The New Mexico Department of Health must begin issuing medical cannabis cards to qualifying non-residents following a judge’s ruling that upholds an elimination of the program’s residency requirements.
Santa Fe District Court Judge Bryan Biedscheid’s order addressed confusion over the state’s medical cannabis law earlier this year.
During this year’s 60-day legislative session, lawmakers approved several cannabis-related bills, including one that made substantial changes to the state’s medical cannabis law, called the Lynn and Erin Compassionate Use Act.
“Among these changes was a change to the definition of a qualified patient,” Marissa Novel, chief marketing officer for Ultra Health, one of the state’s licensed vertically integrated cannabis businesses, told Cannabis Business Times. “In the former medical cannabis law, which was originally enacted in 2007, the definition of a qualified patient was a New Mexico resident who has been diagnosed with a debilitating condition. This year, during the legislative session, they struck ‘a New Mexico resident’ and replaced that terminology with ‘a person.’”
This opens New Mexico’s medical cannabis program to any person with one of the state’s 28 qualifying conditions who is certified by a New Mexico practitioner to use cannabis as treatment. Gov. Michelle Lujan Grisham signed the changes into law in April, and Ultra Health looked forward to serving a wider population of patients.
“There’s no mention of residency as a requirement for patients in the law, so we were fully expecting that change to become effective on June 14, … when the entire law became effective,” Novel said.
But not so fast.
When the law took effect, the New Mexico Department of Health, which oversees the state’s medical cannabis program, said it would not issue cards to out-of-state patients. Then the lawsuit landed in Biedscheid’s courtroom.
“Three petitioners, two from Texas and one from Arizona, who all applied for their medical cannabis cards and had been diagnosed with one of [New Mexico’s] 28 qualifying conditions, filed a Writ of Mandamus lawsuit, basically asking the judge to order the Department of Health to perform what’s called an ‘administerial duty’ in issuing medical cannabis cards to the petitioners,” Novel said. “An administerial duty is like issuing a marriage license or a fishing license. There’s shouldn’t be a discretion factor here. It’s just, if you check all the boxes, you should receive a permit, or a medical cannabis card.”
The Department of Health, however, said the point of contention in the new law was a drafting error.
“They said that change wasn’t supposed to be made in the law, but the law stands as it’s written,” Novel said.
The judge signed the petitioners’ Writ of Mandamus, indicating that he found merit in their argument. A hearing followed, where the Department of Health was able to argue why the Writ of Mandamus should not become permanent, but the judge affirmed that the Writ still stood.
In a final presentment hearing on Sept. 23, the judge issued a Permanent Writ of Mandamus and ordered the Department of Health to issue medical cannabis cards to those who qualify under the law but were either denied or put on hold due to residency alone.
Now, any patient—regardless of residency—can qualify for New Mexico’s medical cannabis program if they are diagnosed with one of the state’s 28 qualifying conditions (which include PTSD, chronic pain, opioid disorder and epilepsy) by a New Mexico practitioner and certified for medical cannabis treatment. Non-residents qualify for three-year cards, just like New Mexico residents (the change to a three-year medical cannabis card was also approved in this year’s overhaul of the program), and they can purchase cannabis products from any state-licensed dispensary and use them anywhere in the state.
“The language of ‘a person’ really does extend to a resident of any state in the United States, even Mexican Nationals and citizens of other countries, really, because it’s not specific—it’s just ‘a person,’” Novel said. “Especially when you look at geographically where New Mexico is located, so close to Mexico—Juarez is very close to the New Mexico border. So, really, any person—as long as they go through the requirements of how they should be certified and they have that medical diagnosis—can qualify for New Mexico’s medical cannabis program.”
Ultra Health is anticipating an enrollment increase in the state’s medical cannabis program following this ruling. New Mexico currently has about 77,000 registered patients, and enrollment is expected to increase anywhere from 20,000 patients to a complete doubling of the program, Novel said.
This increased demand could put a strain on the state’s currently limited supply. New Mexico caps the number of plants that its licensed producers can grow; the state recently raised the cap from 450 to 1,750 plants in response to a lawsuit, but many producers say this increase still isn’t enough to support the growing demand.
This new policy will have a sweeping impact not only on the New Mexico’s medical cannabis market, but also potentially on other markets across the country, Novel added.
“When you look at the history of medical cannabis in this country, it’s kind of crazy to think that your place of residence, which could just be a few miles from the New Mexico border, would prevent you from seeking medical care in the form of medical cannabis, which we know is a health alternative, in many ways, to traditional prescription drugs,” she said. “These conditions outlined in New Mexico’s program are categorized as debilitating medical conditions, so for a lot of people, access to medical cannabis care could very well be a life or death scenario, especially those suffering from cancer and other chronic diseases.”
Many patients across the country have become “cannabis refugees,” Novel said, uprooting their lives to move to a legal state where they can access cannabis as medicine.
“When you think about requiring residency for medical cannabis care, it’s a major burden on the individual, and we don’t believe it’s warranted,” she said. “If people with a qualifying condition choose to come to New Mexico and get certified by a New Mexico practitioner, they should be able purchase medicine and medicate in the state without totally uprooting their lives in the name of residency alone.”
The new law could also benefit people who work in the state several months of the year but don’t have residency, Novel added, as well as out-of-state college students. It could also help Texas patients with limited access to medical cannabis under Texas’ program.
“We recently asked the department there just how many patients they have in their program,” Novel said. “It’s been operating for about three to four years, and they only have about 800 patients in the program. They have three dispensary locations across the entire state of Texas, and they’re very limited to what kinds of products they can acquire. They can basically only acquire high-CBD products. … So, there’s a major opportunity for Texans to actually receive medical cannabis care [in New Mexico] that many others have found therapeutic through the use of THC.”
New Mexico’s new policy could also change the way people think about medical cannabis across the country, she said. “When you look at traditional healthcare, residency usually isn’t an issue when it comes to accessing medicine or accessing treatment. We believe that medical cannabis shouldn’t be any different. We see portability in traditional healthcare, and there should be portability for medical cannabis. Your location shouldn’t determine whether you can access cannabis care. I think that idea was supported in the law.”
New Mexico’s medical cannabis law now supports the idea that cannabis is equivalent to any other form of prescription medication in many other ways, as well, Novel said. One section added this year, for example, states: “For the purpose of medical care, including an organ transplant, a qualified patient’s use of cannabis pursuant to the Lynn and Erin Compassionate Use Act shall be considered the equivalent of the use of any other medication under the direction of a physician and shall not be considered to constitute the use of an illicit substance.”
In addition, the state’s worker’s comp law was altered in late 2014, early 2015, following a lawsuit, to allow individuals injured on the job to be reimbursed for their use of cannabis, if medical cannabis care is considered reasonable and necessary by their physician.
“It’s very, very powerful, establishing that it’s the equivalent,” Novel said. “It shouldn’t be treated any differently. I think that was a major building block for what we’re looking at today, and eventually, we could see medical cannabis being a covered service [by insurance].”
New Mexico’s medical cannabis products are already very pharmaceutical in nature, she added; patients currently have access to pharmaceutical-grade, precisely dosed sublingual and oil tablets, oils, suppositories, and pastilles, for example.
“These function like a lot of other traditional medications in healthcare, and if they function the same way, they should be covered the same way,” Novel said. “We’ve always approached medical cannabis from a healthcare perspective. We’ve done a lot to normalize the use of cannabis in the state, when it comes to meeting with different organizations in the state, like the Albuquerque Chamber of Commerce, and even the way we advertise our services is very clinical. As far as a long-term goal with this ruling, we want medical cannabis to be treated like any other form of healthcare. We want medical cannabis portability for our patients and for any potential patient. And we eventually want medical cannabis to be a covered service."