By Weiss Zarett Brofman Sonnenklar & Levy, PC
Prior to the enactment of the Compassionate Care Act, a vast number of practitioners relied on prescription opioids to treat patients with severe pain. Now, a practitioner may certify patients to use an approved medical marijuana product (as an alternative to opioids as part of a patient’s treatment plan), under the New York State Medical Marijuana Program (“MMP”) and current emergency regulations.
It is no secret that New York has suffered irreparably as a result of the opioid epidemic ravaging our communities. In an effort to reduce the number of deaths, overdoses and dependency associated with opioid prescribing, this past summer, the New York State Department of Health (“NYSDOH”) issued emergency regulations which announced that, in addition to the twelve (12) other conditions which qualify under the Medical Marijuana Program, practitioners who have met all prerequisites under the MMP may certify their patients for medical marijuana use in lieu of prescribing opioids. In full text, the patient’s diagnosis which qualifies for certification is “pain that degrades health and functional capability where the use of medical marihuana is an alternative to opioid use, provided that the precise underlying condition is expressly stated on the patient’s certification[.]”
Research has shown a correlation between state medical marijuana laws and decreases in opioid use and/or opioid-related deaths. The NYSDOH, in finding necessity for the emergency rule stated:
In New York State, the number of overdose deaths involving opioids has increased from over 1,000 deaths in 2010, to over 3,000 deaths in 2016. The opioid epidemic is an unprecedented crisis and practitioners should have as many treatment options available to them as possible.
Medical marijuana has been demonstrated to be an effective treatment option for pain, thereby reducing the chance of dependence and the risk of fatal overdose as compared to opioid-based medications. Studies of some states with medical marijuana programs have found notable associations of reductions in opioid deaths and opioid prescribing with the availability of cannabis products. States with medical marijuana programs have also been found to have less opioid overdose deaths than other states by as much as 25 percent. Studies of opioid prescribing in some states with medical marijuana programs have noted a 5.88 percent lower rate of opioid prescribing.
In support of the emergency regulations, NYSDOH Commissioner Dr. Howard Zucker stated, “Adding opioid replacement as a qualifying condition for medical marijuana offers providers another treatment option, which is a critical step in combatting the deadly opioid epidemic affecting people across the state.”
As the current law stands, not all patients with debilitating conditions may be certified under the MMP. The current severe or life-threatening conditions which qualify for the Medical Marijuana Program are: cancer; HIV/AIDS; ALS; Parkinson’s disease; multiple sclerosis; spinal cord injury with spasticity; epilepsy; inflammatory bowel disease; neuropathies; Huntington’s disease; chronic pain; PTSD; substance use disorder or as a replacement for opioids. However, a patient must also have one of the following clinically associated conditions, symptoms or complications in order to be certified: Cachexia or wasting syndrome; severe or chronic pain resulting in substantial limitation of function; severe nausea; seizures; severe or persistent muscle spasms; PTSD or, as also added by the emergency regulations, opioid use disorder, but only if enrolled in a treatment program certified pursuant to Article 32 of the Mental Hygiene Law.
In addition to physicians, recent amendments to the law allow nurse practitioners or physician assistants practicing under the supervision of a licensed and registered physician, to certify patients for medical marijuana use. All practitioners must be licensed/certified, in good standing and practicing in New York State. However, not all practitioners even if licensed, in good standing and practicing in New York State may qualify to register under the MMP. Practitioners must be qualified through his/her training and/or experience to treat patients with one or more of the severe or life-threatening conditions outlined above.
Prior to registration, practitioners are required to complete a two (2) hour minimum NYSDOH-approved education course. Under the regulations, the course content includes the pharmacology of marijuana, contraindications, side effects; adverse reactions; overdose prevention; drug interactions; dosing; routes of administration; risks and benefits; warnings and precautions; abuse and dependence; and such other components as determined by the commissioner.
Just as practitioners must keep a detailed medical record when diagnosing conditions and prescribing pharmaceuticals, the same applies to the diagnosing and certification of patients under the MMP. The Public Health Law requires practitioners to consult the prescription monitoring drug program registry before certifying a patient under the MMP. Practitioners must be fully aware of a patient’s controlled substance history before issuing a certification. Also, similar to a practitioner’s obligation to comply with traditional informed consent requirements, the NYSDOH regulations requires that the practitioner note the medical record that he/she has explained the potential risks and benefits of the use of medical marijuana to the patient or his/her guardian.
The laws surrounding the MMP are complex and continue to evolve. Practitioners who are registered to certify patients under the MMP must stay up-to-date on all rule and regulation changes and should seek legal advice if they are unsure whether they remain compliant with the MMP. Practitioners who are considering registering under the MMP should consult an attorney if they are not fully familiar with the rules and regulations or have any questions regarding their obligations under the law.
ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.
 2018 NY REG TEXT 499366 (NS), 2018 NY REG TEXT 499366 (NS).
 N.Y. Comp. Codes R. & Regs. tit. 10, § 1004.1