Andrew Zwerling Authored An Article “Dear NY Medical Marijuana Attorney: What Happens After A Patient Is Issued A Certification Permitting The Purchase Of Medical Marijuana”

February 4, 2020

 

Dear New York Medical Marijuana Attorney: What Happens After A Qualified Patient Is Issued A Certification Permitting The Purchase Of Medical Marijuana

The Medical Society of the State of New York’s eNews

February 2020

By: Andrew Zwerling

In 2014, New York enacted the Compassionate Care Act, which ultimately led to the implementation of New York’s Medical Marijuana Program (the “Program”). The Program allows patients who suffer from specific serious conditions and who also have a condition clinically associated with, or a complication of, the serious condition, to be certified by a qualified practitioner to receive medical marijuana products for medical use.

This then raises the issue: what happens after the patient is issued his or her certification from a qualified practitioner.

The Registration Requirement
Once a patient possesses a certification from a registered practitioner, the patient must register with the Medical Marijuana program through the New York State Department of Health’s (“DOH”) online Patient Registration System. The certified patient must be a resident of New York State, or be receiving care and treatment in New York State; and possess a certification issued by a registered practitioner. As specified by statute and regulation, patients will be required to provide proof of their identity and residency during the application process.

If an applicant applying for registration is not a resident of New York State but is receiving care and treatment in this state, he or she may qualify for registration as a certified patient if the person otherwise meets the requirements necessary to be a certified patient under Article 33 of the Public Health Law, and is temporarily residing in New York State for the purpose of receiving care and treatment from a practitioner registered with the department. Notably, being registered under the Program does not grant the non-New York State resident/applicant authorization to transport approved medical marijuana products outside of New York State.

Designated Caregivers and Designated Facilities
A certified patient may designate up to two proposed designated caregivers, either a natural person or a facility. (The term “facility” includes, but is not limited to, a general hospital or a residential health care facility operating pursuant to Article 28 of the Public Health Law or any individual division, department, component, floor or other unit of such facilities.) No person may be a designated caregiver for more than five certified patients at one time. A certified patient’s designation of a designated caregiver shall not be valid unless and until the proposed designated caregiver successfully applies for and receives a designated caregiver registry identification card.

Once registered with DOH as a designated caregiver, a facility may assist the patient with the possession, acquisition, delivery, transfer, transportation, and/or administration of approved medical marijuana products. There are strict requirements with regard to the storage of approved medical marijuana products in order to diminish the risk of diversion, as well as regarding the disposal of such products. Such products must be disposed of in a manner that renders the product non-recoverable beyond reclamation.

Procedures And Protocols After The Issuance Of A Registry ID Card
Certified patients or their designated caregivers who are registered with the Medical Marijuana Program can purchase medical marijuana products from a registered organization’s dispensing facility in New York State (whose locations can be found on the DOH website) by bringing their registry ID cards and their certifications to the dispensing facility. Designated caregivers obtaining medical marijuana on behalf of their patients must bring their caregiver registry identification cards and their patients’ certifications to the dispensing facility.

Certified patients and designated caregivers must always carry their registry ID card whenever they possess approved medical marijuana products, and medical marijuana products may not be transported outside of New York State. New York State does not accept certifications or registry ID cards from other states.

Protocols Relating To The Dispensing And Use Of Medical Marijuana
The marijuana that may be possessed by a certified patient shall not exceed a thirty day supply of the dosage as determined by the qualified practitioner, except that during the last seven days of any thirty day period, the certified patient may also possess up to such amount for the next thirty day period. The medical marijuana must be kept in the original package in which it was dispensed, except for the portion removed for immediate consumption for certified medical use by the certified patient.

Each registered organization may initially produce up to five brands of medical marijuana product, with each brand having a specific concentration of total Tetrahydrocannabinol (THC) and total Cannabidiol (CBD), with the price set by DOH. Approved medical marijuana products are limited to the following forms of administration: 1) metered liquid or oil preparations; 2) solid and semisolid preparations (e.g. capsules, chewable and effervescent tablets, lozenges); 3) metered ground plant preparations; and 4) topical forms and transdermal patches. Medical marijuana may not be incorporated into food products by a registered organization, unless approved by DOH. Importantly, smoking is not an approved route of administration.

Where Medical Marijuana May Be Used By The Certified Patient
Possession of medical marijuana shall not be lawful if it is smoked, consumed, vaporized, or grown in a public place, regardless of the form of medical marijuana stated in the patient’s certification. Approved medical marijuana products are prohibited from being vaporized in a public place. Likewise, vaporization of approved medical marijuana products shall not be permitted and no person shall vaporize an approved medical marijuana product within 100 feet of the entrances, exits or outdoor areas of any public or private elementary or secondary schools (unless the vaporization transpires in a residence, or within real property boundary lines of such residential real property).

Also, consumption of approved medical marijuana product shall not be permitted in any motor vehicle, either public or private, that is located upon public highways, private roads open to motor vehicle traffic, parking area of a shopping center or any parking lot, as defined in section 129 of the Vehicle and Traffic Law.

Finally, if a certified patient or designated caregiver willfully violates any provisions of the Program, his or her registry identification card may be suspended or revoked.

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Andrew L. Zwerling is a Partner-Director at Garfunkel Wild P.C. with over 37 years as a trial and appellate lawyer in State and Federal courts, including his successful argument before the United States Supreme Court. He counsels clients on issues relating to the New York State Medical Marijuana Program, and may be reached at 516-393-2581 and by email at azwerling@garfunkelwild.com.

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