Corporate and Business

Unlike most other types of employment arrangements involving physicians, physicians acting as a medical director are compensated purely for the performance of administrative services related to patient care services. That is not to say that a medical director does not play a crucial role in the operation of a health care provider. In fact, the New York State Department of Health recommends, or even requires, medical directors be put in place for certain types of providers, and federal law similarly requires medical directors for certain types of services and facilities.

 

Because medical directors are not performing medical services, many physicians feel comfortable entering into medical directorship with little or no written documentation. However, physicians should proceed with caution when undertaking a medical director role. In particular, medical director arrangements are often scrutinized by the Office of the Inspector General (“OIG”) of the U.S. Department of Health and Human Services to determine whether the arrangement is, in reality, being used as a vehicle to provide remuneration to physicians for patient referrals. For this reason, where the contracting provider participates with federal payors and the physician may refer patients to the contracting provider, the physician should enter into a written medical director agreement that is structured to fall within an exception (or safe harbor) to the federal Stark and anti-kickback statutes.

Most often, the exception used under both Stark and anti-kickback laws will be the “personal services” safe harbor. Although slightly different under each statute, some key elements in complying with the “personal services” safe harbor are as follows:

 

  • Written Agreement: The agreement between the physician and the provider should be in writing, with a term of not less than one year. [1]
  • Duties: The agreement should provide for all of the services which the physician is expected to perform.[2]
  • Commercially Reasonable: The services provided by the medical director should be necessary to the provider and not exceed the amount of services required by the provider. This analysis is focused not only on whether the contracting physician’s services in and of themselves are necessary, but also whether there are other medical directors and whether numerous medical directors are performing duplicative services.[3]
  • Compensation: [4]
    • Fair Market Value – The physician should be paid fair market value for the services provided. To this end, it might be helpful to obtain a fair market value analysis, taking into account the geographic location, the experience of the physician, the certification of the physician, and they type of facility. While having such an analysis is not an absolute defense in an investigation, it is useful to demonstrate that fair market value was analyzed and that the remuneration falls within what was believed to be an acceptable range.
    • Hourly Rate – It is recommended that the medical director be paid on an hourly basis, with such hourly rate being paid at the fair market value rate.
    • Cap on Compensation – it is also recommended that the aggregate compensation a physician can earn for his documented hours be capped, to further ensure reasonableness.[5]
  • Documentation: The physician should keep daily time logs of services performed and the time spent on each service. This shows that the physician is performing real work, for which he or she is being paid fair market value, and also can be used to demonstrate that the services being performed are necessary for the facility.

While it is always best to consult with an experienced professional before entering into medical director arrangement, adhering to the criteria set forth above can offer protection for both the physician and the facility.

[1] 42 CFR 1001.952(d)(1): “The agency agreement is set out in writing and signed by the parties.” 42 CFR 1001.952(d)(4): “The term of the agreement is for not less than one year.” 42 U.S.C. 1395nn(e)(3)(A)(i): “the arrangement is set out in writing, signed by the parties, and specifies the services covered by the arrangement.” 42 U.S.C. 1395nn(e)(3)(A)(iv): “the term of the arrangement is for at least 1 year.”

[2] 42 CFR 1001.952(d)(2): “The agency agreement covers all of the services the agent provides to the principal for the term of the agreement and specifies the services to be provided by the agent.” 42 U.S.C. 1395nn(e)(3)(A)(ii): “the arrangement covers all of the services to be provided by the physician.”

[3] 42 U.S.C. 1395nn(e)(3)(A)(iii): “the aggregate services contracted for do not exceed those that are reasonable and necessary for the legitimate business purposes of the arrangement.”

[4] 42 CFR 1001.952(d)(5): “The aggregate compensation paid to the agent over the term of the agreement is set in advance, is consistent with fair market value in arms-length transactions and is not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made in whole or in part under Medicare, Medicaid or other Federal health care programs.” 42 U.S.C. 1395nn(e)(3)(A)(v): “the compensation to be paid over the term of the arrangement is set in advance, does not exceed fair market value, and . . . is not determined in a manner that takes into account the volume or value of any referrals of other business generated between the parties.”

[5] In OIG Advisory Opinion No. 01-17 (2001), the OIG said that even though total aggregate compensation over the contract has not be set in advance, the totality of facts and circumstances in the specific circumstances at hand yield a conclusion that there is no significant increase in risk of fraud and abuse – however, this finding was likely due to the presence of a monthly payment cap. In 2003, in Advisory Opinion 03-8, the OIG found that a proposed arrangement does not qualify for protection under the safe harbor because the aggregate compensation paid under a management agreement would not be set in advance.

In a decision last week that could affect $12 billion that insurers assert is owed by the federal government, the Federal Circuit decided that HHS was not required to pay amounts required by statute because Congress had repealed or suspended those obligations through riders to appropriations bills. In Moda Health Plan, Inc. v. United States, the Federal Circuit rejected one insurer’s claim that it was statutorily and contractually owed close to $210 million under the government risk corridors program.

The Patient Protection and Affordable Care Act (“ACA”) established health benefit exchanges in each state for individuals and small groups to purchase health coverage. Insurers, however, faced significant risk if they offered plans in the exchange, because they lacked reliable data to estimate the cost of providing care for an expanding pool of individuals seeking coverage. To mitigate that risk and discourage insurers from setting higher premiums to offset that risk, the ACA established the risk corridors program.

Under the risk corridors program, participating plans whose costs of coverage exceeded the premiums received would be paid a share of their excess costs by HHS (“payments out”), and plans whose premiums exceeded their costs would pay to HHS a share of their profits (“payments in”). HHS promulgated regulations providing that health plans would receive payments in from HHS or make payments out to HHS in the formulas set forth in the statute. Congress, however, provided in riders to appropriations bills that none of the funds appropriated for HHS in fiscal years 2015 through 2017 could be used for payments under the risk corridors program. The Congressional purpose was to make the risk corridor program budget neutral, so that HHS would not pay out more than it collected under the program. CMS reported that in the three year period of 2014-2016, payments in to HHS fell short of payments out by more than $12 billion. For that reason, HHS paid only prorated portions of the payments out to insurers.

Moda Health Plans sued under the Tucker Act, seeking almost $210 million, constituting the unpaid amounts it claimed it was owed under the risk corridors program under the ACA. Moda argued that the ACA itself obligated HHS to pay insurers the full amount under the risk corridors program, regardless of the amount of payments in, and that HHS breached its contractual agreement to pay the full amount required by the statute. The Federal Circuit rejected both arguments.

The Court agreed with Moda that the ACA obligated the government to pay the full amount of the risk corridors payments, but held that the Congressional appropriations riders effected a suspension of that obligation for each of the relevant years. The Court first held that the statute was mandatory with respect to payments out, and could not be read to require such payments to be budget neutral. Thus, the plain language of the statute created an obligation of the government to pay the full amount for payments out under the risk corridors program.

The Court held, however, that through HHS appropriations riders, Congress repealed or suspended the obligation to make any payments out if they exceeded payments in. Repeals by implication are generally disfavored, but the Court held that the appropriations riders adequately expressed Congress’s intent to suspend payments on the risk corridors program beyond the sum of payments in. Congress clearly indicated its intent to limit the funding of payments out to payments in, thus requiring the risk corridors program to be budget neutral. As a result, no taxpayer funds would be used for the risk corridors payments, and the government would not pay out more than it collected from insurers under the program.

The Federal Circuit also rejected Moda’s claim for HHS’s breach of an implied-in-fact contract. Absent clear indication, legislation and regulation cannot establish the government’s intent to bind itself in a contract. The Court held that the overall scheme of the risk corridors program lacked the trappings of a contractual arrangement.

The Moda Health Plan decision may affect billions of dollars that insurers claim they are owed by the federal government. The Supreme Court may be the next stop for the risk corridors program issues decide by the Federal Circuit, and the Justices may have yet another chance to examine the Affordable Care Act and Congressional intent.

 

Earlier this month the New York State Department of Health released the first results of its recently adopted Medicaid redesign efforts, the Delivery System Reform Incentive Payment (“DSRIP”), in four core areas: (1) metric performance, (2) success of projects, (3) total Medicaid spending and (4) managed care expenditures.   The passing scores stem from the collaborative efforts of the Performing Provider Systems comprised of New York hospitals, providers and other key stakeholders.

In April 2014, New York State and the federal government agreed to a DSRIP framework, pumping approximately $8 billion in state health care savings to target Medicaid reforms. The goal of the DSRIP waiver is to reduce patient hospital usage by 25% over 5 years while improving patient-centered care. The program includes $6.42 billion for DSRIP Planning Grants, Provider Incentive Payments, and administrative costs.

The Centers for Medicaid and Medicare Services did find, however, that New York still needs to show improvement in certain areas, including preventable hospital readmissions and emergency room visits as well as access to timely appointments.

Speaking on the results, Donna Frescatore, the New York State Medicaid Director, said “[a] passing grade on all four of the milestones proves that we are making monumental progress toward improving care for millions of New Yorkers….While we are on a clear path to success, our work is far from over. In the months and years ahead, we will shift our focus toward improving performance metrics and health outcomes as we work to change the culture of health care.”

Even though New York received passing scores on its first report card, the state must continue to demonstrate improvement going forward to avoid financial penalties associated with failing to meet the requisite benchmarks.  It will be interesting to see if New York meets the 25% hospital usage reduction by March 31, 2020, the date the DSRIP waiver ends.

The full report can be found here.

As we have discussed in an earlier blog post, the federal administrative agencies have been placing greater emphasis on being more transparent and promoting “interoperability”.

As such, on April 24, 2018, the Centers for Medicare & Medicaid Services (“CMS”) proposed changes to its Inpatient Prospective Payment System and Long-Term Care Hospital Prospective Payment System to promote better access to patient electronic health information and increase pricing transparency. For example, while hospitals are already required to make pricing information publicly available, the proposed rules impose more stringent guidelines, including a requirement that hospitals post pricing information on the internet. Seema Verma, the CMS Administrator, stated “[t]oday’s proposed rule demonstrates our commitment to patient access to high quality care while removing outdated and redundant regulations on providers. We envision a system that rewards value over volume and where patients reap the benefits through more choices and better outcomes.”

Critical to the proposed changes is a complete overhaul of the Medicare and Medicaid Electronic Health Records Incentive Programs, which is commonly known as the “Meaningful Use” program, by executing on the following core principles:

  1. Having a program that is more flexible and less burdensome;
  2. Placing greater emphasis and encouraging the exchange of health information between providers and patients; and
  3. Incentivizing providers to streamline the process for patients to be able to access their medical records electronically.

A rebranding would not be complete without, of course, a name change; in fact, CMS has proposed changing the “Meaningful Use” program to “Promoting Interoperability”. Interoperability, which means “the ability of computer systems or software to exchange and make use of information,” has been missing from the healthcare industry as technology has been advancing at an unprecedented rate. In a system where healthcare is central to our lives, it appears the final goal is to have a system where patients could have access to a virtual portal where all of their health information from various providers would be available, thus promoting patient-centered care where providers have greater insight into their patient’s medical history—invariably resulting in more thoughtful care. It is refreshing to see government, which is commonly known to always be a step behind private industry, taking the initiative to modernize its infrastructure. At this point in history a patient should be able to obtain his health information on a whim via his mobile device or even see a new physician while not having to deal with the administrative nightmares associated therewith.

While it is unclear if the final goal of “interoperability” will be reached, CMS’ proposed changes are definitely an encouraging step forward.

For more information, please see the CMS fact sheet.

 

 

New York’s FY 2019 Executive Budget includes new legislation aimed at combatting sexual harassment in the workplace.  According to the Governor, the legislation purports to be the “most comprehensive anti-sexual harassment protections in the nation….”  Here are the highlights:

  • Effective Immediately:  The new legislation prohibits sexual harassment of “non-employees in the employer’s workplace,” including “contractors, subcontractors, vendors, consultants or other persons providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace. July 11, 2018:  Any settlement, agreement or other resolution directly relating to sexual harassment claims may not include language that prevents the disclosure of the underlying facts unless the plaintiff (1) has been given 21 days to consider the confidentiality/non-disclosure provision and 7 days to revoke the agreement after signing.
  • Effective July 11, 2018:  Mandatory arbitration agreements with respect to sexual harassment claims will no longer be enforceable and shall be deemed null and void.  Worth noting, mandatory arbitration agreements that include sexual harassment disputes remain enforceable with respect to all other claims.
  • Effective October 9, 2018:  Employers must establish a sexual harassment prevention policy and conduct annual interactive sexual harassment training.  The Department of Labor has been charged with consulting with the Division of Human Rights and producing a model training program.  The new rules also mandate written sexual harassment policies that include a standard complaint form, examples of prohibited conduct, and a procedure for timely investigations.

Going Forward . . . Watch for information on the Department of Labor’s model sexual harassment prevention policy and training program as well as Farrell Fritz’s Master Class for those responsible for sexual harassment training initiatives!

If you have questions concerning the development or implementation of these new employer obligations, contact Domenique Camacho Moran, Farrell Fritz’s Labor and Employment Practice Group at 516.227.0626 or dmoran@FarrellFritz.com.

Filefax, Inc. (“Filefax”), an Illinois company that intimately handled sensitive Personal Health Information (“PHI”), paid $100,000 to the Department of Health and Human Services (“HHS”) to settle potential violations of the Health Insurance Portability and Accountability Act (“HIPAA”). The payment stemmed from, when still in business, Filefax allegedly improperly disclosing the PHI of approximately 2,150 people when not properly securing such information in an unlocked truck on Filefax property, as well as granting access to PHI to people who should not have been granted access. Pursuant to the Resolution Agreement, the court appointed receiver for Filefax did not admit liability on behalf of Filefax but, however, did agree to enter into a Corrective Action Plan to help mitigate potential exposure.

On its face, the Filefax case may appear to be just like other settlements with HHS resulting from a HIPAA violation, but this case is different for one critical reason—Filefax is no longer in business!

Yes, Filefax, a company no longer operating and which was involuntarily dissolved on August 11, 2017, settled these potential violations of HIPAA, making it clear that, just because the doors close, HIPAA still applies. Roger Severino, director of the Office of Civil Rights (“OCR”), the HHS enforcement arm of HIPAA, stated “[c]overed entities and business associates need to be aware that OCR is committed to enforcing HIPAA regardless of whether a covered entity is opening its doors or closing them. HIPAA still applies.”

Business owners, especially those that handle PHI on a day-to-day basis, must continue to take seriously the rules and guidelines HHS sets forth with respect to HIPAA and are on notice that penalties may still apply even if you are no longer conducting business. The Filefax case should serve as a stark warning to all business owners that you cannot escape liability and/or penalties under HIPAA by closing your doors.

Spurred in large part by the changing landscape of medicine, more and more medical professionals are seeking to become a part of something bigger. Often, they are under the misassumption that they can set up and run their practice like any other business – until New York State’s strong prohibition of the corporate practice of medicine comes knocking on their door.

 

According to a 1998 report from a meeting of the New York State Board of Regents, “[p]rofessional services can be offered only by a licensed person or an organization otherwise authorized by law.” Under New York State law, this means that professional services can only be offered within a professional service corporation (“PC”) or a professional limited liability company (“PLLC”). Article 15 of the New York Business Corporation Law permits the formation of a professional service corporation only if all shareholders (1) are licensees of one profession (Section 1503) and (2) practice only such profession (Section 1506). The prohibition of the corporate practice of medicine extends beyond medical doctors to include an array of licensed professionals, such as dentists, dental hygienists, optometrists, chiropractors, podiatrists, pharmacy, nursing, ophthalmic dispensing, speech-language pathology, audiology, respiratory therapy (and technology), occupational therapists (and assistants) and physical therapists (and assistants).

One area that is a common pitfall for professionals is the sharing of profits or “fee-splitting.” The prohibition of the corporate practice of medicine, codified in 8 CRR-NY 29.1, prevents professionals from directly or indirectly sharing profits or splitting fees with non-licensed professionals.   Most often this comes up in an arrangement where the PC or PLLC employs a management services organization to run its company in exchange for a percentage of revenue.[1] Such an arrangement runs afoul of the prohibition and, in order to comply, all services that the PC or PLLC receives should be paid at fair market value.

 

A violation of the prohibition on the corporate practice of medicine can result in prosecution, fines and penalties. As articulated by Eric T. Schneiderman, Attorney General of the State of New York, in In the Matter of Aspen Dental Management, Inc. (Assurance No: 15-103), the theory underlying the prohibition is that “medical and dental decisions should be made by licensed providers using their best clinical judgment, and should not be influenced by management companies’ shared interest in potential profits.” In Aspen Dental, the management organization – which was not a professional organization – was required to restructure so that it no longer received percentage of gross profit, no longer employed clinical staff, and no longer had discretion over how the individual offices were run. Moreover, Aspen Dental was required to pay a $450,000 civil penalty and pay an independent monitor to oversee the implementation of the settlement for three years.

 

 

It remains to be seen what, if any, changes are made to the prohibition on the corporate practice of medicine in New York as the world shifts to value based reimbursement; however, for the time being professionals should remain cautious, not only when structuring their corporate entities but also when engaging with outside service providers.

 

[1] Note also that for some providers, fee splitting may result in STARK and anti-kickback violations, among others.

2018 Government Shutdown

Just as everyday Americans were preparing their lives for a second United States government shutdown since the turn of the New Year, President Donald J. Trump signed into law a bipartisan (well, as bipartisan as it gets with this Congress) budget deal, focusing on some of the core issues facing us today and, in particular, those directly impacting healthcare.

While pundits, analysts and deficit hawks will argue back and forth about the excessive spending and items that Congress and the administration missed on this deal, one issue that Congress finally started allocating resources to and which hits home for so many people is the opioid crisis—allocating $6 billion to help combat this tragic public health emergency.  Enough is enough when more than 110 babies have tragically died since 2010 due to either being born dependent on opioids or for lack of care from their parents.

Some other important items, among others, in the budget deal include:

  • Re-authorizing community health centers, which serve over 25 million people, for an additional 2 years with approximately $7 billion in funding;
  • Allocating $4 billion to help Veterans Administration hospitals provide the care that our veterans rightfully deserve; and
  • Extending the Children’s Health Insurance Program (CHIP) for 10 years.

Just after reaching the deal, House Speaker Paul Ryan said “[u]ltimately, neither side got everything it wanted in this agreement, but we reached a bipartisan compromise that puts the safety and well-being of the American people first.” Even though it took a second, but brief, government shutdown and many continuing resolutions to light a fire under Congress to pass a budget, the budget they passed is an important step forward for our Country, especially when it comes to improving our healthcare system.

As discussed in our January 5th blog post, the Cole Memorandum was rescinded by Attorney General Jeff Sessions on January 4th of this year.   The Cole Memorandum had served to formally announce the DOJ’s policy that it would not interfere with medicinal marijuana legalized under state law, despite marijuana’s continued illegality for all purposes under federal law. With the rescission of the Cole Memorandum, federal prosecutors are now free to determine to what extent they will enforce federal law against the state-legalized medical marijuana industry.

However, the effect of the change in policy reaches further than to just the cultivators, manufacturers and distributors of medicinal marijuana products. Pursuant to the Controlled Substances Act, not only is it illegal to manufacture, distribute or dispense marijuana for any purpose – but it is also illegal to aid someone in doing so. Therefore, the DOJ is now free to prosecute anyone “aiding” in a medical marijuana business, for example, giving legal advice.

Probably of greater practical concern to attorneys than criminal prosecution is the tremendous amount of uncertainty as to how the change in policy will impact the ethics surrounding the representation of medical marijuana clients. Most, if not all, states have ethical rules that specifically prohibit a lawyer from assisting a client in illegal conduct. These rules do not distinguish between conduct that is illegal under federal law but expressly permitted under state law.

New York Rule of Professional Conduct 1.2 provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, except that the lawyer may discuss the legal consequences of any proposed course of conduct with a client.” While it is generally undisputed that an attorney may advise a client about what state law provides – for example, filing requirements – an attorney arguably would be violating the Rules of Professional Conduct by, for example, assisting a client in negotiating a marijuana distribution contract.

Ethics boards in some states, including New York, have used the Cole Memorandum as the decisive factor to conclude that providing legal advice related to legalized medical marijuana businesses does not violate ethics rules. To a lesser extent, some states, including New York, have also relied on the theory that state ethics rules are intended to promote state policy – and by approval of the state medicinal marijuana law, a state has expressed its state policy on the matter, yielding no ethical violation.

It remains to be seen what impact the rescission of the Cole Memorandum will have on the ethics opinions of various states that are based heavily upon the prior policy of federal non-enforcement. For now, we can still find comfort in the Rohrabacher-Blumenauer amendment to the federal budget, which currently continues in effect until February 8 and maintains that federal funds (including those allocated to the DOJ) cannot be used to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”

Despite numerous states having legalized medical marijuana, and a handful of others having legalized marijuana for recreational use, it still remains impossible to obtain a U.S. federal trademark registration for marijuana products or related goods or services.

The U.S. Patent and Trademark Office (USPTO) is the federal agency charged with granting U.S. patents and registering trademarks. The USPTO registers trademarks based on the commerce clause of the Constitution (Article I, Section 8, Clause 3) and registration is governed under various rules of practice and federal statutes.

The USPTO Trademark Manual of Examining Procedure (TMEP) Section 907 explains that under Trademark Rule of Practice 2.69, “[u]se of a mark in commerce must be lawful use to be the basis for federal registration of the mark. . . . Generally, the USPTO presumes that an applicant’s use of the mark in commerce is lawful and does not inquire whether such use is lawful unless the record or other evidence shows a clear violation of law, such as the sale or transportation of a controlled substance.”

As we’ve discussed in previous blog posts, marijuana, whether used for medicinal or recreational purposes, is classified as a Schedule 1 drug under the Controlled Substances Act (CSA). The CSA prohibits the manufacturing, distributing, dispensing or possession of certain controlled substances, including marijuana and marijuana-based products and services. In addition, the CSA makes it unlawful to sell, offer for sale or use any facility of interstate commerce to transport illegal substances, including marijuana.

As a result of the CSA, U.S. trademark applications related to marijuana or marijuana related goods and services will be refused registration under TMEP Section 907. TMEP Section 907 further provides that “[r]egardless of state law, the federal law provides no exception to the above-referenced provisions for marijuana for ‘medical use.’” Recent decisions issued by the USPTO continue to deny the federal registration of trademarks relating to marijuana and related goods and services despite the legality of such products and services under state law.

Trademarks that reference marijuana but that are used in commerce on lawful products, such as clothing, may be registered with the USPTO. For example, the trademark “MARIJUANAMAN” was registered by the USPTO as the mark will be used in connection with books about cannabis. Similarly, the trademark THE MARIJUANA COMPANY was approved in connection with the mark’s use on clothing.

Since federal registration is not permitted for trademarks that cover the sale or transportation of marijuana, such trademark applicants must rely on state trademark filings for the registration of their trademarks. This has become an important issue since so many states have now enacted legislation legalizing the medical – and in some cases, recreational – use of marijuana.

State trademark registrations are more limited in scope than federal trademark registrations as they don’t offer national protection or afford a registrant a presumption of ownership and validity of the underlying trademark on a national level. They are relatively inexpensive to obtain, however, and can afford the registrant at least certain benefits under state law. States like Washington, Oregon, Nevada and Colorado already allow for the registration of cannabis-related marks.

Nevada, for example, enacted legislation governing the use of names, logos, signs and advertisements by medical marijuana establishments. Pursuant to NAC 453A.402, any such names, logos, signs and advertisements must be approved by the Administrator of the Division of Public and Behavioral Health. In addition, Nevada has established guidelines which provide design guidelines for medical marijuana establishments. The guidelines specify, among other things, that the overall appearance of the mark or advertisement must not be appealing to minors; not contain cartoon-like figures or illustrations; not contain humor and must avoid script, decorative or gimmicky fonts. The use of of marijuana slang in the mark or advertisement, such as pot or weed, is also strictly prohibited.

Most recently, as of January 1st, 2018, customers may also register cannabis-related marks with the California Secretary of State. In order to register the mark California requires that (1) the mark be lawfully in use in commerce within California; and (2) the mark match the classification of goods and services adopted by the USPTO. To be lawfully using the mark in commerce within California requires that the registrant be licensed by California to provide the goods and services for which he or she is seeking protection and that such goods and services have already been sold to the public. Unlike registration of a trademark at a federal level, California does not have an intent-to-use trademark application. As such, the mark must be in use prior to registering the mark with the Secretary of State.

New York has not yet enacted any special legislation or guidelines relating to the registration of marijuana-related trademarks with the New York Secretary of State. That may soon change, however, as more and more states start to allow state registration of marks relating to marijuana and marijuana-related goods and services.