijuana would have to be grown in secure, enclosed, indoor facilities. In most cases, registered organizations’ staff members may not have had felony drug convictions within the past 10 years. The department will issue additional regulations, including those related to advertising, security, tracking, and surveillance. A registration may be suspended or terminated for violations of the law.
Pricing: The health commissioner would determine the price of marijuana.
Insurance: Health insurance will not be required to cover medical marijuana.
Misconduct by doctors: The law creates a new felony for doctors who issue a certification with reasonable grounds to know a person has no medical need for it or the person will not be using it to treat a qualifying serious medical condition.
Misconduct by others: The act also creates a new misdemeanor for any person who delivers medical marijuana to someone with reasonable grounds to believe the person is not registered. Another misdemeanor is created for a patient or caregiver who keeps more marijuana than they are allowed to have.
Excise tax: Medical marijuana would be subject to a 7% excise taxes; 22.5% of the tax revenue would go to the county where the marijuana was sold and 22.5% to the county where the marijuana was manufactured. Five percent would be directed to drug abuse prevention, counseling, and treatment, and five percent would be directed to criminal justice services.
Effective date: The Compassionate Care Act went into effect immediately, on July 5, 2014. Registry identification cards or registered organizations’ registrations will become effective on the latter of: a) 18 months after enactment; and b) when the superintendent of state police certifies the title can be implemented in accordance with public health and safety interests.
Suspension of the program: The governor may immediately terminate all registered organizations’ licenses based on a recommendation from the head of the state police that there is a risk to public health or safety.
Sunset: The act will be repealed after seven years if it has not been renewed before then.