Medical Marijuana and the Elderly: Demographic Demand vs. Practical Barriers to Access

by Dana Walsh Sivak

In 2014, the New York State legislature passed the Compassionate Care Act,[1] which legalized the use of medicinal marijuana in New York. Since that time, a growing number of older adults are turning to medical marijuana to help treat a number of serious and debilitating medical conditions and to improve their overall quality of life. In fact, since the law passed, an unlikely demographic has emerged as one of the largest groups of patients seeking medical marijuana patient certifications in substantial numbers — the aging and elderly members of our communities, including those residing in skilled nursing facilities, assisted living facilities and other residential medical communities.[2] While some may have imagined that the aging population would resist the use of this once-stigmatized substance, holding onto traditional views harkening back to the era of “Reefer Madness,” the aging population has instead embraced the opportunity to utilize medical marijuana to alleviate pain and suffering, reduce reliance on opioids, and improve their overall quality of life.

Growing Popularity Among the Aging Population

According to the most recent report issued by the New York State Department of Health, approximately one-third of patients treating their conditions with medical marijuana are over the age of sixty.[3] The patients with the largest overall number of medical marijuana use fall within 51-60 years of age, suggesting that in the next ten years, the demographic of aging and elderly New Yorkers using medical marijuana will rise even more substantially.[4]

There are a multitude of reasons for this popularity among the aging population. The list of qualifying medical conditions deemed appropriate by the state for medical marijuana treatment aligns closely with those often found in the skilled nursing facility population.[5] For example, medical marijuana has reportedly been used in relatively large numbers by patients in the 61-70 and 71+ age groups to treat cancer, severe or chronic pain, cachexia/wasting syndrome, and severe nausea, which responds well to marijuana’s pain-reducing and appetite-stimulating effects.[6] Perhaps the most significant reason that medical marijuana has found such a strong patient base in this group of older patients lies in the desire for aging New Yorkers to optimize their quality of life when facing a long-term illness, and to live out their days with dignity. [7]

Recent Expansions in Law Aimed to Increase Access to Medical Marijuana to New Yorkers in Health Care Facilities

New York State, it seems, would agree, and has taken steps to assist residents of skilled nursing facilities and other residential health care centers in accessing medical marijuana treatment. For example, the State passed emergency regulations on October 5, 2017 which expanded the rules regarding caregivers for patients utilizing medical marijuana.[8] While the law previously permitted a patient to designate up to two individual “caregivers” — individuals who are authorized to obtain, possess, transport and administer medical marijuana to aid a certified patient in utilizing same — the new regulations permit a residential health care facility (as well as several other types of facilities) to act as a designated caregiver for up to five patients at any given time. A facility may also designate a department, wing or floor, for instance, as a separate “facility” within the meaning of the regulations, or may designate a staff member as a caregiver to certain patients, in order to serve the needs of more than five patients as caregiver(s).[9] In fact, between 2017 and 2018, there were thirteen facilities designated as facility caregivers by the Department of Health.[10] Additionally, a patient residing in a facility may choose to designate a family member as her caregiver, provided that the caregiver meets certain criteria under the law and can attend to the patient’s needs with regard to her medical marijuana treatment.[11] 

Practical and Legal Concerns for Health Care Facilities Supporting Medical Marijuana Use

Unfortunately, while medical marijuana in New York is legal pursuant to state law, federal law still classifies marijuana as a Schedule I narcotic.[12] As most health care facilities receive federal funds through the Medicare and Medicaid programs and are required to remain in strict compliance with federal laws as a condition of same, taking a more active role in the administration of marijuana to residents can expose facilities to a variety of risks.[13] Additionally, health care facilities must maintain and enforce policies which address each aspect of the state’s medical marijuana laws and may face liability for failure to abide by all aspects of the law.[14]

Some residential health care facilities may wish to offer support for residents who seek to utilize medical marijuana treatment without taking on the role of a designated caregiver and the added responsibility and potential risk of possessing, storing and administering marijuana to residents. One such skilled nursing facility implemented a program whereby the facility’s medical staff includes two certified practitioners who assist patients in obtaining certifications for marijuana treatment. The facility does not act as caregiver with respect to residents’ medical marijuana treatment, but instead provides each resident a private lock-box for which she is personally responsible. A resident’s family member(s) may act as caregiver for the resident, and may assist in obtaining, transporting and administering the medical marijuana to the resident at the facility. While the facility assists the resident and must maintain policies governing its medical marijuana program, [15] the resident ultimately bears most of the responsibility for complying with the state’s medical marijuana laws themselves.

Shortfalls of the Compassionate Care Act – Further Steps are Needed to Expand Access for Skilled Nursing Facility Residents

There are certainly numerous areas in which the Compassionate Care Act falls short of enabling all individuals suffering from qualifying conditions who wish to benefit from medical marijuana treatment from accessing same. First and foremost, the classification of medical marijuana as a Schedule I drug has thus far prevented marijuana treatment from being provided to patients through Medicaid or health insurance coverage. Insurance providers are not required under the Public Health Law or New York State Insurance Law to provide coverage for medical marijuana.[16] Skilled nursing facility residents receiving institutional Medicaid benefits, which require that the entirety of the resident’s monthly income, with the exception of a small personal allowance each month, to be remitted to the facility as the resident’s financial contribution, by definition lack the funds needed to cover the out-of-pocket costs of medical marijuana treatment.[17]  Additionally, even the cost of a medical evaluation by a certified practitioner, which may require out-of-pocket payment, may prove unaffordable to a patient who would otherwise qualify for certification. Therefore, medical marijuana treatment may be cost-prohibitive to many elderly patients who may otherwise benefit from its use. 

Lack of access to potential additional caregivers can also serve as a barrier to accessing medical marijuana for elderly patients, some of which could be overcome by incorporating the Department of Health’s suggestions outlined in its 2018 report.[18] Most notably, increasing the number of caregivers for each certified patient could allow greater flexibility for patients’ families to share the responsibility of aiding their loved one in obtaining and utilizing medical marijuana treatment, making it more feasible for the patient to enjoy uninterrupted access to the medication without creating a burden for only two of potentially several involved family members over an extended period of time.

Additionally, by further expanding the pool of potential certified practitioners to include other medical professionals, in a manner deemed appropriate by the Department of Health in consideration of the program’s goals, and increasing education about medical marijuana and its benefits to medical professionals who may become certified practitioners, additional patients may have access to certificate practitioners and be able to obtain certifications and utilize medical marijuana treatment.[19] 

With respect to residents of residential health care facilities, in particular, amending the Compassionate Care Act to automatically empower specific staff members at residential health care facilities to obtain, possess, store and administer medical marijuana to certified patients, as is customary for other types of medications, would eliminate several arbitrary hoops that patients must jump through in order to access medical marijuana treatment and would expand access to more patients in facilities in the future.  Removing marijuana’s Schedule I narcotic designation at the federal level, and including medical marijuana as a covered treatment under Medicaid and private health insurance, thereby making medical marijuana affordable for elderly patients, would have a substantial impact on the ability of skilled nursing facility residents to access medical marijuana and reap the benefits of its treatment in the future.  

Dana Walsh Sivak, Esq. is a senior associate at Cona Elder Law in Melville. Dana concentrates her practice in health care law, including complex Medicaid eligibility issues, guardianships, litigation, HMO/private insurance issues, PRUCOL matters, and Fair Hearings.

[1]  See generally, Pub. Health Law Article 33, Title 5-A.

[2] New York State Department of Health, Medical Use of Marijuana Under the Compassionate Care Act Two-YearReport 2016-2018, 7 (2018) (available at https://www.health.ny.gov/regulations/medical_marijuana/docs/two_year_report_2016-2018.pdf)[hereinafter NYSDOH Two-Year Report].

[3] Id.

[4] Id.

[5] The law initially permitted the use of medical marijuana only for a specific list of severe debilitating or life-threatening qualifying conditions, namely, cancer, HIV/AIDS, amyotrophic lateral sclerosis (ALS/Lou Gehrig’s disease), Parkinson’s disease, multiple sclerosis, damage to the spinal cord with spasticity, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s disease, and was later expanded to include post-traumatic stress disorder (PTSD), pain that degrades health and functional capability where the use of medical marihuana is an alternative to opioid use, substance use disorder, or other conditions as added by the Commissioner of the Department of Health.  Additionally, patients must suffer from one or more of the following conditions where it is clinically associated with, or a complication of, a listed qualifying condition or its treatment: cachexia or wasting syndrome; severe or chronic pain; severe nausea; seizures; severe or persistent muscle spasms; or such conditions as are added by the Commissioner of the Department of Health. See, Pub. Health Law § 3360(7)(a).

[6] See, NYSDOH Two-Year Report, supra note 2, at 6-7. See also, Ran Abuhasira, et al., Epidemiological characteristics, safety and efficacy of medical cannabis in the elderly, 49 Eur. J. Intern. Med. 44-50 (Mar. 2018) (available at https://www.ncbi.nlm.nih.gov/pubmed/29398248).

[7] Mark A. Ware, et al., Cannabis for the Management of Pain: Assessment of Safety Study (COMPASS), 16 The Journal of Pain 12:1233-1242 (Dec. 2015) (available at https://www.ncbi.nlm.nih.gov/pubmed/26385201).

[8] Medical Use of Marihuana (2017) (codified as amended at 10 NYCRR §§ 1004.3(k), 1004.4(b), 1004.22(e), and 1004.23) (available at https://regs.health.ny.gov/sites/default/files/pdf/emergency_regulations/Medical%20Use%20of%20Marihuana.pdf).

[9] Id.; see also, Pub. Health Law § 3363(5).

[10] See, NYSDOH Two-Year Report, supra note 2, at 9.

[11] Pub. Health Law §§ 3360(5) and 3362.

[12] 21 C.F.R. § 1308.11.

[13] See generally, § 1150B of the Social Security Act, established by Section 6703(b)(3) of the Patient Protection and Affordable Care Act of 2010 (codified as amended at 42 U.S.C. § 1302b-25).

[14] See Penal Law §§ 220(6) and 221; see also, 10 NYCRR § 1004.23.

[15] Zachary J. Palace & Daniel A. Reingold, Medical Cannabis in the Skilled Nursing Facility: A Novel Approach to Improving Symptom Management and Quality of Life, 20 J. Am. Med. Dir. Assoc. 1:94-98 (Jan. 2019) (available at https://www.jamda.com/article/S1525-8610(18)30662-5/fulltext).

[16] Pub. Health Law § 3368(2).

[17] See, 18 NYCRR §§ 360-4.6 and 360-4.9.

[18] See, NYSDOH Two-Year Report, supra note 2, at 9, 15-16.

[19] Id.