In a public hearing scheduled for 9:30 am tomorrow, the New Mexico Department of Health will consider new regulations for the state's medical cannabis program—which many say could gut the 3-year-old program. Here's what's at stake.

We've analyzed the proposed rules, line by line, against what's in place now. Scroll through the document below to see what's different about the proposed regulations to govern New Mexico's medical cannabis program. Of particular interest are the following changes:

Change #1: The Medical Advisory Board, which currently recommends medical conditions that should allow people to qualify for medical cannabis use (and is meeting this morning to do just that, on the subject of "major depression"), would under the proposed rules have the power to recommend removing already approved conditions, or increasing the requirements to prove that a patient suffers from a particular condition.

One problem is that the Advisory Board already has trouble getting the DOH to sign off on the conditions it does approve, and many advocates decry the slow pace of certifying conditions. Removing conditions—which currently include PTSD, chronic pain, cancer and the like—could further limit prospective patients' access to medical cannabis, or even cut off existing patients' access entirely.

Changes #2, 3 and 10: All of these changes limit public access to the proceedings of the medical cannabis program, whether by restricting attendance to meetings, changing formerly public meetings to private ones, or lowering the bar for public notification (often from notification by registered or certified mail to simple, unspecified notification).

Changes #4 and 5: Two recurring themes in the proposed rules represent a slightly higher bar for program participants—but one that has the potential to protect the state and program participants from unwittingly violating the Controlled Substances Act.

The first involves a justification for prescribing medical cannabis, and a requirement that practitioners directly state that, for a particular patient, the benefits of medical cannabis will outweigh the risks. (Laziness?) The second requires that patients and caregivers prove they are New Mexico residents. Both appear in several places in the proposed regulations.

Note: This document does not represent a complete listing of all changes contained in the proposed regulations.

PUBLIC HEARING INFORMATION:

9:30 am

Thurs., Sept. 30

Harold Runnels Auditorium (ground floor)

1190 St. Francis Dr., Santa Fe, NM

PROPOSED RULES:

NM Medical Cannabis Regulations (Proposed)

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p. 4

Change #1: Raising the Bar

The Medical Advisory Board, the body that recommends which medical conditions the Secretary of Health should approve as qualifying conditions for medical cannabis use, would also have the power to recommend removing conditions, even if they've already been approved, or increase the requirements for patient eligibility.

The Medical Advisory Board, the body that recommends which medical conditions the Secretary of Health should approve as qualifying conditions for medical cannabis use, would also have the power to recommend removing conditions, even if they've already been approved, or increase the requirements for patient eligibility.

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Change #2: Public Hearings May Be Closed

This gives the Department of Health the authority to close public hearings "to protect information made confidential by applicable state or federal laws."

This gives the Department of Health the authority to close public hearings "to protect information made confidential by applicable state or federal laws."

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Change #3: Notification to the Public

This is one of several places in which the rules are changed from requiring public notice to interested parties "by mail" or, in several other places, "by certified mail," to notification by unspecified methods.

This is one of several places in which the rules are changed from requiring public notice to interested parties "by mail" or, in several other places, "by certified mail," to notification by unspecified methods.

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Changes #4-5: Benefits of Cannabis and In-State

These two changes also occur frequently in the proposed rules. The first requires a doctor's recommendation for a patient's admission to the medical cannabis program contain a justification for why medical cannabis' benefits "would likely outweigh health risks." The second contains a recurring emphasis on in-state patients and producers.

These two changes also occur frequently in the proposed rules. The first requires a doctor's recommendation for a patient's admission to the medical cannabis program contain a justification for why medical cannabis' benefits "would likely outweigh health risks." The second contains a recurring emphasis on in-state patients and producers.

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Change #3, again

Again, note that where the new rules state "shall be notified," the old rules said, "notified by registered mail."

Again, note that where the new rules state "shall be notified," the old rules said, "notified by registered mail."

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Change #6: DOH's Power to Deny Applications

This new language stipulates that the Department of Health can, "within its sole discretion," deny an application to the medical cannabis program if it believes "the use of cannabis...would more likely than not be detrimental to the applicant's health."

This new language stipulates that the Department of Health can, "within its sole discretion," deny an application to the medical cannabis program if it believes "the use of cannabis...would more likely than not be detrimental to the applicant's health."

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Change #7: Nature of Administrative Review

This new language changes the description of the administrative review process from one "intended to be an informal non-adversarial administrative review of written documentation" (old rules) to one that is "not an adjudicatory hearing, and an individual whose initial application for a registry identification card has been denied shall not be entitled to an adjudicatory hearing to contest the denial" (proposed rules).

This new language changes the description of the administrative review process from one "intended to be an informal non-adversarial administrative review of written documentation" (old rules) to one that is "not an adjudicatory hearing, and an individual whose initial application for a registry identification card has been denied shall not be entitled to an adjudicatory hearing to contest the denial" (proposed rules).

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Change #8: Judicial Review

This is just a subtle language change, but it places new emphasis on what rights patients in the program don't have rather than those they do. Old language: "Judicial review of the administrative review committee's final decision is permitted to the extent provided by law. The party requesting the appeal shall bear the cost of that appeal." New language: "Except as otherwise provided by law, there shall be NO RIGHT to judicial review of a decision by the administrative review committee."

This is just a subtle language change, but it places new emphasis on what rights patients in the program don't have rather than those they do. Old language: "Judicial review of the administrative review committee's final decision is permitted to the extent provided by law. The party requesting the appeal shall bear the cost of that appeal." New language: "Except as otherwise provided by law, there shall be NO RIGHT to judicial review of a decision by the administrative review committee."

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Change #9: Grounds for Revocation

The proposed regulations would add several new grounds upon which the Department of Health can revoke a medical cannabis patient or caregiver's license.

The proposed regulations would add several new grounds upon which the Department of Health can revoke a medical cannabis patient or caregiver's license.

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New location

(previously, Albuquerque)

(previously, Albuquerque)

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Change #10: Formerly Public Hearings Would Become Private

Old language: "All hearings held pursuant to this section shall be OPEN TO THE PUBLIC." Proposed language: "Due to federal and state laws regarding the confidentiality of protected health information, all hearings held pursuant to this section shall be CLOSED TO THE PUBLIC."

Old language: "All hearings held pursuant to this section shall be OPEN TO THE PUBLIC." Proposed language: "Due to federal and state laws regarding the confidentiality of protected health information, all hearings held pursuant to this section shall be CLOSED TO THE PUBLIC."

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Change #11: "Shall" Becomes "May"

The existing rules for appealing the revocation or suspension of a patient or caregiver's license are explicit: First, the person appealing "SHALL present an opening statement," the appellee (in this case, the Dept. of Health) "SHALL present its case," the appellant "SHALL present a rebuttal." The proposed rules change the language from "shall" to "may"—which in legal terms allows much more of the hearing procedure up to the hearing examiner's (or Department's?) discretion.

The existing rules for appealing the revocation or suspension of a patient or caregiver's license are explicit: First, the person appealing "SHALL present an opening statement," the appellee (in this case, the Dept. of Health) "SHALL present its case," the appellant "SHALL present a rebuttal." The proposed rules change the language from "shall" to "may"—which in legal terms allows much more of the hearing procedure up to the hearing examiner's (or Department's?) discretion.

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Change #12: More time for Health Secretary to decide

(previously 10 days)

(previously 10 days)

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Change #13: More Public Information Becomes Private

Previously, the rules stated that the final decision or order "shall be public information and shall become a part of the record." Under the proposed rules, that decision would no longer be available to the public.

Previously, the rules stated that the final decision or order "shall be public information and shall become a part of the record." Under the proposed rules, that decision would no longer be available to the public.

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Toggle Description Description

The New Mexico Department of Health's proposed changes to the regulations (NMAC) governing the state's medical cannabis program will be discussed in a public hearing at 9:30 am on Thurs., Sept. 30 in the Harold Runnels Auditorium, 1190 St. Francis Dr., in Santa Fe.

Contents

New terms p.1

Additional language defining "Adequate Supply" p.1

New terms (2) p.1

New terms (3) p.1

New terms (4) p.2

New terms (5) p.2

New terms (6) p.2

New terms (7) p.2

New terms (8) p.2

New terms (9) p.2

New terms (10) p.3

New terms (11) p.3

New terms (12) p.3

Change #1: Raising the Bar p.4

Change #2: Public Hearings May Be Closed p.5

Change #3: Notification to the Public p.6

Changes #4-5: Benefits of Cannabis and In-State p.11

Change #3, again p.12

New language p.12

Change #6: DOH's Power to Deny Applications p.13

Change #7: Nature of Administrative Review p.14

Change #8: Judicial Review p.14

New section and title p.15

New language p.15

Change #9: Grounds for Revocation p.16

New location p.16

Change #10: Formerly Public Hearings Would Become Private p.16

New language p.16

Change #11: "Shall" Becomes "May" p.17

Change #12: More time for Health Secretary to decide p.17

Change #13: More Public Information Becomes Private p.17

New language p.18

Original Document (PDF)

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