August 30, 2020

Some raise concerns about out-of-state, reciprocal patients in the time of COVID-19

Amid the COVID-19 pandemic the New Mexico Department of Health approved rules that put into practice a state law allowing medical cannabis patients from other states to buy, possess and use medical cannabis in New Mexico. 

The law was passed in 2019 as part of a massive statutory change for medical cannabis. That law also included a separate provision that many have argued would have allowed non-residents of New Mexico to become a New Mexico medical cannabis patient. 

But in 2020 lawmakers, backed by Gov. Michelle Lujan Grisham and the DOH, passed a law that made sure that only those who were medical cannabis patients in other states already could qualify for New Mexico’s program. 

They argued that allowing people from nearby states without a medical cannabis program to enroll in the New Mexico Medical Cannabis Program could invite unwanted federal scrutiny. Through legislative debate and public testimony, legislators and public health officials argued that the reciprocity provision in the 2019 law would be adequate enough to provide medicine to non-resident, medical cannabis patients spending time in New Mexico and would provide enough legitimacy to keep the federal government from intervening. 

But even now that the law reverted to only allow New Mexico residents and those already enrolled in a medical cannabis program to buy, possess and use it in the state, there seems to be a loophole of sorts that may allow exactly what the governor and state officials warned against.

In 2019, the New Mexico Legislature approved a massive overhaul to the state’s medical cannabis law. The changes included protection from being fired from a job or losing parental custody just for being a medical cannabis patient. But a seemingly overlooked part of the law eliminated a residency requirement. The definition of a qualified patient that once included the words “Resident of New Mexico” became “person.”

Albuquerque Sen. Jerry Ortiz y Pino, the Democrat who sponsored the 2019 bill, argued during the 2020 session that the change was intended to allow reciprocity between New Mexico and other states that have legalized medical cannabis. New Mexico Health Secretary Kathyleen Kunkel told lawmakers that soon enough the state would, in practice, start honoring medical cannabis credentials from other states and that allowing those from states that have not legalized cannabis would encourage transportation of cannabis across state lines, which is a federal offense. 

Larry Love, a Santa Fe-based patient advocate and host of Medical Marijuana Radio, said several weeks ago he started to see social media posts that showed what seemed to be Texas residents coming into New Mexico to buy medical cannabis. 

“They were just openly showing videos of them going into a dispensary and buying their first medicine and so forth. And this is after the shutdown of our economy and isolation for COVID-19,” Love said. “And it just became very concerning to me that some of the younger generation have no concern that they might be breaking the law in using our law here in New Mexico.”

Texas actually does have a medical cannabis program, but only allows the use of medical cannabis that has 0.5 percent or less tetrahydrocannabinol (THC), which is a cannabinoid responsible for the psychoactive effects of cannabis. The Texas medical cannabis program also only has eight qualifying conditions, compared to New Mexico’s 28

Love said he thinks it would have been appropriate for the New Mexico Medical Cannabis Program, which is overseen by the DOH, to put a moratorium on reciprocity during the COVID-19 pandemic, in order to curb out of state travelers who are coming to New Mexico just for medical cannabis.

“I feel that the state should have called some kind of an audible and postponed the initiation,” Love said. 

There are a number of national websites that advertise as a service to would-be patients to get their medical cannabis recommendations. One site, NuggMD, offers their services for about $40 and has links for obtaining a medical cannabis recommendation in a number of states without having to meet with a doctor in person. According to the website, to obtain a medical cannabis recommendation from California’s medical program, a California ID is not required. So, presumably, anyone with an approved qualified condition could enroll in the California program from thousands of miles away. 

Director of the Medical Cannabis Program Dominick Zurlo told NM Political Report that he has confirmed with California officials that their program indeed has a resident requirement. 

 “We have worked with the state of California to determine what their authorization for someone to be involved in their medical cannabis program is,” Zurlo said. “And they require that an individual must reside in the county in which they apply to be a part of their program.”

Indeed, according to Calirfornia’s medical cannabis program, patients must reside in California. Although, California has been long-known in medical cannabis communities as being one of the easier states to qualify as a medical cannabis patient. The state was also an early adopter of recreational-use legalization. 

Zurlo said his office has been reviewing reciprocal patient registrations, which are done onsite at respective dispensaries, to make sure they are legitimately enrolled in a medical cannabis program. 

As for people traveling to New Mexico specifically to use New Mexico’s medical cannabis program, Zurlo said the state’s emergency public health order to self-quarantine still applies.  

“Quite frankly, that is really our bigger concern that anybody who is coming in from out of state does do the 14 day quarantine,” Zurlo said. “Now for people who are staying in New Mexico for a while or have been in New Mexico for a while and are participants in other programs, they of course are very welcome to participate in our program as a reciprocal participant.”

Duke Rodriguez, the president and CEO of New Mexico medical cannabis producer Ultra Health, argued that the state statute that spells out reciprocity, broadly, but clearly, allows patients to simply get a written recommendation from a medical professional. In other words, Rodriguez said, a letter signed by a doctor that recommends the use of cannabis to help a given patient should suffice. Rodriguez also said in the name of being aware of how medical cannabis programs work in other states, he was able to obtain a medically approved recommendation to take part in California’s medical cannabis program. Rodriguez is technically a resident of Arizona, but said he owns a home and has a vehicle registered in New Mexico. 

Ultra Health has storefronts up and down the New Mexico-Texas border, including a location in Sunland Park, which is less than 20 miles away from El Paso. But he said he hadn’t looked into if or how many Texas residents with a medical recommendation from California have used Ultra Health. 

But the head of another prominent medical cannabis company said he’s going the opposite direction and not taking part in reciprocity at all. 

Willie Ford, who runs the medical cannabis consulting and management company Reynold Greenleaf & Associates will not be accepting reciprocal patients. 

“I mean, imagine at some point, they’ve determined that these people aren’t actually patients,” Ford said. “Now as a producer, I’ve sold material to somebody who’s not a patient. I don’t want us to be somehow looped into something like that.”

Currently there are still several hundred out of state residents who are considered New Mexico cannabis patients because they qualified under state law before it was changed. The state does not keep track or publish which state those patients live in. Also, the federal Health Insurance Portability and Accountability Act (HIPPA) prevents the DOH from releasing medical information about patients, making it hard to determine exactly where or how reciprocal patients are getting their recommendations.