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.
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.
For years proponents of legalized industrial hemp have praised the plant for its reportedly numerous benefits—including the ability to bolster the state’s economy. With both state and federal law opening the doors for growers and manufacturers, some New Mexicans are well on their way to start growing the non-psychoactive relative of cannabis. But, some of those new hemp farmers say it could be at least a year before the state sees a significant hemp market. Since legally growing and cultivating hemp is still new to the state, current licensed growers who spoke with NM Political Report can’t say for sure when their crops will be ready or how well they will perform in the state. But all of them said they expect hemp to be a viable crop within several years.
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.
The scramble to reach 2,500 has begun. More than a quarter of medical cannabis producers in New Mexico have already applied to increase their grow operations to 2,500 plants since the state announced, through an emergency rule change, it would allow plant increases a week ago. Of the 35 registered Licensed Non-Profit Producers (LNPP), 12 applied to increase the number of their plants and nine said they they intend to grow the maximum number of plants. That could mean 26,000 plants across the state, not counting the plants grown by patients who grow their own cannabis with a Personal Production License. That’s about double what the Department of Health reported in production at the end of 2018.