A state district court judge ruled Thursday that the New Mexico Department of Health is allowed to limit who can become a reciprocal medical cannabis patient through department rules.
First Judicial District Court Judge Matthew Wilson said that his previous order to stop the department from proceeding with an emergency rule change regarding reciprocity did not prohibit the department from adopting rules regarding reciprocity in general.
“The writ does not say that the requirements for reciprocal participation imposed by the emergency rule and the mandate were incompatible with the [state law] or go beyond the Department of Health’s rulemaking authority,” Wilson said during the hearing on Thursday. “The writ does not forbid the creation or promulgation of a regulation through normal rulemaking process the court did not conclude the emergency rule conflicted with the act.”
The New Mexico Legislature approved medical cannabis patient reciprocity in 2019 as part of a larger overhaul to the state’s medical cannabis program. Last summer the state’s Medical Cannabis Program, overseen by the Department of Health, finalized rules for reciprocity, allowing medical cannabis patients from other states and jurisdictions to purchase and consume their medicine in New Mexico. By September, the Medical Cannabis Program notified New Mexico Dispensaries of an emergency rule change that would require reciprocal patients to provide a matching medical cannabis authorization and identification card. The program also said reciprocal patients could not be a New Mexico resident, which meant New Mexico residents could not use a medical cannabis authorization from another state with looser restrictions.
Citing overwhelmed hospitals, the state Department of Health issued new amendments to the state public health orders that will allow hospitals to operate under crisis standards of care regarding credentialing processes for COVID-19 health providers and another that would delay many elective surgeries until at least January. Acting Health Secretary Billy Jimenez signed the public health orders. “New Mexico’s health care providers and delivery system will continue to provide the best possible care to all patients,” Jimenez said in a statement. “New Mexico’s health care system, and everyone working within it, will continue to work toward the best possible outcome for our state. It’s so important for all of us to step up for those dedicated health care workers, to recognize the sacrifices they are making to protect our neighbors, to understand our own actions can and will make a difference.”
The crisis standards of care allows some physicians and other health care workers to be able to treat COVID-19 patients even if this is outside their scope of practice, under limited circumstances.
The state Department of Health announced 1,250 cases of COVID-19 Sunday and 11 additional related deaths. This brought the total number of cases to 108,088 and the total number of related deaths to 1,749. The zip code with the most additional cases Sunday was 87121 with 99. It is west of Albuquerque. The other nine zip codes with the most additional cases of the respiratory illness are:
New Mexico became the 37th state to record 100,000 cases in total for COVID-19 and the state announced a record-breaking 40 deaths Wednesday related to the illness. Gov. Michelle Lujan Grisham issued a statement in response, saying that the state is “headed for a painful winter.”
“Today alone we lost 40 New Mexicans to this virus. We cannot become numb to this tragedy. Families all across our state are grappling with unfathomable grief. Each of these New Mexicans was loved.
The New Mexico Department of Health and its Medical Cannabis Program have two weeks to convince a state district court judge that the department and program should not be sanctioned for violating a court order.
The order is the latest in a legal battle between medical cannabis producer Ultra Health and the state over who qualifies as a reciprocal medical cannabis patient.
This summer, the Department of Health finalized rules allowing patients who are authorized to use medical cannabis in another state or jurisdiction to also buy, use and possess cannabis in New Mexico. Shortly after the rule was made final, some New Mexicans reportedly started getting certified to use medical cannabis in other states that don’t have as stringent qualifications as New Mexico.
By September, the department and the Medical Cannabis Program issued a mandate that dispensaries only sign up would-be reciprocal patients whose identification cards match their authorization to use medical cannabis. The department and program also issued an emergency rule change, specifying that New Mexicans cannot be reciprocal patients in New Mexico.
Ultra Health, through its attorney Jacob Candelaria, who is also a state senator, days later filed a petition asking First Judicial District Court Judge Matthew Wilson to compel the state to “stop taking actions that are beyond and contrary to their statutory authority.”
By October, Wilson ordered the state to rescind its emergency rule change and mandate barring New Mexicans from registering as a medical cannabis patient in another state and becoming reciprocal patients in the New Mexico program.
The department and medical program immediately abided by the order and again allowed New Mexico residents to register as reciprocal patients.
But by the end of October, the Medical Cannabis Program published a notification of a proposed rule change similar to the emergency change. Then, earlier this month, the state notified the court of its plan to appeal Wilson’s decision. Two days later, Candelaria filed a motion asking Wilson to call the state back to court and explain why they should not be sanctioned for violating the judge’s order.
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.
Gov. Michelle Lujan Grisham’s office announced the appointment of a new Department of Health secretary on Wednesday.
In a statement, Lujan Grisham said she was “thrilled to welcome” Dr. Tracie Collins as the New Mexico Department of Health secretary-designate.
“New Mexico has never needed experienced and compassionate public health leadership more than right now,” Lujan Grisham said. “Dr. Collins will hit the ground running as part of our state’s COVID-19 response effort with the Department of Health and indeed all of state government.”
Collins is currently the dean of Population Health at the University of New Mexico and according to the governor’s office announcement has served in a variety of public health in the world of academia.
Collins, in a statement through the governor’s office, said she is ready to start working with staff at the DOH to help combat the COVID-19 pandemic.
“This is a very challenging time for all of us,” Collins said. “There is much work to be done to ensure the health and safety of New Mexicans. But I know the dedicated professionals of the Department of Health, and the many health care leaders throughout our state, are going to continue working tirelessly to address the needs of our diverse communities, both in this current crisis and beyond.”
Collins’ appointment comes months after former health secretary Kathyleen Kunkel announced her retirement. The department’s legal counsel Billy Jimenez served as acting secretary after Kunkel left.
The state Department of Health announced 11 additional deaths related to COVID-19 and 592 additional cases of the disease, but due to technical difficulties, that is a partial count. The state experienced a technical disruption of the electronic laboratory reporting system, according to DOH. The state will report the delayed results in its daily reporting as soon as those numbers are available, DOH said in its news release. There are 354 individuals who are hospitalized in the state for COVID-19 as of Saturday. That is an increase of 20 since Friday.
The state Department of Health announced 269 cases of COVID-19 on Sunday with four additional related deaths. Bernalillo County reported 100 new cases. The counties with double digit numbers include Doña Ana, with 40; Chaves, with 27; Curry with 12 and Lincoln with 10. The Department of Corrections also reported 22 additional cases at the Lea County Correctional Facility. The total number of cases is now 32,983.
The state announced 161 additional cases of COVID-19 Thursday and three additional related deaths. Three counties in the southeast – Chaves with 31; Eddy with 21; and Lea with 13 – reported double digit numbers Thursday. The other four counties that reported double digit numbers were Bernalillo with 27; Doña Ana with 17 and Santa Fe with 11. De Baca County reported its first case Thursday. During Gov. Michelle Lujan Grisham’s press conference Thursday, Department of Human Services Secretary Dr. David Scrase praised the county.