March 2, 2020

Pending cannabis card requests denied after law change

It seems a “typographic error” is to blame for confusion among some who tried to enroll in the state’s Medical Cannabis Program. 

But besides an incorrect date, the letters themselves also added to the confusion for some who sought to become medical cannabis patients. The program sent a number of denial letters to potential patients who failed to provide proof of New Mexico residency. That’s because their applications were not processed in time.  

Last fall a state district court judge ordered the program to issue patient cards to those who had an approved qualified condition, regardless of whether or not they live in New Mexico. In less than six months, more than 600 people from outside New Mexico managed to get medical cannabis patient cards before Gov. Michelle Lujan Grisham signed a law which specifies the program is only for New Mexico residents.

But two patients who reached out to NM Political Report said they were confused by the date on a letter requesting proof of residency sent by the program.   

“Our agency cannot process your application until we have received a New Mexico driver’s license or a New Mexico identification card in your name and a New Mexico mailing address,” the letters read. 

But the two letters NM Political Report reviewed were dated January 20, 2020, about a month before Lujan Grisham signed the law change.

Dr. Dominick Zurlo, the Medical Cannabis Program’s director, said the date was a typo. 

“We had written a letter after the governor signed the bill and we just had an unfortunate typographic error and we didn’t realize it until the first batch of letters had gone out,” Zurlo said. 

He added that he is not sure how many erroneous letters were sent out, but that the issue was fixed. 

The bill that was signed into law also had an emergency clause, meaning the law went into effect as soon as the governor signed it. In many cases, bills have an effective date or some other specification about when the bill becomes law. Many laws go into effect on July 1 the same year they’re passed. Lujan Grisham signed the bill on Feb. 20, the last day of the legislative session. 

Zurlo said DOH answered any applications from non-residents, that were not already approved, with a letter requesting proof of residency. 

“At that point, it would have been illegal for us to issue cards to anyone [without a New Mexico ID] because their application had not been processed,” Zurlo said. 

Some of the complaints Zurlo said the program has been hearing is that out of state patient hopefuls paid high dollar amounts to medical professionals for a recommendation, only to be denied by the state. 

“One of their big complaints, and I understand it completely, is that they’ve paid all of this money to providers who did not give them the information that there was a bill or that it could change at any time based upon the potential decision of the appeal,” he said. 

The appeal Zurlo referenced was one filed by the governor’s office and the Department of Health, which oversees the Medical Cannabis Program. The appeal, which is still pending, came after a state district court ruled in favor of three residents of other states, who argued state law allowed for out of state medical cannabis patients. One of those now-patients was Duke Rodriguez, an Arizona resident who runs the medical cannabis producer Ultra Health. The attorney representing the three petitioners was Brian Egolf, who also serves as the New Mexico Speaker of the House.

Up until last year, state law specified that a qualified patient was a resident of New Mexico who is recommended by a licenced medical professional to use medical cannabis for an approved qualified condition. But a minor change in words, which the DOH secretary and at least one lawmaker have repeatedly said was an error, led to an extended legal battle and upwards of 600 people from out of state getting a New Mexico DOH sanctioned medical cannabis patient card.

Sen. Jerry Ortiz y Pino, who sponsored the 2019 bill that made the change, sponsored a bill during this year’s session aimed at correcting the issue. He told other lawmakers during committee hearing that his original intention was to lay the groundwork for a reciprocity program which would allow already approved cannabis patients from other states to buy and use their medicine in New Mexico. 

And while Ortiz y Pino’s bill aimed at limiting enrollment to New Mexico residents garnered large support from both Republicans and Democrats, there were more than a dozen Republican House members who voted against it. 

Rep. Rebecca Dow, R-Truth or Consequences was one of them. 

In an email to NM Political Report, Dow said she voted against the measure because she believes “we should work diligently to increase access to affordable medicine in America.”

“As a state we have approved the production and sales of medical marijuana,” Dow said. “I don’t see a reason to create laws restricting the economic growth or free market of products that, by law, we have decided to support.”

Regardless, the law is official now and Zurlo said he and his staff have been working to inform those applying without a New Mexico address and state-issued identification card that the law has changed. Anyone who applied before the new law went into effect got a letter explaining the change, Zurlo said.

“We want to get the information out to patients and we want to give them the correct information,” Zurlo said.