Progress and hurdles for NY’s medical marijuana program

Joseph Spector

ALBANY — On Wednesday, Steven Ognibene had to take the day off from work.

The Rochester surgeon needed to drive three hours to Binghamton because the type of medical marijuana that could help his 11-year-old son, Vincent, wasn’t available locally. It was, though, available at a dispensary in Johnson City, Broome County.

The trip illustrates the obstacles some patients and their families are facing nearly one year after New York allowed for the use of medical marijuana in non-smokable forms for certain conditions.

The state Health Department in recent weeks has announced plans to expand the program amid complaints of limited access, high prices and regulatory hurdles that have discouraged doctors and patients from participating.

Ognibene, a colon-rectal surgeon, has seen medical marijuana help his son, who has severe autism and epilepsy. Ognibene also has prescribed it to a few of his patients, and they have responded well, too.

Yet the program’s restrictions have impeded his ability to easily get the drug to his patients and his son.

“When I think about what patients have to go through and what we had to go through, it’s been one of the most onerous processes that I’ve ever been involved with,” Ognibene said.

The five companies registered in New York to grow and sell medical marijuana at 20 dispensaries have also expressed frustration, saying they are all losing money and are hindered by the state’s stringent law.

The state has about 770 physicians registered in the program and about 11,000 patients. In comparison, New York has nearly 90,000 doctors and 19.8 million people.

“The demand for our product is a function of regulation. There’s a very, very limited number of New Yorkers who can purchase products from our businesses,” said Ari Hoffnung, CEO of Vireo Health, which grows its marijuana near Albany and has dispensaries in White Plains and Johnson City.

New regulations

The concerns are being addressed, the Health Department said.

Over the last month, it has released a series of new regulations that are expected to open up New York’s medical marijuana to more patients and health professionals.

Chronic pain has been added to the 10 conditions eligible for medical marijuana use, and the state is expanding the types of drugs available, which mainly come as oils, capsules and vaporizers.

Nurse practitioners can now certify patients for medical marijuana use, and soon physician assistants can, too.

The state is finishing up new regulations to let the companies offer each other’s products to customers, and it is working with the businesses on a home-delivery system.

By the middle of 2017, the Health Department also expects to allow five more companies to grow and distribute marijuana — a move to increase access in areas of the state without dispensaries.

The state plans to consider applications from the next top five ranked companies on a list of 43 that applied for the medical-marijuana licenses in 2015.

The state also said it’s working to make public a list of doctors who are registered with the state to prescribe the drug — something advocates have been clamoring for.

The Health Department was deliberately cautious when the program started last January to ensure medical marijuana wasn’t abused and to protect the rights of patients and doctors, said Josh Vinciguerra, who heads the department’s Bureau of Narcotics Enforcement.

“We had to be cautious and careful in the rollout because we weren’t sure how any of these things were going to play out in New York state with all the variables that we had,” he said.

The new changes are being applauded by the medical-marijuana companies, advocacy groups and state lawmakers who fought for the law’s approval in 2014. Gov. Andrew Cuomo signed the bill into law after years of being circumspect on the issue.

“In spite of people who have been critical of the department, they took a very complicated policy and they implemented it under the timeline written into the law,” said Sen. Diane Savino, D-Staten Island, who sponsored the bill.

“They met every deadline, and they didn’t dawdle when there was criticism and complaints.”

New York’s law

New York's  medical marijuana policy was the most restrictive in the nation when the dispensaries opened for business on Jan. 7.

The tight timeframe — the companies had 18 months to grow and distribute the product in time for the January opening — coupled with the limited ailments that could be treated with the drug led to a slow start for the program.

Etain, LLC, which manufacturers its marijuana in the North Country, said when it opened its Yonkers dispensary earlier this year, it didn’t have a customer for the first month. At its Kingston store, it was a few weeks before a client showed up.

The Johnson City dispensary, which is the only one in the Southern Tier, is so sparsely visited that it’s open only one day a week.

And it’s not for a lack of product.

“We have a significant surplus of oil at this point,” said Hillary Peckham, Etain’s COO.

“We just don’t have the patients who are purchasing it. That’s why we are supportive of the changes the department has made thus far.”

And without the patients, the prices can be exorbitant: Estimates for medical marijuana are between $200 to $2,000 a month, and even more in some cases — as much as $150 a day.

Twenty-eight states and Washington, D.C., have legalized medical marijuana, and New York officials said it has looked to other states in implementing its law — to either avoid pitfalls or note good ideas.

Nicholas Vita, the CEO of Columbia Care, which grows its marijuana in Rochester and has a dispensary nearby, said the company is taking a long-term view of the program even as it underperformed in the first year.

“Rather than saying we have fewer patients than expected, I would think about it along a timeline, which is to say the adoption curve hasn’t developed as quickly as we thought it would,” Vita said.

The existing companies are opposed to letting more growers into the state in the near term, saying the current ones haven’t even broken even yet.

Increasing enrollment

There are signs of progress. As of June, the program had 5,000 patients and about 600 doctors. Now the number of patients enrolled has doubled, with nearly 800 doctors registered.

A doctor needs to spend $249 to take a 4 ½-hour course to be registered into the program. A patient also has to be certified through the state, which comes with a $50 fee that the state has typically been waiving.

Across upstate, particularly in rural areas where the number of doctors can be limited, medical-marijuana providers have also been few.

For example, Broome and Chemung counties each had four registered practitioners, but Broome had 108 patients enrolled while Chemung had 28. Tompkins County had seven doctors and 59 patients in the program.

Monroe County had 27 physicians and registered 219 patients. That’s far less than Erie County, where 36 doctors had taken the course and 636 patients were certified, state records showed.

There’s still uncertainty about the medicinal effects of marijuana, said Nancy Adams, executive director of the Monroe County Medical Society.

“Our physicians are really approaching this very cautiously,” Adams said. “And by and large, the physicians I’m hearing from are looking for more evidence that medical marijuana will actually work.”

Next steps

Even with the proposed changes by the Health Department, the system is still upsetting patients and their families.

Because the federal government doesn’t recognize medical marijuana, the companies have to operate as cash businesses.

“They make you feel like a criminal. It’s a belittling experience,” Ognibene, the current president of the Monroe County Medical Society, said.

There’s also uncertainty over the program with a new president, Donald Trump, coming into office next month.

He has said he supports allowing states to regulate medical marijuana, but it’s unclear whether his administration will seek to change the federal government’s current hands-off policy on the issue.

As for New York, some advocates point to the lack of a public list of physicians enrolled in the program as a major impediment. Also, under current regulations, the growers and dispensaries are not allowed to advertise.

So patients can struggle to find where to go to get medical marijuana, said Kate Hintz, who organizes a group called Compassionate Care New York.

Hintz’s 5-year-old daughter, Morgan, suffers from severe epilepsy and takes a strain of medical marijuana not currently available in the state.

Hintz has called on New York to expand its program and make a list of registered practitioners public, saying she hears daily from patients who don’t know where to turn.

“It just seems like a real simple solution,” Hintz, who lives in North Salem, Westchester County.
“There are physicians they know who are willing to have their names released. They should just start releasing them and make some kind of list public.”

The Health Department said the issue isn’t so simple: Doctors have a right to refuse to have their names published publicly under state law, and many have indicated they don’t want their names released, citing safety concerns.

So the state is developing a two-tiered system: reaching out to doctors to see whether they would opt into a public list and improving a state-run internal system that doctors can check to refer patients to health professionals who are registered in the program.

Vinciguerra, the state Health Department official, said development of regulations from a law that was enacted more than two years ago continues to evolve as they learn more and hear from New Yorkers.

The program, he said, is still in its infancy.

“A lot of the adjustments we are making are a product of our experience over the first six months,” Vinciguerra said.

The program

Facts about New York’s medical marijuana program:

• The state has about 770 physicians registered in the program and about 11,000 patients since it started last January.
• To register, a health professional needs to take a $249, four-hour online class; patients need to get certified by a registered practitioner and sign up with the state.
• The state has 11 conditions that qualify for medical marijuana usage: chronic pain, cancer, HIV infection or AIDS; Lou Gehrig's disease; Parkinson’s disease; multiple sclerosis; spinal damage; epilepsy; inflammatory bowel disease; neuropathies; and Huntington’s disease.