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Capital NY: Marijuana law co-sponsor urges patience

By Dan Goldberg & Laura Nahmias, 4/1/15

Democratic State Senator Diane Savino, a co-sponsor of the bill that created New York’s medical marijuana program, said Wednesday she is pleased with the law’s final regulations and urged critics, who accused the Cuomo administration of “abandoning patients and families in need in pursuit of a war on drugs approach,” to be patient with the health department and the fledgling program.

“Look, I understand the role of advocates and it’s always [their job] to push for more and I’m not going to debate that,” Savino said. “I think it’s a far cry from their insinuation that patients have been abandoned. I just simply don’t accept that and don’t agree.”

Assemblyman Richard Gottfried, who sponsored the law in the Assembly, was far less conciliatory and accused the administration of setting the law up to fail.

“[The Department of Health] received over 1,000 comments from patients and their family members, health care providers, and others,” Gottfried said in an email. “The final regulations make almost none of the recommended changes. The D.O.H. response to many comments is: ‘will consider’ or ‘will take under advisement.’ That is what D.O.H. was supposed to have done during this comment period.”

Patient advocates echoed Gottfried’s frustrations, releasing a joint statement Wednesday expressing disappointment and reiterating many of the same issues they’ve had since the proposed regulations were released in December. The final regulations were released Tuesday night.

“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 patient advocacy group. “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.”

Monica Mahaffey, spokeswoman for the health department, said the state had to balance patient needs against a federal government that still considers marijuana to be illegal.

“New York State—recognizing that possession and use of marijuana is illegal in the United States but that scientific evidence supports the efficacy of using cannabidiol in treating debilitating and life threatening illnesses and conditions—has created balanced legislation that ensures appropriate access through comprehensive regulations and safeguards,” Mahaffey said in an email. “The state developed the regulations through this very critical lens to ensure that the entire program would not be subject to enforcement action or legal challenges. Expanding the initial set of regulations would have subjected the State to unnecessary scrutiny and jeopardized the program’s ability to move forward in any meaningful manner.”

Savino said the Department of Health did a good job answering questions from people with requests for clarification about how the program would work, and commended health officials for moving swiftly.

“The one thing I would like people to take into consideration is that at every step of the process they have met every deadline that they’ve set,” she said. “They are on a deadline to meet the January 2016 implementation and that’s 18 months [from the time the bill was signed]. If you look at states that have had a statute passed, the average wait time is 25 months.”

Savino did agree with advocates who worry the program won’t be robust enough to accommodate all patients who need the drug. The regulations allow for five registered organizations to each set up four dispensaries, for a total of 20 across the state.

That leaves many concerned that patients, especially those with debilitating diseases, will have to travel long distances to receive their medication.

“I still think that five license holders and 20 dispensaries is not going to be enough for the state,” she said. “If it were up to me, the program would be bigger and would help address a state the size of New York. … I think the commissioner and the state realize that that could be a problem, so they emphasize over and over [in the regulations] that the program could be expanded at the discretion of the commissioner if the need arises.”

That doesn’t do much for patients currently in need, whose access may be limited, advocates said.

Advocates were also upset the final regulations make no mention of covering any additional illnesses, only saying that the health commissioner may issue guidance on this in the future.

“As a veteran, I am dismayed that the final regulations fail to include PTSD [post traumatic stress disorder], which so many of my fellow soldiers suffer from on a daily basis,” Bill Gilson, president of the New York City chapter of Veterans for Peace, said in the press release.

The specific shortcomings that advocates enumerated led them to wonder whether the Cuomo administration was being less than upfront about its desire to have a program that served patients’ needs.

“The regulations will make the system prohibitively expensive to comply with, create an inordinate disadvantage for any but the most heavily-capitalized entities; create a system that is unjustifiably burdensome for patients and providers; and include many provisions beyond what is authorized by the statute,” Gottfried said. “The proposed regulations would deprive seriously ill patients of relief. One might wonder if the regulations were designed to prevent the system from operating at all.”

Gabriel Sayegh, managing director of policy and campaigns for the Drug Policy Alliance, wondered whether the timing of the regulations’ release was a clue to how the Cuomo administration really felt.

“They understand the regulations are bad, that the people waiting for medical marijuana are not going to be happy,” he said. “So when do you do it? The same night the $142 billion budget is being finalized. There are lots of stories going to be written about the budget. My guess is that they are hoping this won’t be one of them. If they were really proud of the regulations, if they had actually bothered to incorporate any of the suggestions, then you would do it, presumably when there is more public attention, and take the victory lap and we all would be happy.”