State Senator: Medical Marijuana in NY Has Come Far, but Program Has Lots of Room for Improvement

By:
Chris Gaetano
Published Date:
Dec 14, 2016
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New York State Sen. Diane J. Savino, speaking at the NYSSCPA's Marijuana Symposium in Midtown yesterday, said that while the state's medical marijuana program faced numerous legislative, regulatory and implementation hurdles since its inception, its primary challenge—the federal government's refusal to modify the drug's Schedule 1 status as a dangerous substance that has no accepted medical treatment use—remains stubbornly in place. 

But the future is not entirely certain here. 

Savino said the industry has great concern about the nominee for U.S. Attorney General, U.S. Sen. Jeff Sessions, who has come out heavily against marijuana legalization, for both medical and recreational use. If he becomes the nation's top law enforcer, he could easily tear apart the Cole Memo, a set of Department of Justice-provided guidelines issued in 2009, and updated in 2011 and again in 2013, for federal prosecutors in how they enforce marijuana laws under the Controlled Substances Act. 

"If he comes in, he could very easily tear up the [guidance], say these rules and guidelines no longer exist, and could throw an entire industry in disarray," she said. 

The industry, including the states that regulate it, uses the Cole Memo to shape their own programs and business processes. New York was no exception. The Empire State, while quite progressive in other respects, has some of the most draconian drug laws in the country, Savino said. These laws, she said, represented prevailing attitudes among New Yorkers that needed to be overcome in order to implement a medical marijuana program in the state, not least of which was Gov. Andrew Cuomo. Savino said that she needed to work with the governor to overcome what she said were heavy reservations about the proposal. 

This meant that when the bill was finally signed into law in 2014, it created a program that was smaller and more narrow than she had originally envisioned. So, for instance, while the original legislation allowed medical marijuana to be prescribed for post-traumatic stress disorder and chronic pain, these conditions were cut in the final version due to concerns about abuse. 

Because of this narrow application, Savino said that the program as it currently works in New York faces significant obstacles toward its own sustainability. She pointed out, for instance, that there are only five licenses for up to 20 dispensaries in a state with a population of almost 20 million people. This can make access problematic, she said, particularly for patients upstate. 

"With a state of 19.5 million, it's pretty big and with only 20 dispensaries it's hard to get... If you live way upstate and the nearest dispensary with the brand of marijuana you need for your condition, it could be a 400-mile trip for you. And we're not dealing with hale and hearty people, we're dealing with sick patients," Savino said. 

She noted that other drugs, such as painkillers like Oxycontin, can be delivered through the mail, but federal regulations mean that marijuana cannot be transported through the mail or through any private courier service. 
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Savino pointed to other issues medical marijuana businesses face despite state-level legalization. For example, there is no insurance coverage for medical marijuana because insurance companies are federally regulated and therefore cannot offer coverage.  

Banking, meanwhile, is another major challenge for these businesses because of financial institutions' hesitance to let them open accounts. This means that medical marijuana has had to become a primarily cash business, with all the attendant challenges that come with that. Along the same lines, tax compliance is also an issue for these businesses. Federal law still recognizes marijuana on the same level of illicit drugs as LSD and heroin, and so businesses cannot pay tax with marijuana proceeds and cannot write off business expenses as other companies would. 

Doctors, meanwhile, cannot even prescribe medical marijuana because they must be licensed by the Drug Enforcement Administration, a federal agency, in order to write those prescriptions. Instead, Savino said the doctor must make a "recommendation" for medical marijuana, and to even do that they need to take a course and be certified by the state, which she said not a lot of doctors want to do. As of December 2016, New York has 771 physicians registered for the program that treats 11,291 patients.

Some of these issues are economic, some of them political, but Savino said these problems are reflections of the program's constraints and its difficulty thriving within them. 

"Due to the narrowness of the program and the complications of this industry, it has been a struggle," she said. 

Savino believes that if New York's medical marijuana program is to succeed, there need to be changes to enable more patients to have access to it, which in turn would help the dispensaries stay in business. Savino pointed out that, like any business, medical marijuana companies need customers to survive. 

Part of these changes is expanding who can recommend medical marijuana. Currently only physicians may do so, but Savino said she made a recommendation to the state Department of Health to allow nurse practitioners and physician assistants to do it, too. She noted that for many, particularly those who live upstate, nurse practitioners are their main contact for health care, as the nearest physician may be very far away. She said she hopes that if nurse practitioners and physician assistants can recommend medical marijuana, a sense of competition will spur physicians themselves to register for the program, too. 

Along similar lines, she also recommended to the state Department of Health that doctors who are already taking part in the program should have their names publicized so that even if someone's doctor can't or won't recommend medical marijuana themselves, they could more easily make a referral to someone who does. She said that the department has agreed to reach out to these physicians and ask whether they want to have their participation made public. 

Savino is also sponsoring a bill that would double the number of dispensaries in New York, expand the list of qualifying conditions to include things such as PTSD, chronic pain and Alzheimer's, and allow for direct marketing and education campaigns about medical marijuana. 

Conversely, she said that for the industry to truly thrive and overcome many of the challenges it currently faces, both political and economic, marijuana must be de-scheduled and the industry allowed to grow. More than anything, though, she said marijuana must be seen as a legitimate business. 

"This is how we will move forward into this century. We will stop looking at marijuana as dangerous, we will defy what the federal government says, we will prove them wrong [and show it can lead to] legitimate healthcare policy and legitimate business and allow it to grow and thrive," she said. 

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