Just before dawn, as the Albuquerque sky filled the house with thin, pale blue light, 16-year-old Aurra Gardner took the small handgun out from behind the bed in her mother’s bedroom. Kerianne Gardner, Aurra’s mother, sat in the living room, typing an email, listening idly as her other daughters tied their shoes and packed their lunches. She heard what sounded like a door slam and assumed it was Aurra’s cello case falling over. She walked down the hall and tried the door of the bedroom. It was locked.
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.
During a New Mexico Department of Health public hearing earlier this month that allowed public input into proposed rule changes to the state’s Medical Cannabis Program, a major player in the industry raised concerns with some patients.
Willie Ford, managing director of the medical cannabis consulting company Reynold Greenleaf and Associates, told DOH officials he wanted more state oversight of patients who grow their own cannabis.
“PPLs need more regulation, they need more oversight for public safety issues,” Ford said. “These are significant and serious issues that affect the general public and their safety.”
PPLs, or Personal Production Licenses, allow patients who qualify to grow up to four plants for their own use. He voice concern with a proposed rule change that would allow PPL holders to take their harvested cannabis to licensed manufacturers to produce extracts and concentrates. Four plants, Ford said, could equal about 20 pounds a year per PPL.
Ford’s comments, and the online rebuttals from PPL patients that came after, highlight an issue that DOH will likely be forced to address, especially before New Mexico legalizes cannabis for recreational use: whether PPL patients should be regulated similar to Licensed Non-Profit Producers who sell products through their dispensaries.
Josh McCurdy with the New Mexico Medical Cannabis Patients Advocate Alliance told NM Political Report that he didn’t appreciate the suggestion that PPL patients are doing anything other than growing their own medicine, often in places where dispensaries are far and few between.
“We need more competition,” McCurdy, who lives and grows his own cannabis in Ruidoso, said. “That’s the reason it’s $10 a gram in Albuquerque and it goes from $12 to $15 in rural areas.”
He estimated his homegrown cannabis costs about $5 to $6 a gram to grow.
McCurdy disagreed with Ford’s claim that four plants harvested around 4 to five times a year could yield about 20 pounds.
“I’ve been by a few hundred PPL grows in this state and 99 percent of them are struggling just to yield a couple of ounces every four months,” McCurdy said.
McCurdy dismissed a common sentiment he said he’s heard from producers—that home growers contribute to illegal cannabis sales.
“The producers have put it in a way, where they like to do some fear mongering and act like the PPLs are the illicit black market,” McCurdy said.
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.
A high-profile New Mexico medical cannabis producer still maintains a recent change in the wording of the state’s medical cannabis law means non-residents should be able to become patients. Brian Egolf, an attorney for medical cannabis producer Ultra Health, sent a six-page letter arguing that point to Medical Cannabis Program director Kenny Vigil on Wednesday. Egolf is also New Mexico’s Speaker of the House. In the letter, Egolf outlined five reasons why the state should allow non-residents to become patients in New Mexico’s medical cannabis program, including a straightforward reading of the law, the fact that other state programs include non-residents, that state law prohibits transporting cannabis across state lines and that the Department of Health cannot override state law. A DOH spokesman said the department received the letter late in the day on Wednesday and was still reviewing it at publication time.
The New Mexico Department of Public Health has made it clear—only New Mexico residents can enroll in the state’s Medical Cannabis Program. “Persons who are not residents of New Mexico cannot be enrolled in the NM Medical Cannabis Program,” the department said in a statement to NM Political Report Friday. The statement came after the CEO of a prominent medical cannabis producer said he believes a change in the law allows for out-of-state patients to enroll in New Mexico’s Medical Cannabis Program. Duke Rodriguez, president and CEO of Ultra Health, previously told NM Political Report he bought radio ads in the southeast part of New Mexico to inform those in west Texas they can now apply to become a medical cannabis patient. Cannabis is illegal in Texas for all uses, including medical.
A recent expansion of qualifying conditions for medical cannabis through rule changes will likely result in a higher number of patients in New Mexico. But a law that goes into effect on Friday could also result in a new pool of patients—non-residents of New Mexico.
Some changes to the law include protections from discrimination for patients, reciprocity with other states’ medical cannabis programs and an extended life span of medical cannabis cards. But perhaps the most significant and, until now, overlooked change to the law is who qualifies for medical cannabis cards. As of Friday, the definition of a “qualified patient” will no longer include the term “resident of New Mexico.” That term was replaced with “person.”
Duke Rodriguez, the president and CEO of medical cannabis producer Ultra Health, noticed the change in language and launched a campaign targeted towards residents of Texas who live close to New Mexico.
The New Mexico Department of Health (DOH) has until August to decide how much medical cannabis producers are allowed to grow at any given time. Until recently, Licensed Non-Profit Producers (LNPP) could have up to 450 plants, but in March the state issued an emergency rule allowing producers to grow five times that amount—or up to 2,500 plants—after a drawn-out lawsuit. Public records obtained by NM Political Report reveal some of the discussions between producers, patients and Gov. Michelle Lujan Grisham’s office during the days leading up to the emergency rule. Many of those conversations were redacted due to executive and attorney-client privilege. But, the documents still shed light on the decision by DOH Secretary Kathyleen Kunkel to temporarily increase the plant counts.