Dueling press releases over medical cannabis fees show the continuing, contentious relationship between a medical cannabis producer and the New Mexico Department of Health. The producer, Ultra Health, has long argued, often in court, that state mandated plant limits for producers should be higher.
In a press release issued last week, Ultra Health argued that even with the latest plant increase to 1,750, the state’s fee structure discourages producers from growing the maximum amount of plants. Making it harder for producers to grow the maximum amount of plants, Ultra Health argued, will impact patients.
“Under the new fee schedule, it will be impossible for all producers to meet the 1,750 maximum and cultivate an adequate supply of medicine for patients,” the Ultra Health release read.
The DOH recently changed fees for producers to a graduated structure. The cost per plant significantly increases for producers after 1,000. According to Ultra Health’s data, only 12 of the 34 licensed producers paid $180,000 for the maximum 1,750 plants.
A potential new party to a lawsuit filed against the New Mexico Department of Health could further complicate the issue of how much medical cannabis is enough for the state.
Medical cannabis producer R. Greenleaf has asked a state judge to allow the company to intervene in a lawsuit filed by three other medical cannabis companies that argue the state’s mandated limit on cannabis plants should be raised to better meet demands. R. Greenleaf, through its lawyer, argued that the three producers calling for a higher plant limit are not representative of the rest of the medical cannabis industry. Earlier this year, R. Greenleaf submitted its own study to the DOH and argued that producers need less than 1,500 plants to adequately supply patients with cannabis.
The lawsuit, filed by producers Ultra Health, Sacred Garden and G & G Genetics, argues that the most recent plant limit increase did not go far enough and that the DOH did not use reliable data to reach the current plant limit of 1,750. The lawsuit says the state did not account for things like additional qualifying conditions and a recent court ruling that allows non-residents of New Mexico to become medical cannabis patients.
“The New Mexico Department of Health and Secretary [Kathyleen] Kunkel have promulgated an administrative rule that violates a valid, un-appealed order from the First Judicial District Court,” the initial lawsuit read. “The rule also contradicts the Lynn and Erin Compassionate Use Act and defeats the purpose and fulfillment of that statute.”
The DOH has not filed a response yet, but the request by R. Greenleaf to intervene implies a disagreement amongst producers about whether New Mexico has, or is headed towards a shortage of medical cannabis.
A judge reaffirmed his ruling that out-of-state residents are eligible for medical cannabis cards on Monday. State District Court Judge Bryan Biedscheid again ordered the state Department of Health to provide medical cannabis cards to those non-New Mexico residents who qualify for the state’s program. The state had previously provided cards to three non-residents. But it had not given cards to other non-residents not part of the initial court filing. Monday, the judge also ordered DOH to begin giving cards to other non-residents who qualify for the program.
The issue of whether non-residents of New Mexico can enroll in the state’s Medical Cannabis Program is still not settled. A flurry of three motions were filed in three days in a civil case over whether non-New Mexico residents are eligible for state medical cannabis cards. The New Mexico Department of Health filed a motion last week asking a state judge to reconsider his decision to compel the state to issue medical cannabis cards to anyone with a qualifying condition, regardless of where they live. On the same day, Gov. Michelle Lujan Grisham and DOH jointly filed a motion asking a judge to stay, or hold off on, his order for DOH to issue cards to non-residents. Then, on Monday, the three petitioners who originally argued they were due medical cannabis cards even though they live outside New Mexico filed a motion calling for the program’s director to be held in contempt of court.
The court case started in July when two Texas residents and an Arizona resident who is the CEO and president of a New Mexico medical cannabis asked a judge to force the state to issue the three petitioners medical cards.
Out of state residents who qualify as a medical cannabis patient are now eligible to get a New Mexico medical cannabis card.
A state district judge ruled Thursday that the New Mexico Department of Health must issue medical cannabis cards to qualified patients, regardless of where they live full-time. Thursday’s hearing was the latest in a back-and-forth between a medical cannabis producer and state officials—including Gov. Michelle Lujan Grisham—over whether a recent change in law opened the state’s program to non-residents.
Though the judge ruled that DOH would have to start issuing cards to non-residents, the governor’s office said they aren’t giving up.
Tripp Stelnicki, a spokesman for Lujan Grisham, said the governor’s office plans to appeal the decision, but not before he took a shot at one of the petitioners in the case, Duke Rodriguez, who is an Arizona resident and also the president and CEO of the prominent medical cannabis producer Ultra Health. “We remain of the opinion that New Mexico’s Medical Cannabis Program should not be bulldozed by an out-of-state litigant operating with his own financial interests at heart rather than those of the state’s medical program or of the many New Mexicans who depend upon it,” Stelnicki said in a statement. “Today’s decision contradicts both the intent of the legislative sponsor and the interpretation of the New Mexico Department of Health, and the state plans to appeal the decision.”
Rodriguez declined to comment on what he called a “personal attack,” but that he’s ultimately happy with the decision
“There was a lot of good testimonies from both sides today, but I think the judge did a superb job of refining the issues down to one core issue—that if you were to remove the word cannabis from the discussion this becomes an issue of treating it like any other medical care,” Rodriguez said.
Rodriguez is one of the three petitioners, all of whom reside primarily in other states, who asked the court to compel DOH to issue cards to non-residents. DOH did not officially deny the applications from the three petitioners, but the department placed their applications on hold until they could show a valid New Mexico identification card address.
David Morgan, a spokesman for DOH, said the department hasn’t determined whether they will start approving applications that come from out of state residents.
“We are considering how to proceed given the judge’s ruling and the fact that an appeal is forthcoming,” Morgan said.
If DOH does start issuing cards to non-residents, the next question is whether the state can adequately supply patients with enough cannabis.
Plant counts for producers has long been an issue, specifically involving Rodriguez and DOH.
For much of the Medical Cannabis Program’s existence, producers were only allowed to have 450 plants at any given time.
A state district court judge on Monday ordered the state’s Medical Cannabis Program to start issuing medical cannabis cards to individuals who qualify, regardless of where they live.
The question of whether non-residents of New Mexico could become medical cannabis patients started when major changes to the state’s medical cannabis law went into effect. One minor word replacement drastically changed who could become a patient, argued Duke Rodriguez, president and CEO of medical cannabis producer Ultra Health. Before July 2019, the law stated that qualified patients must be a resident of New Mexico. Now, the law defines a qualified patient as a “person.” Rodriguez’s company bought both internet and radio ads promoting the change. But the Department of Health, which oversees the Medical Cannabis Program, along with the governor and at least one legislator, argued the intention of the law was never to open the program up to non-residents.
Now, barring a compelling argument from DOH, the state could be forced to expand eligibility to anyone from across the country.
The law is clear
In his ruling Monday morning, Santa Fe district Judge Bryan Biedscheid wrote that the law is clear.
Three people, who are not residents of New Mexico, are asking a state district judge to compel the New Mexico Department of Health to allow them to receive New Mexico medical cannabis cards.
The court filing is the latest in a back-and-forth between New Mexico medical cannabis producer Ultra Health and DOH. While Ultra Health is not one of the petitioners, the companies’ president and CEO Duke Rodriguez is one of the three seeking a New Mexico card.
Rodriguez, a resident of Arizona, and two Texas residents argue that state law allows them access to a New Mexico medical cannabis card and that DOH cannot deny access to the program based on non-residency alone.
“As of the date of this filing, the Department of Health’s Medical Cannabis Program has refused to issue registry identification cards to eligible qualified patients, and in so doing it has failed to perform a ministerial non-discretionary duty,” the court filing states. The issue goes back to a bill passed in the 2019 legislative session, and later signed by Gov. Michelle Lujan Grisham, which made sweeping changes to the state’s medical cannabis law. One change was in the definition of “qualified patient.” Prior to the changes this year, the law defined a qualified patient as a “resident of New Mexico.” Now, it simply defines a qualified patient as a “person.”
Both Sen. Jerry Ortiz y Pino, D-Albuquerque, the bill’s sponsor, and Lujan Grisham’s office told NM Political Report that the intention of the wording change was to allow for reciprocity with other states with medical cannabis programs. The new law also has a section outlining reciprocity and gives DOH until next year to come up with rules regarding that.
But the three petitioners argue that the law change would accommodate those in the state for long work assignments, college students or those who spend long periods of time in the state, but do not qualify as a resident. Rodriguez falls in that last category.
The New Mexico Department of Health could face a legal challenge from one of its most prominent critics, who also runs a high profile medical cannabis dispensary.
Duke Rodriguez, president and CEO of New Mexico medical cannabis company Ultra Health, told NM Political Report that DOH “effectively denied” his application to become a medical cannabis patient in New Mexico.
Rodriguez added the qualifier “effectively” because DOH did not officially deny his application, but did ask for more information. His application is officially on hold until he provides more documentation.
“We have checked the documents you sent us and two items are needed,” a letter from DOH read. The two items missing were a valid New Mexico photo ID and a New Mexico address on his patient information form.
The “effective” denial is the latest in a back-and-forth between the department and Rodriguez regarding whether or not non-residents of New Mexico can become a medical cannabis patient in New Mexico.
In June, days before a change to the state’s medical cannabis law went into effect, Ultra Health bought radio ad space in southeastern New Mexico notifying listeners that New Mexico changed its law to allow non-residents the chance to become a medical cannabis patient. A bill signed by Gov. Michelle Lujan Grisham in March, which made sweeping changes to the medical cannabis law, replaced the words “resident of New Mexico” with the word “person” in the definition of “qualified patient.” The bill’s sponsor, Sen. Gerald Ortiz y Pino, D-Albuquerque, said the change was tied to a section that outlined regulations on reciprocity for other states with medical cannabis programs. The law changes allow for medical cannabis patients from other states to use their respective cards to obtain medical cannabis in New Mexico.
The New Mexico Department of Health on Friday heard public testimony from medical cannabis patients, patient advocates and cannabis producers about proposed changes to the Medical Cannabis Program. More than 30 people shared their thoughts about a new proposed plant limit, increased producer fees and extending the life of patients’ medical cannabis cards.
While almost all of the speakers addressed the specific rule changes, many also brought up a barrage of other issues like oversight of those who hold a Personal Production License and grow their own cannabis, opening the licensure for more producers and more testing of cannabis for contaminants or pesticides.
The divergence from issues published in the proposed rule change seemed to show that some in the medical cannabis community don’t feel like they are being heard by the Department of Health.
Former Department of Health chief records officer Daniel Jacobs told NM Political Report that previous department leadership is partly to blame. Jacobs retired from DOH shortly after Gov. Michelle Lujan Grisham took office. He said throughout the eight years of Susana Martinez’s time as governor, the Medical Cannabis Program and DOH shut itself off from the public.
“For the last nine years we’ve been under an administration of exclusion,” Jacobs said. “We [now] have a governor who is about inclusion and she’s going to move the state forward and the program forward to benefit everybody, not just a select few.”
Jacobs said he was recruited to work in the department by then-cabinet secretary Lujan Grisham under then-Gov. Bill Richardson.
Medical Cannabis Program Director Kenny Vigil said DOH and Medical Cannabis Program staff hear from patients about twice a year when the board meets to discuss adding qualifying conditions to the program.
“One of the things we can certainly do better at is improving dialogue with patients,” Vigil said.
Since Gov. Michelle Lujan Grisham announced a task force to study possible cannabis legalization measures last month, some in the medical cannabis community expressed concerns about proper representation.
The Cannabis Legalization Working Group, the governor’s office said, will work this year and send their recommendations to Lujan Grisham before next year’s 30-day legislative session. Lujan Grisham announced earlier this year that she would add legalizing cannabis for adult recreational use to the call next year. In even numbered years, all legislation related to budgetary matters are considered “germane”, but the governor can give permission for legislators to discuss other issues.
Some medical cannabis patients and patient advocates have long warned lawmakers of passing legalization proposals that might harm the medical cannabis program. Now, at least one patient and even medical cannabis producers are scratching their heads wondering why the Cannabis Legalization Working Group does not include actual patients.
Patients want a seat at the table
Ginger Grider is a medical cannabis patient and works with the New Mexico Medical Cannabis Patients Advocate Alliance. Grider, who lives in Portales, said rural parts of the state regularly see shortages or outages in local dispensaries.