Smoke Screen

With Republican gubernatorial candidate Susana Martinez leading in polls, and a revised set of rules on the table, New Mexico's medical cannabis program participants have a new worry: whether the three-year-old program will even survive.

The proposed regulations, many say, hamstring medical cannabis patients and producers while concentrating power in the hands of the secretary of health—an appointed position that, should Martinez win, could play a pivotal role in her desire to eliminate the program entirely [News, June 30: "Smokin' Out the Candidates"].

At a Sept. 30 public hearing, hundreds of patients, providers and advocates railed against the Department of Health's proposed changes, which range from subtle to significant.

At one end of the spectrum are small language changes, such as delineating certain procedures in terms of "may" rather than "shall"—a distinction only a lawyer would recognize, but one that expands the authority of a hearing officer appointed by the secretary of health.

Others are more dramatic, such as closing appeal hearings to the public and expanding the health secretary's authority to deny patient licenses.

One proposed change that has patients particularly incensed allows the Medical Advisory Board—a group of doctors chosen by the health secretary to recommend additional medical conditions for the program—to require additional proof that a patient has a certain condition. Another allows the board to remove conditions it has already approved.
To Len Goodman, the founder of Santa Fe producer NewMexiCann Natural Medicine, such changes are preposterous.

"When that statute was [passed], the Legislature said, 'Look, we have enough evidence for certain conditions. The science on more conditions is going to come; we need a mechanism to add those,'" Goodman says. "The idea of going back and removing them—there's no justification for it."

And adding requirements—such as an additional doctor visit for patients attempting to qualify for conditions such as cancer or post-traumatic stress disorder—will only disqualify cash-strapped patients, he says.

"We have patients who are dropping out of the program because their health insurance doesn't cover it, and they can't afford $200 to get their psychiatric recertification for PTSD," Goodman says.

Despite those changes' potentially devastating effect on the program, Goodman didn't hear about them until just days before the hearing [Briefs, Sept. 29: "Joint Resolution"]. It was only when Patricia Monaghan, an Albuquerque lawyer specializing in medical cannabis, went line by line through the proposed rules that Goodman realized how much could actually change.

Goodman and Monaghan did their best to get the message out about the breadth of proposed rule changes. Among the hundreds attending the public hearing were state Sen. Cisco McSorley, D-Bernalillo, and Ethan Nadelmann, executive director of the national Drug Policy Alliance.

"There's no reason why this administration should put forward regulations that essentially provide an opening and a road map for more hostile administrations in the future to effectively strangle medical marijuana in the state," Nadelmann said at the hearing. The applause was deafening.

Nadelmann's speech hints at timing that adds a worrisome dimension to the idea of concentrating discretionary authority in the hands of a governor-appointed health secretary.

"Why, in a Democratic administration, when the chances of the Republican candidate winning the election are very good, is the DOH putting in rules that will weaken the program?" Goodman wonders. "It makes no sense."

The period to submit comments on the proposed rules has been extended to Oct. 10. Comments may be submitted by email to medical.cannabis@state.nm.us or by mail to Medical Cannabis Program, 1190 St. Francis Drive, Ste. S1310, Santa Fe, NM 87502

Santa Fe Reporter