On July 1st, the law allowing medical cannabis reciprocity to out-of-state patients went into effect. TCC brought you an article on the process of how out-of-state patients were able to access the reciprocity program. Since then, it has been a battle with the New Mexico Department of Health (“NMDOH”). The NMDOH recently tried establishing their own rules- rules in which go against the wording of the law.
As The Law Allows
Earlier this year, the NMDOH started issuing out-of-state patients reciprocity as allowed by law. The law states that a reciprocal participant is “an individual who holds proof of authorization to participate in the medical cannabis program of another state of the United States, the District of Columbia, a territory or commonwealth of the United States or a New Mexico Indian nation, tribe or pueblo.”
Now this allows any patient that holds a valid proof of authorization from a licensed physician in a legal medical state to gain access to the New Mexico Medical Cannabis Program (“NMMCP”). Governor Michelle Lujan Grisham signed Senate Bill 406 into law on January 29, 2020, with these new provisions.
The Fight
Once the reciprocal program took off, many out-of-state patients started to enroll. Patients from Texas, Colorado, Oklahoma and even as far away as Washington.
For some reason, this upset a handful of patient advocates in New Mexico. So much so, they started complaining to the NMDOH. Patient advocates complaining about patients trying to access a better quality of life and in some cases, life-saving medicine. These advocates have even tried pushing the state’s COVID orders on the NMDOH. They are doing it to prohibit out-of-state patients from gaining access. Something that may ultimately come back to bite even them in the rear. There are even advocates, and dispensaries for that matter, that are calling a patient’s doctor recommendations fake. For the record, these doctor recommendations can be verified through websites to verify their validity.
Learn how to become a medical cannabis patient in Texas
Here is a little snippet from the NuggMD website, a site these “advocates” are calling recommendations as fake.
The patient only needs a paper copy of the doctor’s recommendation to access medical cannabis in the state of California. This IS “proof of authorization” from a doctor and is completely legal and legit. The only benefit the MMIC card gets you is tax exemption from county taxes.
On September 11, the NMDOH released a mandate that basically laid out the NMDOH’s interpretation of the law.
One provision that they tried to enforce, which goes against the wording of the law, was this:
“As an example, to clarify, individuals from California are issued County authorized medical marijuana identification cards when they enroll in the California program. These cards are required as proof of authorization in order to enroll and purchased through the New Mexico reciprocal program. California medical marijuana participants are not issued letters of Eligibility by the state of California. Individuals submitting letters of eligibility in the California medical program will need to also show the California medical marijuana identification card issued to them by the authorizing California county entity.
A reciprocal participant’s medical card, driver’s license, and or state-issued identification card must match the information on their proof of authorization, including the name, date of birth, address, and state of residence. Monitoring for compliance with this mandate shall begin immediately.”
This is a example of a state department twisting the words for them to prohibit an action allowed by law.
Here is the memo from the NMDOH to Licensed Non-Profit Producers.
The Blowback
Once the NMDOH released this mandate, they took it upon themselves to start removing patients from the reciprocal program. NMDOH forced New Mexico dispensaries to turn patients away if they didn’t have a physical medical card from California. There were even a few dispensaries that started telling patients that their doctor’s recommendations were fake. Baffling, seeing as how these patients consulted with a licensed physician who authorized them to use medical cannabis (i.e. proof of authorization).
The authorizations issued by these physicians even state on them:
“This medical document identifies this individual as a patient whose possession and or cultivation of medical cannabis is permissible pursuant to California Health and Safety Code Section 11362.5, compassionate use Act of 1996 (i.e. prop 215) and Senate Bill 420“
This meets the standards required by New Mexico law for a “proof of authorization”. This document authorizes patients to access and even personally cultivate medical cannabis in the state of California.
Once the NMDOH released the mandate and dispensaries started refusing patients due to said memo, Duke Rodriguez stepped in. Rodriguez is the owner of Ultra Health and is no stranger to the NMDOH
Back in Court
In 2019, Rodriguez successfully sued the NMDOH regarding the language of the law that allowed any “person” to gain access to the NMMCP. An amendment to the Lynn and Erin Compassionate Use Act changed the language for a “qualified patient” from being a New Mexico resident to a person.
When the law was signed, nonresidents started applying for their NMMCP access. At first, these patients were denied for not being an NM resident. That is where Rodriguez stepped in suing the NMDOH and forcing them to abide by the wording of the law.
Now fast forward to September 2020 after the NMDOH released their latest memo on the reciprocity program. Rodriguez and his legal team filed a Writ of Mandamus. The Writ was to order NMDOH to comply with the law allowing patients with a doctor authorization to access the reciprocal program.
Judges’ Orders
On October 13, 2020, Judge Matthew Wilson signed the Writ and ordered the NMDOH to abide by the following:
First: “allow licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients whose government-issued identification and proof of medical cannabis program authorizations are used by different jurisdictions or the same jurisdiction;
Second: Allow licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients who present a valid proof of authorization, including those reciprocal patients that present a California physicians authorization as their proof of authorization;
Third: Reauthorize and re-enroll any reciprocal patient removed from the program when the reason for the reciprocal participant’s removal was because the reciprocal participant’s state-of-residency and state-of-authorization are not the same, or, in the case of California-authorized reciprocal participants, the reciprocal participant did not produce a California issued medical cannabis card as proof of authorization to participate in the California medical cannabis program.
Fourth: otherwise permit all licensed cannabis producers to authorize and sell medical cannabis to reciprocal patients that meet the definition of ‘reciprocal participant’ under the Medical Cannabis Act and the DOH Rule in existence prior to October 8, 2020.
Fifth: Immediately refrain from further enforcement of the emergency rule of Oct. 8, 2020, or the Sept. 11, 2020, mandate.
Sixth: Administer the medical cannabis reciprocity program in full compliance with NMSA 1978, § 26-2B-7(J).”
This instructs the NMDOH to comply with the ordered Writ to establish and administer the reciprocity to out-of-state patients as worded by law.
A Battle Won in a Much Larger War
This is a win for out-of-state patients looking to access their medicine in the state of New Mexico but, we can bet out asses that the fight is not over. It is also a win for New Mexico residents as it allows them to gain same day access. Currently, New Mexico residents applying through the NMMCP have at least a 30-day wait. Ultimately, expect the Governor and NMDOH to fight it in the arena it needs to be fought in, the legislature.
Now, I am certain in the upcoming legislative session in January the New Mexico Legislature will try to amend the law. They want it to where a patient recommendation and driver’s license/identification card must be from the same state. If you have a recommendation from California, your ID will also have to be from California.
A bill has to be filed and passed for this to happen.
Rodriguez provided a quote to the publication of Cannabis Dispensary. He stated “Once again, the NMDOH has attempted to circumvent the Legislature to deny cannabis care to qualified individuals. Thankfully, the court has recognized the merits of the legislative public policy that allows individuals to participate in any other medical cannabis programs to access cannabis care in a seamless manner while in New Mexico, similar to any other prescription medication.“
This is a victory for out-of-state patients.
In conclusion, if you have any questions regarding the New Mexico Reciprocal Program you can contact me here.