NY State Senate Bill 2021-S4040

Senate Bill S4040

2021-2022 Legislative Session

Relates to allowing for facility caregivers to possess medical marihuana in a similar manner to that of a designated caregiver

download bill text pdf

Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to health
Feb 01, 2021	referred to health

2021-S4040 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §§3360, 3362, 3363, 3364, 3365 & 3367, Pub Health L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8148
2019-2020: S2059

2021-S4040 (ACTIVE) - Summary

Relates to allowing for facility caregivers to possess medical marihuana in a similar manner to that of a designated caregiver; relates to medical marihuana research.

2021-S4040 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S4040

SPONSOR: SAVINO
 
TITLE OF BILL:

An act to amend the public health law, in relation to allowing for
facility caregivers to possess medical marihuana in a similar manner to
that of a designated caregiver

 
PURPOSE OR GENERAL IDEA OF BILL:

To expand the categories of practitioners authorized to certify patients
for medical marijuana; authorize facility caregivers to possess medical
marijuana in a similar manner to designated caregivers; expand laborato-
ry testing of medical marijuana; authorize contracting out of certain
services by medical marijuana companies; authorize additional dispensing
sites; and authorize medical marijuana research.

 
SUMMARY OF PROVISIONS:

Section 1: Amends Public Health Law § 3360 to allow any practitioner

authorized to prescribe controlled substances to certify patients for
medical marijuana.

Section 2. Amends § 3360 to create the category of "facility caregivers"
who can act as designated caregivers for patients.

Section 3. Amends § 3362 to authorize facility caregivers to act as
designated caregivers, subject to certain requirements.

Section 4. Amends § 3363 to exempt facility caregivers from limits on
the number of patients a caregiver may serve.

Section 5. Amends 5 3364 to remove the requirement that laboratories
testing medical marijuana be licensed by the Federal Drug Enforcement
Administration.

Section 6. Amends § 3364 to authorize medical marijuana companies

("registered organizations") to contract with another company for
certain services, facilities, or equipment, provided that all applicable
laws governing the. services, facilities, or equipment shall apply to
the contractor.

Section 7. Amends § 3365 to increase the number of dispensing sites per
registered organization from 4 to 8 and provides a distribution of these
sites by region.

Section 8. Amends § 3367 to authorize the commissioner to make regu-
lations authorizing medical marijuana research.

Section 9. Effective date.

 
JUSTIFICATION:

This bill addresses several problems with the medical marijuana programs
identified by patient advocates and medical marijuana companies. Despite
recent legislative and administration actions, the program remains
excessively restrictive. This bill does the following:  -Expand the
categories of practitioners authorized to certify patients. Today,
physicians, physician assistants, and nurse practitioners can certify
patients. However, there are other categories of practitioner outside
these who are authorized to prescribe much more dangerous substances and
often treat conditions for which a patient may be eligible (such as
podiatrists and dentists whose treatments involve pain medication.) This
bill expands the practitioner categories to cover these groups.

-Authorize facility caregivers.

Current law allows patients to designate up to two of their own caregiv-
ers under the program. Caregivers are capped at five patients each.
These caps have caused problems identifying caregivers to administer the
medication in residential facilities or hospitals where there may be
dozens of patients either using or eligible for medical marijuana. This
bill designates categories of residential health care providers as
"facility caregivers" who would be exempt from the caps.

-Expand lab testing.  Today, the State's Wadsworth Laboratory is the
only one authorized to test medical marijuana. As the program expands,
more lab capacity is needed. Commercial labs with Drug Enforcement Agen-
cy (DEA) licenses may be reluctant to test medical marijuana out of fear
of endangering these DEA licenses. This bill would remove the require-
ment that a lab which tests medical marijuana hold a DEA license.

-Allow contracting out.

Registered organizations (R0s) are currently not allowed to contract out
any part of the production and distribution processes. This mandatory
vertical integration - normally discouraged when not banned outright is
inefficient and raises costs. This bill allows ROs to contract out some
of their functions, including operating dispensaries, while ensuring
that all laws applicable to the RO would apply to the contractors as
well. The Commissioner of Health would review any contracting out, and
would not unreasonably withhold or delay approval of same.

-Expand dispensing sites.  Current law authorizes up to four dispensar-
ies for each of the 10 ROs.

This places New York at the bottom of State medical marijuana programs
for dispensary access per population. This bill would double the number
from 4 to 8 per RO, with a distribution spelled out to ensure geographic
access.

-Authorize research.

While there is significant research being done overseas, medical mari-
juana research in the United States is limited. This bill would facili-
tate medical marijuana research in New York based on departmental regu-
lations.

 
PRIOR LEGISLATIVE HISTORY:

2017-18 Sessions: New bill - S8148 - referred to Health 2019-20
Sessions: S2059 - referred to Health

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

Increased tax revenue to the State and relevant counties would be
expected from increased participation in the medical cannabis program.

 
EFFECTIVE DATE:
Parts immediate; parts 90 days

2021-S4040 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4040
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             February 1, 2021
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health  law,  in  relation  to  allowing  for
   facility  caregivers  to possess medical marihuana in a similar manner
   to that of a designated caregiver

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 12 of section 3360 of the public health law, as
 added  by  chapter 90 of the laws of 2014, is amended and a new subdivi-
 sion 19 is added to read as follows:
   12. "Practitioner" means a  practitioner  who  (i)  is  [a  physician]
 AUTHORIZED  BY  THIS  ARTICLE  TO  PRESCRIBE  A CONTROLLED SUBSTANCE, IS
 licensed [by New York state and practicing within the state]  OR  OTHER-
 WISE  AUTHORIZED TO PRACTICE UNDER TITLE EIGHT OF THE EDUCATION LAW, AND
 IS ACTING WITHIN HIS OR HER LAWFUL SCOPE  OF  PRACTICE,  (ii)  [who]  by
 training  or  experience  is  qualified  to treat a serious condition as
 defined in subdivision seven of this section; and (iii) has completed  a
 two  to four hour course as determined by the commissioner in regulation
 and registered with the department;  provided  however,  a  registration
 shall  not  be  denied without cause. Such course may count toward board
 certification requirements.  [The commissioner shall consider the inclu-
 sion of nurse practitioners under this title based  upon  considerations
 including  access and availability. After such consideration the commis-
 sioner is authorized to deem nurse practitioners as practitioners  under
 this title.]
   19.  "MEDICAL  MARIHUANA  RESEARCH  PROGRAM" MEANS A MEDICAL MARIHUANA
 RESEARCH PROGRAM UNDER SUBDIVISION THREE OF SECTION THIRTY-THREE HUNDRED
 SIXTY-SEVEN OF THIS TITLE.
   § 2. Subdivision 5 of section 3360 of the public health law, as  added
 by  chapter  90 of the laws of 2014, is amended and two new subdivisions
 20 and 21 are added to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD00057-01-1

 S. 4040                             2
 
   5. "Designated caregiver" means the individual OR  FACILITY  CAREGIVER
 designated by a certified patient in a registry application. A certified
 patient  may  designate  up to two designated caregivers, NOT COUNTING A
 FACILITY CAREGIVER OR FACILITY CAREGIVER EMPLOYEE.
   20. "FACILITY CAREGIVER" MEANS ANY OF THE FOLLOWING THAT IS CARING FOR
 THE CERTIFIED PATIENT:
   (A)  A  GENERAL HOSPITAL OR RESIDENTIAL HEALTH CARE FACILITY OPERATING
 PURSUANT TO ARTICLE TWENTY-EIGHT OF THIS CHAPTER;
   (B) AN ADULT CARE FACILITY OPERATING PURSUANT TO TITLE TWO OF  ARTICLE
 SEVEN OF THE SOCIAL SERVICES LAW;
   (C)  A  COMMUNITY  MENTAL  HEALTH  RESIDENCE  ESTABLISHED  PURSUANT TO
 SECTION 41.44 OF THE MENTAL HYGIENE LAW;
   (D) A HOSPITAL OPERATING  PURSUANT  TO  SECTION  7.17  OF  THE  MENTAL
 HYGIENE LAW;
   (E) A MENTAL HYGIENE FACILITY OPERATING PURSUANT TO ARTICLE THIRTY-ONE
 OF THE MENTAL HYGIENE LAW;
   (F)  AN  INPATIENT OR RESIDENTIAL TREATMENT PROGRAM CERTIFIED PURSUANT
 TO ARTICLE THIRTY-TWO OF THE MENTAL HYGIENE LAW;
   (G) A RESIDENTIAL FACILITY FOR THE CARE AND TREATMENT OF PERSONS  WITH
 DEVELOPMENTAL  DISABILITIES OPERATING PURSUANT TO ARTICLE SIXTEEN OF THE
 MENTAL HYGIENE LAW;
   (H) A RESIDENTIAL TREATMENT FACILITY FOR CHILDREN AND YOUTH  OPERATING
 PURSUANT TO ARTICLE THIRTY-ONE OF THE MENTAL HYGIENE LAW;
   (I) A PRIVATE OR PUBLIC PRIMARY OR SECONDARY SCHOOL CHARTED BY THE NEW
 YORK  STATE  BOARD OF REGENTS PURSUANT TO SECTION TWO HUNDRED SIXTEEN OF
 THE EDUCATION LAW;
   (J) AN ENTITY CONDUCTING  OR  PARTICIPATING  IN  A  MEDICAL  MARIHUANA
 RESEARCH PROGRAM UNDER SUBDIVISION THREE OF SECTION THIRTY-THREE HUNDRED
 SIXTY-SEVEN  OF THIS TITLE, WITH RESPECT TO A CERTIFIED PATIENT ENROLLED
 IN THE PROGRAM;
   (K) ANY OTHER FACILITY DEEMED APPROPRIATE BY THE COMMISSIONER; OR
   (L) A FACILITY CAREGIVER EMPLOYEE.
   21. "FACILITY CAREGIVER EMPLOYEE" MEANS  AN  EMPLOYEE  OF  A  FACILITY
 CAREGIVER  WHO  PERFORMS  THE SERVICES OF A DESIGNATED CAREGIVER FOR THE
 FACILITY CAREGIVER.
   § 3. Subdivision 2 of section 3362 of the public health law, as  added
 by chapter 90 of the laws of 2014, is amended and a new subdivision 3 is
 added to read as follows:
   2. Notwithstanding subdivision one of this section:
   (a)  possession  of  medical  marihuana shall not be lawful under this
 title if it is smoked, consumed, vaporized, or grown in a public  place,
 regardless  of  the  form  of  medical marihuana stated in the patient's
 certification.
   (b) a [person] CERTIFIED PATIENT OR  DESIGNATED  CAREGIVER  possessing
 medical  marihuana  under  this  title shall possess his or her registry
 identification card at all times when in immediate possession of medical
 marihuana.
   3. THE POSSESSION, ACQUISITION, TRANSPORTATION, STORAGE,  OR  ADMINIS-
 TRATION  OF  MEDICAL  MARIHUANA BY A FACILITY CAREGIVER, SHALL BE LAWFUL
 UNDER THIS TITLE; PROVIDED THAT:
   (A) THE FACILITY CAREGIVER FIRST REGISTERS WITH THE DEPARTMENT,  ON  A
 FORM PRESCRIBED BY THE COMMISSIONER;
   (B) SUCH POSSESSION, ACQUISITION, TRANSPORTATION, STORAGE, OR ADMINIS-
 TRATION IS ON BEHALF OF A CERTIFIED PATIENT;

 S. 4040                             3

   (C)  THE FACILITY CAREGIVER MAINTAINS A COPY OF THE REGISTRY IDENTIFI-
 CATION CARD OF EACH CERTIFIED PATIENT FOR WHICH IT POSSESSES,  ACQUIRES,
 TRANSPORTS, STORES OR ADMINISTERS MEDICAL MARIHUANA; AND
   (D)  A  FACILITY CAREGIVER EMPLOYEE SHALL BE IDENTIFIED AS AN EMPLOYEE
 WHEN NECESSARY, AS PROVIDED BY THE COMMISSIONER.
   § 4. Subdivisions 2, 3 and 5 of section 3363 of the public health law,
 as added by chapter 90 of the laws of  2014,  are  amended  to  read  as
 follows:
   2.  To obtain, amend or renew a registry identification card, a certi-
 fied patient or designated caregiver shall file a  registry  application
 with  the  department.  The  registry application or renewal application
 shall include:
   (a) in the case of a certified patient:
   (i) the patient's certification (a new written certification shall  be
 provided with a renewal application);
   (ii) the name, address, and date of birth of the patient;
   (iii) the date of the certification;
   (iv)  if  the  patient  has  a registry identification card based on a
 current valid certification,  the  registry  identification  number  and
 expiration date of that registry identification card;
   (v)  the  specified  date  until  which the patient would benefit from
 medical marihuana, if the certification states such a date;
   (vi) the name, address, federal  registration  number,  and  telephone
 number of the certifying practitioner;
   (vii)  any  recommendation or limitation by the practitioner as to the
 form or forms of medical marihuana or dosage for the certified  patient;
 and
   (viii)  other  individual  identifying  information  required  by  the
 department;
   (b) in the case of a certified patient, if the  patient  designates  a
 designated caregiver, the name, address, and date of birth of the desig-
 nated  caregiver,  and other individual identifying information required
 by the department;
   (c) in the case of a designated caregiver:
   (i) the name, address, and date of birth of the designated caregiver;
   (ii) if the designated caregiver has a registry  identification  card,
 the  registry identification number and expiration date of that registry
 identification card; and
   (iii) other individual identifying information required by the depart-
 ment;
   (d) IN THE CASE OF A FACILITY CAREGIVER, THE FACILITY  SHALL  MAKE  AN
 APPLICATION  UNDER  PARAGRAPH  (C) OF THIS SUBDIVISION FOR THE FACILITY;
 THE COMMISSIONER SHALL APPROPRIATELY MODIFY THE REQUIREMENTS FOR  INFOR-
 MATION  TO  BE  PROVIDED IN THE APPLICATION OF A FACILITY CAREGIVER; AND
 DESIGNATION OF FACILITY CAREGIVER EMPLOYEES SHALL NOT BE REQUIRED;
   (E) a statement that a false statement  made  in  the  application  is
 punishable under section 210.45 of the penal law;
   [(e)]  (F) the date of the application and the signature of the certi-
 fied patient or designated caregiver, as the case may be;
   [(f)] (G) a fifty dollar application fee, provided, that  the  depart-
 ment may waive or reduce the fee in cases of financial hardship; and
   [(g)] (H) any other requirements determined by the commissioner.
   3. Where a certified patient is under the age of eighteen:
   (a)  The  application for a registry identification card shall be made
 by an appropriate person over twenty-one years of age.  The  application
 shall state facts demonstrating that the person is appropriate.

 S. 4040                             4
 
   (b)  The  designated caregiver shall be (i) a parent or legal guardian
 of the certified patient, (ii) a person designated by a parent or  legal
 guardian, [or] (iii) IN THE CASE OF SUCH A CERTIFIED PATIENT BEING CARED
 FOR  BY  A  FACILITY CAREGIVER, THE FACILITY CAREGIVER DESIGNATED BY THE
 PARENT  OR LEGAL GUARDIAN OF THE CERTIFIED PATIENT, OR (IV) an appropri-
 ate person approved by the department upon a sufficient showing that  no
 parent or legal guardian is appropriate or available.
   5.  No  person may be a designated caregiver for more than five certi-
 fied patients at one time; PROVIDED THAT THIS LIMITATION SHALL NOT APPLY
 TO A FACILITY CAREGIVER OR FACILITY CAREGIVER EMPLOYEE.
   § 5. Subdivision 3 of section 3364 of the public health law, as  added
 by chapter 90 of the laws of 2014, is amended to read as follows:
   3.  Each  registered  organization  shall contract with an independent
 laboratory to test the medical  marihuana  produced  by  the  registered
 organization.  The commissioner shall approve the laboratory and require
 that the laboratory report testing results in a manner determined by the
 commissioner. The commissioner is authorized to issue regulation requir-
 ing the laboratory to perform certain tests and services. SUCH LABORATO-
 RY SHALL NOT BE REQUIRED TO BE LICENSED BY THE FEDERAL DRUG  ENFORCEMENT
 ADMINISTRATION.
   §  6. Section 3364 of the public health law is amended by adding a new
 subdivision 14 to read as follows:
   14. A REGISTERED ORGANIZATION MAY CONTRACT WITH A PERSON OR ENTITY  TO
 PROVIDE  FACILITIES,  EQUIPMENT,  OR  SERVICES THAT ARE PART OF OR INCI-
 DENTAL TO THE REGISTERED ORGANIZATION'S FUNCTIONS  OR  ACTIVITIES  UNDER
 THIS  SECTION.  ALL  LAWS  AND REGULATIONS APPLICABLE TO THE FACILITIES,
 EQUIPMENT OR SERVICES SHALL APPLY  TO  THE  CONTRACTOR.  THE  REGISTERED
 ORGANIZATION AND OTHER PARTIES TO THE CONTRACT SHALL EACH BE RESPONSIBLE
 AND  ACCOUNTABLE FOR COMPLIANCE WITH SUCH LAWS AND REGULATIONS UNDER THE
 CONTRACT.  CONTRACTING UNDER THIS SUBDIVISION SHALL BE APPROVED  BY  THE
 COMMISSIONER,  UNLESS THE COMMISSIONER PROVIDES OTHERWISE BY REGULATION.
 THE COMMISSIONER MAY MAKE REGULATIONS CONSISTENT WITH THIS TITLE  RELAT-
 ING TO CONTRACTS AND PARTIES TO CONTRACTS UNDER THIS SUBDIVISION.
   §  7. Subdivision 9 of section 3365 of the public health law, as added
 by chapter 90 of the laws of 2014, is amended to read as follows:
   9. The commissioner shall register  [no  more  than  five]  registered
 organizations  that  manufacture  medical  marihuana  with  no more than
 [four] EIGHT dispensing sites wholly owned and  operated  by  EACH  such
 registered organization. The commissioner shall ensure that such [regis-
 tered organizations and] dispensing sites are geographically distributed
 across  the  state.  [The  commission may register additional registered
 organizations] EACH REGISTERED ORGANIZATION, GIVEN  NO  DISPENSING  SITE
 SHALL  BE  LOCATED  WITHIN ONE THOUSAND FEET OF ANOTHER DISPENSING SITE,
 SHALL BE ALLOWED TO OPERATE:
   (A) NO MORE THAN TWO DISPENSING SITES IN TOTAL IN THE COUNTIES OF  NEW
 YORK, KINGS, QUEENS, BRONX, AND RICHMOND;
   (B)  NO  MORE  THAN  TWO  DISPENSING SITES IN TOTAL IN THE COUNTIES OF
 NASSAU, SUFFOLK, AND WESTCHESTER; AND
   (C) NO MORE THAN FOUR DISPENSING SITES IN TOTAL IN THE COUNTIES  OTHER
 THAN  THE  COUNTIES OF NEW YORK, KINGS, QUEENS, BRONX, RICHMOND, NASSAU,
 SUFFOLK, AND WESTCHESTER.
   § 8. Subdivision 3 of section 3367 of the public health law is  renum-
 bered subdivision 4 and a new subdivision 3 is added to read as follows:
   3.   THE COMMISSIONER MAY MAKE REGULATIONS AUTHORIZING THE POSSESSION,
 ACQUISITION, USE, DELIVERY, TRANSFER, TRANSPORTATION, STORAGE, OR ADMIN-
 ISTRATION OF MEDICAL MARIHUANA FOR RESEARCH PURPOSES.

 S. 4040                             5
 
   § 9. This act shall take effect immediately; provided,  however,  that
 the  amendments to title 5-A of article 33 of the public health law made
 by sections one, two, three, four, five, six, seven and  eight  of  this
 act  shall  not  affect  the  repeal  of  such title and shall be deemed
 repealed  therewith; provided further, however, that sections two, three
 and four of this act shall take effect on the  ninetieth  day  after  it
 shall  have  become a law; and provided further, however, section six of
 this act shall take effect on the one hundred  eightieth  day  after  it
 shall  have become a law. Effective immediately, the addition, amendment
 and/or repeal of any rule or regulation necessary for the implementation
 of this act on  its  effective  date  are  authorized  to  be  made  and
 completed on or before such effective date.

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