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The Fine Print

LeFebvre Law's blog exploring legal issues related to the small business community, entrepreneurs, contractors, the construction industry, along with occasional pieces about futurism, the commercial space industry and space law, and other emergent technologies and novel legal fields. "Always read The Fine Print!"

The Fine Print

LeFebvre Law's blog exploring legal issues related to the small business community, entrepreneurs, contractors, the construction industry, along with occasional pieces about futurism, the commercial space industry and space law, and other emergent technologies and novel legal fields. "Always read The Fine Print!"

The New York Compassionate Care Act – Medical Marijuana

Medical-Marijuana-leaf

The New York Compassionate Care Act – Medical Marijuana

The New York Compassionate Care Act – Medical Marijuana and What You Should Know

The New York Compassionate Care Act was signed into law by New York State Governor Andrew Cuomo on July 7, 2014, making New York the 23rd state in the U.S. to legalize medical marijuana.  The new law permits certified patients to use marijuana for treatment of a “serious condition” so long as the treatment is prescribed by a certified physician. The law took effect January 2016.

How Do Patients Qualify to Be Part of the Program?

Certified patients must be resident of NY or is being treated in NY. They must be treated in NY for the condition for which they are seeking medical marijuana. The patient must have a “serious condition,” as defined by the law. They must be certified by a NY physician who has registered with Department Of Health (DOH) to recommend medical marijuana. The doctor must have completed a costly 2-4 hour training course and filed paperwork with the DOH.

Certified patients must be under that doctor’s care for the condition for which you are seeking medical marijuana Additionally, your doctor must believe and be willing to certify that you will receive some therapeutic or palliative benefit from medical marijuana. And the patient must obtain a registry identification card from the DOH and carry their patient registry card at all times that they are in possession of medical marijuana.

What Medical Conditions Make a Patient Eligible for Medical Marijuana in New York?

A serious condition is defined as: “having one of the following severe debilitating or  life-threatening  conditions: cancer,  positive status for human immunodeficiency virus or acquired immune deficiency syndrome, amyotrophic lateral sclerosis, Parkinson’s disease, multiple sclerosis, damage to the nervous tissue of the spinal  cord  with objective neurological indication or intractable spasticity, epilepsy, inflammatory bowel disease,  neuropathies, Huntington’s disease, or as added by the commissioner; and (ii) any of the following conditions where it is clinically associated with,  or  a  complication  of,  a condition under this paragraph or its treatment: cachexia or wasting syndrome; severe or chronic pain;  severe nausea; seizures; severe or persistent muscle spasms; or such conditions as are added by the commissioner.”

Conditions that must be considered by the Commissioner for inclusion:  Alzheimer’s, muscular dystrophy, dystonia, post-traumatic stress disorder and rheumatoid arthritis. Further, any other condition may be added by the Commissioner at any time. The list of serious conditions will likely expand over time to reflect the full range of therapeutic options for cannabis.

What’s the Process for a Patient to Become Certified to Receive Medical Marijuana Under the Compassionate Care Act?

In order for patients to become certified, patients must apply to DOH to become a certified patient. This application will include personal information, such as name; date of birth; a doctor’s certification, which includes a statement that the patient has a serious condition and is under the doctor’s care for that condition; dates for which the certification is valid; photo of the patient; the name, address, federal registration number, phone number and original signature of the certifying practitioner; additionally, the certification expires after one year from the date the doctor signs it, or the doctor can specify an earlier termination date, however, if the patient is terminally ill the registration doesn’t expire until patient’s death. The certifying doctor must certify that the patient is indeed terminally ill.

If the patient is under 21, a parent or legal guardian can make the application as a designated caregiver. Patients must pay a $50 fee which can be reduced or waived if the patient is experiencing financial hardship. Should the application be approved, the Department of Health will issue the patient a registry card that will include any limitations regarding forms or dosage made by the certifying doctor.

What Kind and How Much Medical Marijuana Can a Certified Patient Obtain?

It is noteworthy that smoking as a method of consumption of the only form not left to the Commissioner and specifically excluded from ‘certified medical use’ in the statute. The forms of marijuana that are allowed include extracts, tinctures, oils, and edibles. All allowable forms of medical marijuana, including methods of consumption and strain, variety, and strength, are determined by the Commissioner and must be approved by the Commissioner before they can be sold.

Additionally, patients cannot legally possess more than a 30 day supply as determined by the practitioner and consistent with any DOH regulations. Patients can get a refill of their medical marijuana during the last week (7 days) of their 30 day supply. Medical marijuana must be kept in its original packaging. And very importantly, medical cannabis cannot be consumed in a public place.

Are Patients, Caregivers, and People in the Industry Protected from Discrimination?

The Compassionate Care Act does provide certain protections for medical marijuana patients and those involved in this new industry. The act provides that patients, caregivers, practitioners, or employees of registered organizations  “shall not be denied any right or privilege, including but not limited to, they shall not be subject to arrest, prosecution, or penalty in any manner, or denied  any  right  or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board  or bureau, solely for the certified medical use or manufacture of marihuana, or for any other action or conduct in accordance with this title.”

Side note: I’ve always found it amusing how NY anglicizes the spelling of marijuana in its legislation.

Patients, practitioners and employees of registered organizations are also protected under the human rights law (housing, employment, public accommodations). Also, patients, practitioners and employees of registered organizations are protected in custody and family law proceedings. Registry information is not subject to public disclosure laws (i.e., it must be kept confidential).

What are the Rules for People Who Want to Be Part of the Industry of Producing or Dispensing Medical Marijuana?

As a firm specializing in small businesses and start-ups, I have come across a number of enterprising young individuals interested in getting in on the ground floor of this burgeoning new industry. However, NY is not Colorado, and accessing this industry is not easy. More on that in a later post.

So hopefully this has been of some help to those interested or in need of new therapies. We at LeFebvre Law are interested in advising our clients, who are small businesses, about this changing legal landscape and how it may impact their businesses. For additional thoughts on how businesses should deal with this new development, check out this post about some tips for employers dealing with the roll out of the Compassionate Care Act, and contact LeFebvre Law if you would like to discuss your options for updating your policies with regards to medical marijuana (or marihuana, if you prefer).

 

Tim LeFebvre, Esq.