Rules Rebellion

A Vietnam combat veteran, Masterson, 60, who uses cannabis to treat his post-traumatic stress disorder, joined around 400 other patients and program advocates to voice their concerns on contentious proposals to increase the number of plants commercial producers may harvest, but reduce the number that patients can legally grow at home. Scores of patients are also upset with a new $50 registration requirement and say they shouldn't have to undergo federal background checks.

Testimony from Masterson and about 175 others was aimed at Independent Hearing Officer Susan Hapka, a private attorney contracted by the department to issue an opinion on the regulations. She'll wait until the public comment period expires on July 1 and issue her own recommendations sometime this summer.

"She's operating under her own timeline," Medical Cannabis Program Manager Ken Groggel tells SFR after the hearing. "It's important for everybody, as we heard today, to keep this on track and going forward."

Groggel says he wants to reach a resolution quickly, so the department can move forward with issuing up to a dozen new additional nonprofit licenses later this year.

As many patients learned on Monday, Hapka's report is non-binding and Health Secretary Retta Ward, who did not attend the meeting, can either adopt or reject them. Yet Groggel tells SFR the health department welcomes the input it has received.

"We'll give it a great deal of weight," he says.

Several patients argued that the proposed rules, which were reviewed by Gov. Susana Martinez' staff before they were released, are designed to kill the program.

"We absolutely disagree with that," says Groggel. "Common sense tells you that we wouldn't be proposing increases in plant counts; we wouldn't be proposing adding additional nonprofit producers and all of that if that was the intention."

Still, a trio of state lawmakers and a half dozen attorneys tried to halt the public meeting. They say more time is needed to develop a reasonable regulatory framework.

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 Ward asking her to delay Monday's hearing until their interim committee hold its own hearing on the rules in Taos on July 17.

When their request to delay the meeting was denied, Sen. Cisco McSorley, D-Albuquerque, blasted Hapka for not having the meeting in a larger room. He pointed to 100 people forced to wait outside the building by a half dozen New Mexico State Police officers. McSorley claimed the rules were developed in secret and without stakeholder input.

"These regulations, as far as I can tell, were written behind closed doors," says McSorley.

Many of those regulations, including stricter testing requirements, according to former Public Regulation Commissioner Jason Marks "have no basis in law."

Marks says expensive federal background checks that the department wants patients to pay for and submit with their personal production licenses are not required by state statute. Yet, Masterson says that requirement is unreasonable.

"I haven't done anything illegal," he says. "Doctors don't have to check the sex offenders registry before prescribing Viagra."

Marks, who represents a group of 16 state licensed growers, tells SFR he's prepared a legal complaint if the department tries to impose some of the rules.

"Just because they think something is a good idea doesn't mean you can do it. That defeats the legislature's intent to provide patients safe and legal access," he says.

It's access that producers and patients want to improve. After a patient survey last fall showing chronic marijuana shortages in New Mexico, producers met with regulators and asked for them to boost their plant counts.

"It is far from clear that the amended rules will significantly increase supply of medical cannabis," says Marks. "Unfortunately, it is abundantly clear that the net results of these rules will be to significantly exacerbate the price problem, driving patients away from the program—at the same time that other proposed rules will make it harder and more expensive for patients who need relief to qualify."

Erik Briones, who operates Albuquerque's largest dispensary Minerva Canna Group, told Groggel if he intended to use the rules to improve the program, he "failed miserably."

Steve Jenison, the original Medical Cannabis Program manager and former chairman of the group's advisory board, 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 before the meeting.

Others like Medical Marijuana Radio host Larry Love, a former Sacred Gardens dispensary board member, demanded Groggel resign and said the governor "should be embarrassed."

Some want the department to allow producers to grow up to 500 plants. Once that's done, they say, there will be plenty of time to consider other rules.

Groggel claims, however, that the proposals were developed after reviewing other state programs. The fees, he says, are necessary to fund the program, which has been criticized for being understaffed and underfunded.

"As the industry evolves and there are new products, new methods, new this, new that, we are responsible for being accountable to manage the program and its growth, and so that's a reason that new fees are a necessary evil, if you will," says Groggel.

About 11,000 New Mexico patients have permission from the state to use cannabis for medical reasons. To read or comment on the proposed rules, visit nmhealth.org/about/mcp/svcs

Santa Fe Reporter