November 17, 2020

NM DOH tries again to limit medical cannabis reciprocity

The New Mexico Department of Health is trying, with two different approaches, to restrict rules on medical cannabis reciprocity. 

The Department of Health’s Medical Cannabis Program posted on their website a notice of a rule change hearing, scheduled for early next month. The new rules would only authorize out-of-state residents to become reciprocal medical cannabis patients in New Mexico. That means, under the proposed rules, New Mexico residents could not get authorization to use medical cannabis from another state and then use their out-of-state authorization to purchase, possess and use medical cannabis in New Mexico.

The department’s first attempt at changing the rules, through an emergency rule change in October, was thwarted by legal action filed by New Mexico medical cannabis company Ultra Health. Represented by Albuquerque-based attorney Jacob Candelaria, who is also a New Mexico state senator, Ultra Health argued that the emergency rule changes DOH was attempting to put in place went beyond the department’s authority. 

A state district court judge ruled in favor of Ultra Health and ordered DOH to continue accepting reciprocal patients regardless of whether their identification card and medical cannabis authorization came from the same jurisdiction. 

Last week, DOH filed a notice of the department’s intent to appeal the court’s decision.

In its response to Ultra Health’s legal action, the department’s lawyer argued that DOH does indeed have authority to implement rules that go above and beyond state laws. 

On Monday, Candelaria filed a new motion in the case asking the judge to call DOH back to court to “explain why the Court should not impose sanctions upon the Department for its willful violations” of the judges original order. 

In October, First Judicial District Court Judge Matthew Wilson ordered DOH to allow New Mexico dispensaries to sell medical cannabis to all reciprocal patients, regardless of where they obtained their authorization, to “immediately refrain from any further enforcement” of the emergency rule change the department tried to enact and to “administer the medical cannabis reciprocity program in full compliance” with state law. Wilson did not specifically order DOH to refrain from trying to change the rules in a non-emergency fashion. 

Both the emergency rule-change and the pending rule change proposals would require New Mexico residents who want to enroll in the Medical Cannabis Program to do so through DOH.

It’s not entirely clear why DOH wants to limit reciprocity to only those from other states, but some other states with a medical cannabis program, namely Oklahoma and California, have fewer restrictions for becoming a medical cannabis patient. In Oklahoma, for example, there is no list of qualified conditions as there is in New Mexico. Instead, a patient would only need a doctor to sign off that the patient would medically benefit from cannabis use. 

DOH justified its attempted emergency rule change in October with its concerns that if too many New Mexicans circumvented the state’s more stringent qualifications, New Mexico may not have enough cannabis to provide medicine to all registered patients. Ironically, it is Ultra Health who, for years, has publicly called for a dramatic increase in the number of plants producers can grow. And as state lawmakers prepare for next year’s legislative session, some experts, along with Ultra Health, say the current number of plants being grown in New Mexico will not be able to support a quick stand-up of a recreational-use program. 

DOH did not respond to requests for comment nor did the department make someone with the Medical Cannabis Program available for comment. The department also did not answer emailed questions about why it was simultaneously filing an appeal and proposing rule changes. 

But the move to change rules while also appealing a court case is reminiscent of 2019 when the Legislature changed the state’s cannabis law to allow residents of any state to enroll in New Mexico’s Medical Cannabis Program. The technical change was minor as it swapped the term ‘resident of New Mexico’ with ‘person’ when defining who could become a medical cannabis patient. Once again, the plaintiff was Ultra Health and again a judge sided with the company. DOH appealed that decision, but before an appellate panel could hear that case, Gov. Michelle Lujan Grisham added the issue to the list of things legislators could consider during that year’s 30-day session, outside of budget related issues. The Legislature overwhelmingly voted to change the law back to its original language, limiting the state’s program to only residents or reciprocal patients.