A contentious hearing to consider new rules for the state's medical cannabis program took place today inside the New Mexico Department of Health auditorium in Santa Fe.
Licensed growers, patients, health care professionals and even some state lawmakers had wanted the public meeting postponed until they had a chance to provide regulators more input on proposed rules that could triple annual harvest yields, but lead to sharp fee increases, stricter testing requirements and a reduction in the number of pot plants patients can legally grow at home.
Eldorado resident Connie Forneris and Santa Fe's Scottie Daugherty were some of the first people to sign in for the meeting. They're concerned the proposed rules are too strict and could shut down the state program.
Debbie Armstrong, the former state Aging and Long-Term Services Department secretary whose daughter's name is included in the 2007 act that authorized medical cannabis, told independent hearing officer Susan Hapka she's "horrified" by the direction the program is taking, adding the new rules create "restrictive barriers."
Shortly after 9 am, Sen. Cisco McSorley, D-Albuquerque, entered the auditorium visibly upset. He told Hapka, a private attorney and employment law specialist at Sutin, Thayer & Browne, the hearing was in violation of the open meeting act because the room wasn't large enough to accommodate another 100 or so people waiting outside the building.
Pounding the podium and speaking with passion, McSorley says both the legislature and program stakeholders should have been consulted before the rules were published in May.
"These regulations, as far as I can tell, were written behind closed doors," he says.
Attorney Jason Marks, a former Public Regulations Commissioner from Albuquerque who represents 16 licensed producers in opposition of the rules, tells SFR he believes the health department has overstepped their rule-making authority.
"Many of the department's proposed rules have no basis in law," says Marks.
He points to a new proposal that could require patients to pay a $50 annual registration fee. State law, Marks says, requires the department to register patients who simply provide a doctor's written certification, their name, address and date of birth and the contact info and birth date of their primary caregiver. The statute never mentions a fee. He's also objects to a rule that allows the state's medical director to essentially override, or reject, a patient's primary care or specialist's program certification.
"Just because they think something is a good idea doesn't mean you can do it," says Marks. "That defeats the legislature's intent to provide patients safe and legal access."
Program advocates had hoped the new rules would be used to curb a chronic shortage of medication identified in a patient survey last fall.
Jason Little, who operates New Mexico Alternative Care in Farmington, says they've been trying to work with the department to solve the shortage for more than a year. He's worried the rule-making process will bog down a solution and raise prices for everyone.
In fact, medication rationing has been prevalent for years as the number of patients has nearly quadrupled since 2011. The survey showed 5 tons of cannabis are needed to supply 11,250 patients, but that producers are only growing about 20 percent of that amount.
Currently, producers are allowed 150 plants and seedlings. If new rules are adopted, they would be authorized to grow 150 mature plants and have 300 seedlings, but their annual fees would triple from $30,000 to $90,000.
New MexiCann Natural Medicine founder Len Goodman, who operates a dispensary in Santa Fe, wanted the department to separate the rule hearing into two parts. His preference: Consider plant increases first to deal with the medication supply levels. Then, he says, schedule another hearing to consider 26 pages of other rules.
Steve Jenison, the original Medical Cannabis Program manager and former chairman of the group's advisory board, remains engaged as a program advocate. When it was his turn to speak, Jenison told Hapka the current rule-making process is a "travesty." He's angry the board that is supposed to be consulted and provide recommendations on the level of marijuana supply was not consulted regarding before the meeting.
"Instead, the Department of Health scoffed at the law," says Jenison.
The rules, according to Joel White, who has suffered from multiple sclerosis for 25 years and uses medical cannabis to improve his quality of life, says the rules will have a negative impact on the program.
"I want the program to succeed, but these changes are very punitive for patients and increases their costs," says White, the vice president of the New Mexico Medical Cannabis Patient's Alliance.
Last week, Legislative Health and Human Services Committee Chairman Rep. James Roger Madalena, D-Jemez Pueblo, and Vice Chair Sen. Gerald Ortiz y Pino, D-Albuquerque, sent a letter to Health Secretary Retta Ward asking her to delay today's hearing until program managers consulted with producers, patients, and other stakeholders.
Ortiz y Pino tells SFR his panel will hold its own hearing on the rules at an interim committee meeting scheduled in Taos on July 17.
Goodman says some of the rules could drive patients back to the black market and put people in jeopardy of breaking the law.
"The legislature wanted patients to have safe and legal access," says Goodman. "It won't change what people do. It just removes their legal protection and puts them at risk."
The Drug Policy Alliance of New Mexico also has urged the department to carefully reconsider their proposed rules because they "establish new and serious disciplinary actions that rest on vague and ill-defined violations."
DPA's state Director Emily Kaltenbach says her group is speaking up to register their formal concerns about the rules.
"Transparency, accountability and compassion are all hallmarks of good government," says Kaltenbach, who says none of those appear in the new rules. She'd also asked why program managers want to impose new fees on sick patients since the program had a surplus in revenue and returned money to the general fund.
"The department needs to explain their intent behind each new rule proposal," says Kaltenbach.
It's not the first time new rules have been considered for the program. In Dec. 2010, the Department of Health agreed to increase producers' total plant count to 150, but limited the number of mature plants growers could greenhouse to 95 at a time.
Last August, the New Mexico Medical Board attempted to impose new rules on doctors and physician assistants it licenses, but critics said the board was overstepping its authority and didn't understand that health professional don't prescribe medical marijuana. The board eventually withdrew its proposed rules and cancelled a public meeting.
Vigil says interested parties have July 1 to submit written comments on the proposed rules to the department. Before the meeting, Vigil says the department has already received more than 400 comments via the mail and email.
After the meeting, Hapka will write a report and issue her own opinion on the rules. The Department of Health can accept changes she proposes or impose the rules as they're currently written.
Ward has said that after new rules are finalized, she'll consider issuing licenses to a dozen new nonprofit producers. People interested in operating a nonprofit dispensary will have to ante up a $10,000 application fee.
No matter the outcome of today's rule hearing, attorneys for the producers say they'll likely head to court to argue against rules they say restrict the program. And the Department of Health will be back in Santa Fe District Court by the end of September. Earlier this year, Judge Sarah Singleton ordered the department to show significant progress toward eliminating the shortages.
SFR will continue to monitor today's meeting. Follow Peter_StCyr on Twitter for updates.
To accommodate people living around the state who were unable to make the trip to Santa Fe, the Department of Health has set up a live webstream of the hearing. That stream is limited to 500 online viewers and only works on certain browsers.