Last night the New York State Department of Health (DOH) released the final regulations for New York's medical marijuana program. The announcement followed a period of public comment in which patients, families, experts, and industry professionals submitted more than a thousand letters and emails critiquing the proposed regulations for being too restrictive and unworkable. In response to this incredible level of input from the public and private industry, the Department of Health made absolutely no substantive changes to the regulations. Instead, they made only handful of technical fixes, such as correcting typos.
Twenty-two other states have passed medical marijuana laws, five jurisdictions have passed laws taxing and regulating marijuana for adult use, and the federal government has made clear that they will not interfere with properly administered state marijuana programs. Despite this, the Cuomo Administration, in its response to the public comments, repeatedly uses federal laws as an excuse for inaction.
Last June, the New York State legislature passed a medical marijuana law after years of advocacy by patients and families across the state. In the final days of the 2014 legislative session, the Cuomo Administration demanded a series of amendments to the bill, severely limiting its scope and creating one of the country's narrowest medical marijuana programs. The law that was passed, while narrow, gave the Health Commissioner the authority to make the program more expansive. Unfortunately, the final regulations make clear that the Commissioner will not use his authority to expand the program and that the Cuomo Administration intends to make the program as restrictive as possible - even if that makes the program unworkable and leaves patients to suffer.
For example, although advocates had asked for a clear and transparent process for how conditions, such as post-traumatic stress disorder (PTSD), will be considered for the program, the final regulations make no mention of covering any additional illnesses, only saying that the Commissioner may issue guidance on this in the future.
"As a veteran, I am dismayed that the final regulations fail to include PTSD, which so many of my fellow soldiers suffer from on a daily basis," said Bill Gilson President of the New York City chapter of Veterans for Peace. "PTSD is covered in a least nine other states with medical marijuana laws, and given the strong scientific evidence that cannabis can help those with PTSD, people suffering from it New York should also have access. I find it even more upsetting that there is still no transparency or explanation for how PTSD -- or any other medical condition for that matter -- will be added or excluded from the program in the future."
For months, advocates have also been raising concerns that low income patients may not be able to access medicine because the cost will be prohibitive. DOH is requiring dispensaries to sell more expensive extracts and concentrates (versus whole plant); has prohibited modes of ingestion, thus, requiring the use of costly vaporizers; and has limited delivery options putting the burden of transportation on sick patients. Each of these factors increases the cost and could leave the poorest and most disabled patients to suffer most. In their public comments, advocates outlined several options by which DOH could provide access for low income patients. The final regulations completely ignore these suggestions. DOH says it may allow dispensaries to give away medicine to those in need, leaving the fate of low income patients to depend entirely on the good will industry.
"Having fought hard for the establishment of the medical marijuana program to serve thousands of sick and disabled New Yorkers - including myself - who are in desperate need of safe and legal access, I'm gravely concerned that the State is setting up a two-tier system where low-income and poor people of color are cut out,"said Robert Tolbert, an 18 year survivor of HIV and board member of VOCAL-NY. "We suggested a number of ways the state could meet the needs of low income New Yorkers, and they chose to ignore them all. This is disgraceful."
Despite strenuous opposition form advocates and industry alike, the final regulations also prohibit the sale of whole plant matter and limit each producer to manufacturing five strains, even though there are dozens of therapeutic strains for treating a variety of different symptoms and conditions.
"I'm dismayed that DOH chose to restrict access to the whole plant," said Donna Romano of Syracuse. "Many patients, like me, want the benefits of the natural, whole plant. Important compounds, like terpenoids, can be lost during the extraction process. And doctors and their patients need to be able to try different strains to figure out which ones are most therapeutic for a given condition. There is no sound rationale for limiting access to the whole plant and restricting the number of strains to five."
Advocates are also concerned that there simply won't be enough supply to meet demand, especially in rural regions of the state.
"With only five producers and twenty dispensaries for a state with 54,000 square miles and a population of almost 20 million, many patients are going to have a hard time getting the medicine they need," said Jumanne McDaniel from Long Island, who is living with disability associated with spinal injury. "Many of the patients who will qualify for medical marijuana in New York are gravely ill or severely disabled. They should not have to drive hundreds of miles to get the medicine they need."
As concerning as the particular provisions that will leave patients to suffer needlessly is the Administration's disregard for the input of the public and experts in the field.
"Substantive concerns were provided by hundreds of people who are in need of accessing medical marijuana," said Janet Weinberg, a cancer survivor and leader in Compassionate Care NY, a statewide coalition of patients, families and providers. "They expressed that need, and the Administration did not make any changes. The regulations do not provide consistency in utilizing a medical model. Rather it seems they selected the most restrictive provisions they could rather than working to create maximal access for patients in need."
Ironically, all of the state's efforts to prevent diversion will likely have the opposite of the intended effect. Because they will not have access to the medicine they need, patients will be forced to continue purchasing marijuana on the illicit market - subjecting themselves to criminal penalties - or to simply continue suffering. Advocates noted that by releasing the final regulations at the same time as the state budget was being completed, the restrictive, unworkable regulations would get buried in the budget new cycle.
"It's baffling and downright unacceptable for Governor Cuomo to ignore both the science on medical marijuana and the evidence on medical marijuana programs," said gabriel sayegh, managing director of policy and campaigns for the Drug Policy Alliance. "Since Cuomo is abandoning patients and families in need in pursuit of a war on drugs approach, we have no choice but to return to the legislature to fix New York's medical marijuana program."