Jacob Candelaria

NM court rules DOH can limit medical cannabis reciprocity through rules

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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.

1st Judicial District Court

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

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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.

Medical Cannabis Program

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

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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.

consumption areas

Medical cannabis reciprocity on hold

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Medical cannabis patients from other states will have to wait until they can purchase or use their medicine in New Mexico. 

Even though medical cannabis reciprocity is written in state law and rules and regulation, the head of New Mexico’s program told NM Political Report that medical cannabis producers will not be able to sell to out of state patients until July. 

Dr. Dominick Zurlo, the Medical Cannabis Program director, confirmed that the state’s Department of Health Secretary Kathyleen Kunkel has signed off on a rule change that outlines rules for reciprocal patients. “It’s been signed and promulgated, which means it’s been basically distributed and become a regulation,” Zurlo said. “In the regulation itself, it does state it will take effect on July 1st.”

That’s partly because, Zurlo said, the seed-to-sale tracking software the state uses is due for an upgrade. Under the new rules, already-qualified cannabis patients from states that have a medical cannabis program could go to any dispensary in New Mexico to register as a reciprocal patient. 

“What it really comes down to is we’re not doing an upgrade that just includes this,” Zurlo said. “We’re actually doing a much broader upgrade and an upgrade that is going to have a much greater impact for patients in improving the system and improving how patients actually get registered in the program.”

Zurlo said part of the update will include an online portal where some patients can register and be approved by providers online. 

Between now and July, medical cannabis patients in New Mexico can expect to see the beginnings of consumption areas, or sanctioned places to use medical cannabis.

Duke Rodriguez

State says NM’s medical cannabis cards only for residents

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The New Mexico Department of Public Health has made it clear—only New Mexico residents  can enroll in the state’s Medical Cannabis Program. “Persons who are not residents of New Mexico cannot be enrolled in the NM Medical Cannabis Program,” the department said in a statement to NM Political Report Friday. The statement came after the CEO of a prominent medical cannabis producer said he believes a change in the law allows for out-of-state patients to enroll in New Mexico’s Medical Cannabis Program. Duke Rodriguez, president and CEO of Ultra Health, previously told NM Political Report he bought radio ads in the southeast part of New Mexico to inform those in west Texas they can now apply to become a medical cannabis patient. Cannabis is illegal in Texas for all uses, including medical.