DOH Adopts Final Rule on Medical Marijuana in Facilities

The Department of Health (DOH) has adopted final regulations, effective June 6, 2018, allowing certain types of facilities to act as “designated caregivers” under the state’s medical marijuana (MM) program. Nursing homes and adult care facilities are among the facility types identified in the regulation. This permanent regulation replaces emergency regulations that have been in effect since last October.

Under the final regulations, a facility may seek DOH approval to become a designated caregiver for a certified patient in the MM program. A certified patient must have one of the severe debilitating or life-threatening conditions identified in the regulations to receive a certification and register with the MM program. Patients with one of these conditions might not be able to visit the dispensing facilities to pick up their MM, or might not be able to administer MM to themselves properly, and therefore need to rely on designated caregivers.

The previous MM regulations had only allowed for designated caregivers to be natural persons. However, recognizing that certified patients may be residing in certain facilities, the newly adopted regulations will allow facilities to be designated caregivers. Facilities designated as caregivers by certified patients can now register with DOH, and each division, department, component, floor, or other unit of a facility can also be designated as a “facility” for purposes of being designated as a caregiver. After registering, a designated caregiver facility is authorized to possess, acquire, deliver, transfer, transport, and administer MM on behalf of a certified patient.

Importantly, the final regulation also:

• States that facilities have the option to become designated caregivers, but are not required to do so;
• Specifies that there is no cost to a facility to register as a caregiver. While the law allows for a $50 registration fee, DOH is currently waiving the fee for all designated caregivers, including facilities registering as designated caregivers;
• Indicates that designated caregivers may charge the certified patient for reasonable costs incurred in the transportation, delivery, storage, and administration of approved MM products; and
• Clarifies that designated caregivers, including employees of designated caregiver facilities, are protected against arrest, prosecution, penalty, or disciplinary action by a business or occupational or professional licensing board or bureau.

LeadingAge NY’s general counsel, Hinman Straub, will be updating its previous summary of the regulations, which we will distribute to members when it is available.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866