In July 2014, New York became the 23rd state, along with the District of Columbia, to legalize medical marijuana, when Governor Andrew Cuomo signed the Compassionate Care Act (N.Y. Pub. Health. L. § 3369 (2014)) into law. Originally, New York’s medical marijuana program was considered one of the most restrictive in the country, with only ten qualifying conditions listed. These included cancer, positive status for HIV or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson’s disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington’s disease. Despite this rather narrow list of qualifying conditions, within the first six months of operation, over 5,000 patients were certified within the program.

Since its inception, the Department of Health has made significant strides to expand the medical marijuana program, including adding additional qualifying conditions. In late March 2016, chronic pain was added as a qualifying condition. Chronic pain has been loosely defined by the Department of Health as “any severe debilitating pain that the practitioner determines degrades health and functional capability.”However, to qualify for medical marijuana treatment, there must be a showing that the individual “has experienced intolerable side effects, or has experienced failure of one or more previously tried therapeutic options” and that the pain has lasted or is likely to last longer than three months. Within two months of the addition of chronic pain as a qualifying condition, over 3,350 new patients were certified for the program, an 18% increase.

On November 11, 2017, Governor Cuomo signed a bill adding post-traumatic stress disorder (PTSD) as a qualifying condition for medical marijuana, indicating in a speech that this expansion was aimed at increasing treatment options for veterans suffering from the disorder.

The most recent, and perhaps most expansive, addition to New York’s medical marijuana program is the inclusion of opioid replacement as a qualifying condition. In an emergency regulation, the Department of Health added “any condition for which an opioid could be prescribed” as a qualifying condition.Under the new regulations, a registered practitioner may certify a patient to use medical marijuana as a replacement for opioid medication, so long as the underlying condition for which an opioid would otherwise be prescribed is noted on the certification.This language effectively removes the strict criteria previously placed on providers for prescribing medical marijuana for the treatment of chronic pain. Moreover, according to the FAQ section on the Department of Health website, a patient need not already be prescribed an opioid to be eligible for certification, so long as their underlying condition would support the use of treatment with opioid medication. The regulation also adds “opioid use disorder” as an associated condition, meaning that patients with opioid use disorder may use medical marijuana as an opioid replacement, as long as they are enrolled in a certified treatment program.

As the final regulation has not yet been adopted, it remains to be seen whether changes to the current program will be implemented, but the emergency regulation indicates that the Department of Health is pushing a move from narcotic medication toward medical marijuana. The above changes, as well as the significant number of other expansions to the medical marijuana program since its inception, raise the question of just how many other qualifying conditions will be added in the future, or whether we are moving toward general legalization of marijuana for adult use in the state. Stay tuned.

Article written by Kristin A. Hazlet, Esq. For more information, contact Ms. Hazlet at (607) 231-6821 or via email at khazlet@hhk.com