October 14, 2020

NM judge orders state health department to loosen medical cannabis reciprocity rules

A district court judge in Santa Fe ruled Tuesday that reciprocal medical cannabis patients can buy, possess and use medical cannabis in New Mexico, regardless of whether their identification matches the state where their medical recommendation to use cannabis came from. 

First Judicial District Court Judge Matthew Wilson’s order will also allow New Mexicans to get a recommendation to use medical cannabis from another state and become a reciprocal patient in New Mexico. 

The ruling came after New Mexico medical cannabis producer Ultra Health filed a petition asking the court to compel the state’s Department of Health to allow anyone with a medical authorization to use medical cannabis to become a reciprocal patient. 

Ultra Health’s attorney, Jacob Candelaria, who is also a Democratic state senator and himself a medical cannabis patient, told NM Political Report that Wilson’s decision will also allow patients to seek medical authorization from another state or from a tribal jurisdiction.    

“The court held that a reciprocal patient can have a proof of authorization and an ID from different jurisdictions, because the department was trying to say that, that you could only become a reciprocal patient if you had your proof of authorization, and your ID from the same jurisdiction,” Candelaria said. 

In his ruling, Wilson said the state DOH had been honoring identification cards issued by a different jurisdiction than respective medical cannabis recommendations. But last month the DOH instructed dispensary operators to only accept identification cards and cannabis recommendations from the same jurisdiction and only recommendations in the form of a card were to be accepted. Last week the department also filed an emergency rule change enacting the guidance they gave to dispensaries weeks before.  

Wilson noted, in his ruling, that prior to the department changing their rules, many reciprocal patients came from Texas, which has a more restrictive medical cannabis program than New Mexico. But some New Mexico residents, Wilson wrote, had the option of becoming a medical cannabis patient in nearby states with even fewer restrictions than New Mexico. 

“In essence, a New Mexico resident could bypass or circumvent the more stringent requirements for becoming a ‘qualified patient’ and elect to participate in the program as a ‘reciprocal patient,’” Wilson wrote. 

DOH spokesman David Morgan told NM Political Report that the department has already complied with the court order, but would not say whether the department plans on appealing the decision. Part of Wilson’s order was also that the DOH re-enroll any reciprocal patients who were removed from the program for not complying with the department’s temporary rule change. 

“The Department of Health’s Medical Cannabis Program has complied with the order,” Morgan said. “All 323 people affected by today’s decision have been re-authorized to be served by the program.” 

But Candelaria said he is slightly concerned that Gov. Michelle Lujan Grisham has advocated for full legalization, while her Department of Health tried to restrict who can become a reciprocal patient. 

“It’s unclear to me why the department takes this view that’s so fearful of New Mexicans getting access to medical cannabis, while the administration, on the other hand, is saying they are fully behind recreational legalization,” Candelaria said. “The two positions don’t seem to make much sense.”

The state’s reciprocity program was added to state law in 2019 as part of a wide reaching change to the state’s medical cannabis law. But it would take more than a year for the DOH to promulgate new rules to enact the change. Part of that 2019 law change also changed the definition of what a qualified patient was, albeit temporarily. The original medical cannabis law required a qualified patient to be a resident of New Mexico. The 2019 law change eliminated the residency requirement, only requiring a qualified patient to be a “person,” but the department maintained that a cannabis patient in New Mexico’s program was required to be a resident.

After Ultra Health successfully challenged that issue in court, the department allowed non-residents to become New Mexico cannabis patients, but also filed an appeal. But before that issue could be heard by an appellate panel, Lujan Grisham urged lawmakers to change the law back to only allow New Mexico residents into the program, unless they had a medical recommendation from a state with a medical cannabis program. 

During the 2019 legislative session, DOH officials warned lawmakers that expanding the program too much could invite federal scrutiny and a possible shut down of the state’s medical cannabis program.