powered by LeadingAge New York

DOH Issues Emergency Rule on Medical Marijuana in Facilities

The Department of Health (DOH) has issued an emergency regulation, effective Oct. 5, 2017, 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.

Under the emergency regulations, a facility could 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.

According to the Regulatory Impact Statement, the MM regulations had only allowed for designated caregivers to be natural persons. However, recognizing that certified patients may be residing in certain facilities, the emergency 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 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 emergency regulation also:

  • Clarifies 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 (although Medicaid has not provided for this as of yet); 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 had been asked for its input on the proposal, and we sought clarification that the program is voluntary on the part of facilities and that facilities and their employees would not be subject to increased liability in connection with acting as designated caregivers.

Members with questions or comments are asked to contact us. We expect the regulation to be published for comment in the State Register in the next couple of weeks.

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