TITLE 7 HEALTH
CHAPTER 34 MEDICAL USE OF CANNABIS
PART 3 REGISTRY IDENTIFICATION CARDS
7.34.3.1 ISSUING
AGENCY:
New Mexico Department of Health, Medical Cannabis Program.
[7.34.3.1 NMAC - Rp, 7.34.3.1 NMAC, 2/27/2015]
7.34.3.2 SCOPE: This rule governs the issuance of registry identification cards to qualified patients
and primary caregivers as defined by the Lynn and Erin Compassionate Use Act,
26-2B-3(F) and (G) NMSA 1978. All
requirements contained herein are necessary prerequisites to the state’s
ability to distinguish between authorized use under the act and unauthorized
use under the state’s criminal laws.
[7.34.3.2 NMAC - Rp, 7.34.3.2 NMAC, 2/27/2015]
7.34.3.3 STATUTORY AUTHORITY: The requirements set
forth herein are promulgated by the secretary of the department of health pursuant to the authority granted under Section
9-7-6 (E) NMSA 1978, and the Lynn and Erin Compassionate Use Act, 26-2B-1 et seq. NMSA 1978. Although federal law currently prohibits any
use of cannabis, the laws of several states permit the medical use and
cultivation of cannabis. New Mexico
adopts these regulations to accomplish the purpose of the Lynn and Erin
Compassionate Use Act as stated in Section 26-2B-2 NMSA 1978, “to allow the
beneficial use of medical cannabis in a regulated system for alleviating
symptoms caused by debilitating medical conditions and their medical
treatments,” while at the same time ensuring proper enforcement of any criminal
laws for behavior that has been deemed illicit by the state.
[7.34.3.3 NMAC - Rp, 7.34.3.3 NMAC, 2/27/2015]
7.34.3.4 DURATION: Permanent.
[7.34.3.4 NMAC - Rp, 7.34.3.4 NMAC, 2/27/2015]
7.34.3.5 EFFECTIVE
DATE: February
27, 2015, unless a later date is cited at the end of a section.
[7.34.3.5 NMAC - Rp, 7.34.3.5 NMAC, 2/27/2015]
7.34.3.6 OBJECTIVE: Ensuring the safe use
and possession of cannabis for individuals living with debilitating medical
conditions, and the safe possession and administration of cannabis for medical use to those individuals by primary
caregivers, as mandated under the Lynn & Erin Compassionate Use Act Sections
26-2B-1 et seq., NMSA 2007.
[7.34.3.6 NMAC - Rp, 7.34.3.6 NMAC, 2/27/2015]
7.34.3.7 DEFINITIONS:
A. “Act” means the Lynn and Erin Compassionate Use Act, Sections
26-2B-1 through 26-2B-7 NMSA 1978.
B. “Adequate
supply” means an amount of cannabis, derived solely from an intrastate source and in a form approved by the department, that is possessed by a
qualified patient or collectively possessed by a qualified patient and the
qualified patient’s primary caregiver, that is determined by the department to
be no more than reasonably necessary
to ensure the uninterrupted availability of cannabis for a period of three
months or 90 consecutive calendar days.
C. “Administrative review committee” means
an intra-department committee that reviews qualified patient or primary
caregiver application denials, licensed producer denials made by the program
manager, or the summary suspension of a producer’s license, in accordance with
department rules. The administrative
review committee shall consist of the chief medical officer of the department
(or that’s person’s designee); a deputy secretary of the department (or that
person’s designee), and the chief nursing officer of the department (or that
person’s designee).
D. “Administrative
withdrawal” means the procedure for the voluntary withdrawal of a
qualified patient or primary caregiver from the medical cannabis program.
E. “Advisory
board” means the medical cannabis advisory board consisting of eight
practitioners representing the fields of neurology, pain
management, medical oncology, psychiatry, infectious disease, family medicine,
and gynecology.
F. “Applicant”
means any person applying for enrollment or re-enrollment in the medical
cannabis program as a qualified patient,
primary caregiver, or licensed producer.
G. “Approved
laboratory” means a laboratory that has been approved by the department specifically for the
testing of cannabis, concentrates, and cannabis derived products.
H. “Batch”
means, with regard to usable cannabis, a homogenous, identified quantity of
cannabis no greater than five pounds that is harvested during a specified time
period from a specified cultivation area, and with regard to concentrated and
cannabis-derived product, means an identified quantity that is uniform, that is
intended to meet specifications for identity, strength, and composition, and
that is manufactured, packaged, and labeled during a specified time period
according to a single manufacturing, packaging, and labeling protocol.
I. “Cannabidiol (“CBD”)” is a cannabinoid
and the primary non-psychoactive ingredient found in cannabis.
J. “Cannabis”
means all parts of the plant, cannabis sativa, and cannabis indica, whether
growing or not and the resin extracted from any part of the plant.
K. “Cannabis-derived product” means a product, other than cannabis itself,
which contains or is derived from cannabis, not including hemp.
L. “Concentrated
cannabis-derived product (“concentrate”)” means a cannabis-derived product
that is manufactured by a mechanical or chemical process that separates any
cannabinoid from the cannabis plant, and that contains (or that is intended to
contain at the time of sale or distribution) no less than thirty-percent (30%)
THC by weight.
M. “Courier” means a person or entity that
transports usable cannabis within the state of New Mexico from a licensed
non-profit producer to a qualified patient or primary caregiver, to another non-profit producer, to an
approved laboratory, or to an approved manufacturer.
N. “Debilitating
medical condition” means:
(1) cancer;
(2) glaucoma;
(3) multiple sclerosis;
(4) damage to the nervous tissue of
the spinal cord, with objective neurological indication of intractable spasticity;
(5) epilepsy;
(6) positive status for human
immunodeficiency virus or acquired immune deficiency syndrome;
(7) admission into hospice care in
accordance with rules promulgated by the
department; or
(8) any other medical condition, medical
treatment, or disease as approved by the department which results in pain,
suffering, or debility for which there is credible evidence that medical use cannabis could be of benefit.
O. “Department”
means the department of health or its agent.
P. “Facility” means any
building, space, or grounds licensed for the production, possession, testing,
manufacturing, or distribution of cannabis, concentrates, or cannabis-derived
products.
Q. “Intrastate”
means existing or occurring within the state boundaries of New Mexico.
R. “Laboratory applicant” means a
laboratory that seeks to become an approved laboratory, or that seeks renewal
of approval as an approved laboratory, in accordance with this rule.
S. “License” means the document issued by the department
granting the legal right to produce medical cannabis for a specified period of
time.
T. “Licensed
producer” means a person or entity licensed to produce medical
cannabis.
U. “Licensure” means the process by which the department grants permission
to an applicant to produce cannabis.
V. “Lot”
means an identified portion of a batch, that is uniform and that is intended to
meet specifications for identity, strength, and composition; or, in the case of
a cannabis-derived product or concentrate, an identified quantity produced in a
specified period of time in a manner that is uniform and that is intended to
meet specifications for identity, strength, and composition.
W. “Male plant” means a male cannabis plant.
X. “Manufacture”
means to make or otherwise produce cannabis-derived product or concentrate.
Y. “Manufacturer”
means a business entity that manufactures cannabis-derived product that has
been approved for this purpose by the medical cannabis program.
Z. “Mature
female plant” means a
harvestable female cannabis plant that is flowering.
AA. “Medical
cannabis program” means the administrative body of the department charged with the management of the medical
cannabis program and enforcement of program regulations, to include issuance of
registry identification cards, licensing of producers, and regulation of
manufacturing and distribution.
BB. “Medical
cannabis program manager” means the administrator of the medical
cannabis program who holds that title.
CC. “Medical
director” means a medical practitioner designated by the department to determine whether the
medical condition of an applicant qualifies as a debilitating medical condition
eligible for enrollment in the program, and to perform other duties.
DD. “Medical
provider certification for patient eligibility form” means a written
certification form provided by the medical cannabis
program signed by a patient's practitioner that, in the practitioner's
professional opinion, the patient has a debilitating medical condition as
defined by the act or this part and would be anticipated to benefit from the
use of cannabis.
EE. “Minor”
means an individual less than 18 years of age.
FF. “Paraphernalia” means any
equipment, product, or material of any kind that is primarily intended or
designed for use in compounding, converting, processing, preparing, inhaling, or otherwise introducing
cannabis or its derivatives into the human body.
GG. “Patient
enrollment/re-enrollment form” means the registry identification
card application form for patient applicants provided by the medical cannabis
program.
HH. “Personal production license” means a
license issued to a qualified patient participating in the medical cannabis
program, to permit the qualified patient to produce medical cannabis for the
qualified patient’s personal use, consistent with the requirements
of department rule.
II. “Petitioner”
means any New Mexico resident or association of New Mexico residents
petitioning the advisory board for the inclusion of a new medical condition,
medical treatment, or disease
to be added to the list of debilitating medical conditions that qualify for the
use of cannabis.
JJ. “Plant”
means any cannabis plant, cutting, or clone that has roots or that is
cultivated with the intention of growing roots.
KK. “Policy”
means a written statement of principles that guides and determines present and
future decisions and actions of the licensed producer.
LL. “Practitioner”
means a person licensed in New Mexico to prescribe and administer drugs that
are subject to the Controlled
Substances Act, Sections 30-31-1 et
seq., NMSA 1978.
MM. “Primary
caregiver” means a resident of New Mexico who is at least 18 years
of age and who has been designated by the qualified patient or their
representative and the patient’s practitioner as being necessary to take responsibility for managing the
well-being of a qualified patient with respect to the medical use of cannabis
pursuant to the provisions of the Lynn and Erin Compassionate Use Act, Section
26-2B-1 et seq.,
NMSA 1978.
NN. “Primary
caregiver application form” means the registry identification card
application form provided by the medical cannabis program.
OO. “Private
entity” means a private, non-profit organization that applies to
become or is licensed as a producer and distributor of cannabis, concentrates,
or cannabis-derived products.
PP. “Proficiency
testing” means testing conducted by the department or its agent to
determine the ability of a laboratory applicant or approved laboratory to
accurately identify presence, quantity, or other factors pertaining to a given
analyte.
QQ. “Qualified
patient” means a resident of New Mexico who has been diagnosed by a
practitioner as having a debilitating medical condition and has received a
registry identification card issued pursuant to the requirements of the act or
department rules.
RR. “Registry
identification card” means a document issued and owned by the
department which identifies a qualified patient authorized to engage in the use
of cannabis for a debilitating medical condition or a document issued by the department
which identifies a primary
caregiver authorized to engage in the intrastate possession and administration
of cannabis for the sole use of the qualified patient.
SS. “Representative”
means an individual designated as the applicant’s or petitioner’s agent,
guardian, surrogate, or other legally
appointed or authorized health care decision maker.
TT. “Secretary”
means the secretary of the New Mexico department of health.
UU. “Secure grounds” means a facility that provides a safe environment to avoid
loss or theft.
VV. “Security alarm system” means any
device or series of devices capable of alerting law enforcement , including,
but not limited to, a signal system interconnected with a radio frequency
method such as cellular, private radio signals, or other mechanical or
electronic device used to detect or report an emergency or unauthorized
intrusion.
WW. “Security policy” means the
instruction manual or pamphlet adopted or developed by the licensed producer
containing security policies, safety and security procedures, and personal safety and crime prevention
techniques.
XX. “Seedling” means a cannabis plant that
has no flowers.
YY. “Segregate” means to separate and
withhold from use or sale batches, lots, cannabis, usable cannabis, or
cannabis-derived products in order to first determine its suitability for use
through testing by an approved laboratory.
ZZ. “THC” means tetrahydrocannabinol,
a cannabinoid that is the primary psychoactive ingredient in cannabis.
AAA. “Technical evidence” means scientific, clinical, medical, or other specialized testimony, or
evidence, but does not include legal argument, general comments, or statements
of policy or position concerning matters at issue in the hearing.
BBB. “Testing” means the process and
procedures provided by an approved laboratory for testing of cannabis and
cannabis derived products, consistent with provisions of this rule.
CCC. “Unit”
means a quantity of usable cannabis, concentrate, or cannabis-derived product
that is used in identifying the maximum supply that a qualified patient may
possess for purposes of department rules.
DDD. “Usable
cannabis” means the dried leaves and flowers of the female cannabis
plant and cannabis-derived products, including concentrates, but does not
include the seeds, stalks, or roots of the plant.
[7.34.3.7 NMAC - Rp, 7.34.3.7 NMAC, 2/27/2015;
A, 2/29/2016]
7.34.3.8 QUALIFYING DEBILITATING MEDICAL CONDITIONS:
A. Statutorily-approved conditions: As of the date of promulgation of this rule, specific qualifying
debilitating medical conditions, diseases, and treatments (“qualifying
conditions”) identified in the Lynn and Erin Compassionate Use Act, Section
26-2B-3(B) NMSA 1978, include:
(1) cancer;
(2) glaucoma;
(3) multiple sclerosis;
(4) damage to the nervous tissue of
the spinal cord, with objective neurological indication of intractable
spasticity;
(5) epilepsy;
(6) positive status for human immunodeficiency
virus or acquired immune deficiency syndrome; and
(7) admission into hospice care in
accordance with rules promulgated by the department.
B. Department-approved conditions:
The department finds that the following additional qualifying conditions
result in pain, suffering, or debility for which there is credible evidence
that the medical use of cannabis could be of benefit, through the alleviation
of symptoms, and the department accordingly approves these conditions as
qualifying debilitating medical conditions for the participation of a qualified
patient or primary caregiver in the medical cannabis program. The department-approved conditions include:
(1) severe chronic
pain:
(a) objective
proof of the etiology of the severe chronic pain shall be included in the
application; and
(b) a
practitioner familiar with the patient’s chronic pain shall provide written
certification that the patient has an unremitting severe chronic pain condition;
(2) painful
peripheral neuropathy: application to
the medical cannabis program shall be accompanied by medical records that
confirm the objective presence of painful peripheral neuropathy;
(3) intractable
nausea/vomiting;
(4) severe
anorexia/cachexia;
(5) hepatitis
C infection currently receiving antiviral treatment: the written certification shall attest:
(a) that
the hepatitis C infection is currently being treated with antiviral drugs; and
(b) to
the anticipated duration of the hepatitis C antiviral treatment.
(6) Crohn’s
disease;
(7) post-traumatic
stress disorder (PTSD): each individual
applying to the program for enrollment shall submit medical records that
confirm a diagnosis of PTSD meeting the diagnostic criteria of the current diagnostic and statistical manual of mental
disorders;
(8) inflammatory
autoimmune-mediated arthritis: each
individual applying to the program for enrollment shall submit medical records
that confirm the diagnosis of inflammatory autoimmune-mediated arthritis;
(9) amyotrophic
lateral sclerosis (Lou Gehrig’s disease);
(10) inclusion
body myositis;
(11) spasmodic
torticollis (cervical dystonia);
(12) Parkinson’s
disease;
(13) Huntington’s
disease;
(14) ulcerative
colitis; and
(15) such other
conditions as the secretary may approve.
C. Additional application requirements: A patient shall submit written certification
from the patient’s practitioner which shall attest:
(1) to
the diagnosis of the medical condition;
(2) that
the condition is debilitating; and
(3) that
potential risks and benefits of the use of medical cannabis for the condition
have been discussed with the patient, in accordance with this rule; a patient who applies on the basis of having
a department-approved condition may also be required to satisfy additional
eligibility criteria, as specified in this rule.
D. Modification
or removal of department-approved conditions: The secretary may remove or modify a
department-approved condition only if the secretary determines, on the basis of
substantial credible medical and scientific evidence, and after an opportunity
for review of the proposed removal or
modification by the medical advisory board, that the use of cannabis by
patients who have the approved condition would more likely than not result in
substantial harm to the patients’ health.
[7.34.3.8 NMAC - N, 2/27/2015; A,
2/29/2016]
7.34.3.9 QUANTITY OF USABLE CANNABIS THAT MAY BE POSSESSED
BY A QUALIFIED PATIENT OR PRIMARY CAREGIVER:
A. Maximum quantity: A
qualified patient and a qualified patient’s primary caregiver may collectively possess
within any three-month period a quantity of usable cannabis no greater than 230
total units.
For purposes of department rules, this quantity is deemed an adequate
supply. (For ease of reference: 230 units is equivalent to 230 grams, or approximately
eight ounces, of dried usable cannabis plant material.) A qualified patient and primary caregiver may
also possess cannabis seeds.
B. Calculation of units: For purposes of department rules, one unit of
usable cannabis shall consist of one gram of the dried leaves and flowers of the female cannabis plant, or 0.2 grams (200 milligrams) of THC for
cannabis-derived products.
C. Maximum THC content of concentrates: A qualified patient or primary caregiver shall
not possess a concentrated cannabis-derived product that contains greater than
seventy percent (70%) THC by weight.
D. Medical exception: A greater quantity of usable
cannabis, not to exceed 115 additional units, may be allowed, and a concentrated
cannabis-derived product with THC content greater than seventy percent (70%) by weight may be allowed, at the
department’s discretion, upon the submission of a statement by a medical
practitioner explaining why a greater number of units of usable cannabis, or a
higher concentration of THC in concentrated cannabis-derived product, is
medically necessary. Any such allowance
shall be reviewed for approval by the program’s medical director.
[7.34.3.9 NMAC - N, 2/27/2015]
7.34.3.10 QUALIFIED PATIENT AND PRIMARY CAREGIVER REGISTRY
IDENTIFICATION CARD APPLICATION REQUIREMENTS:
A. The department shall issue a
registry identification card to an applicant for the purpose of participating
in the medical cannabis program upon the written certification of the applicant’s practitioner and supporting application
documents. Certifications from certifying providers must be obtained
within 90 calendar days prior to the expiration of the patient’s registry
identification card.
B. The
department may require the submittal of a recent photograph from a patient
applicant and primary caregiver applicant.
C. Replacement card fee: A fifty dollar
($50) payment is required for replacement of registry identification card.
D. The
following information shall be provided in (or as an attachment to) the
participant enrollment form submitted to the department in order for a registry
identification card to be obtained and processed. An attached original medical provider certification for
patient eligibility form shall contain:
(1) the name, address, and telephone
number of the practitioner;
(2) the practitioner’s clinical
licensure;
(3) the patient applicant’s name and
date of birth;
(4) the medical justification for the
practitioner’s certification of
the patient’s debilitating medical condition, which shall include but not be
limited to a statement that, in the practitioner’s professional opinion, the
practitioner believes that the potential health benefits of the medical use of
cannabis would likely outweigh health risks for the patient;
(5) an attestation that the
practitioner’s primary place of practice is located within the state of New
Mexico;
(6) the practitioner’s signature and the date;
(7) the name, address, and date of birth
of the applicant;
(8) the name, address, and telephone
number of the applicant’s practitioner;
(9) a legible photocopy of the applicant’s New Mexico driver’s license or
comparable state of New Mexico or federal issued photo identification card
verifying New Mexico residence;
(10) documented parental consent, if
applicable, to the applicant;
(11) the applicant’s debilitating medical
condition;
(12) the length of time the applicant
has been under the care of the practitioner providing the medical provider certification for patient eligibility;
(13) the applicant’s signature and date;
and
(14) a signed consent for release of
medical information related to the patient’s debilitating medical condition, on a form provided by the medical
cannabis program.
E. Qualified minor: The department shall issue a registry
identification card to an applicant under the age of 18 for the purpose of
participating in the medical cannabis program upon the medical provider certification for patient eligibility from the
applicant’s practitioner and supporting application documents required under
this rule. The qualified minor parental
consent form shall require the following information to be provided:
(1) written documentation that the
applicant’s practitioner has explained the potential risks and benefits of the
use of cannabis to both the applicant and parent or representative of the
applicant; and
(2) written consent of the applicant’s parent or legal representative
to:
(a) allow the applicant's use of
cannabis and cannabis-derived products;
(b) serve as the applicant's primary
caregiver; and
(c) control the acquisition of the cannabis, dosage, and the frequency of the
use of cannabis and cannabis-derived products by the applicant.
F. Primary caregiver: The department shall issue a registry
identification card to a primary caregiver applicant for the purpose of
managing the well-being of up to four
qualified patients pursuant to the requirements of this rule upon the
completion and approval of the primary caregiver application form available
from the medical cannabis program. In
order for a registry identification card to be obtained and processed, the
following information shall be submitted to the medical cannabis program:
(1) New Mexico driver’s license or
comparable state of New Mexico or federal issued photo identification card
verifying that the applicant
is at least 18 years of age and is a resident of New Mexico;
(2) written approval by each qualified
patient, and written approval by at least one certifying practitioner for each
qualified patient, authorizing the primary
caregiver’s responsibility for managing the well-being of the patient(s) with
respect to the medical use of cannabis;
(3) the name(s), address(es), telephone
number(s), and date of birth(s) of the qualified patient(s);
(4) the name, address, and telephone
number of each qualified patient’s practitioner;
(5) the name, address, and telephone
number of the applicant primary caregiver;
(6) an attestation from the primary caregiver applicant that he or she is
a resident of the state of New Mexico;
(7) the applicant primary caregiver’s
signature and the date; and
(8) documentation of completed
nationwide and statewide background
checks conducted within six months of the application submission date.
G. Primary caregiver application
requirements: Criminal history screening
requirements.
(1) All primary caregiver applicants are required to consent to a
nationwide and statewide department of public safety (DPS) criminal history
screening background check. All
applicable application fees associated with the nationwide and statewide
criminal history screening background check shall be paid by the primary
caregiver applicant.
(2) Individuals convicted of a felony
violation of Section 30-31-20, 30-31-21, or 30-31-22 NMSA 1978, or a violation
of any equivalent out-of-state statute in any jurisdiction are prohibited from serving as a primary caregiver. If an applicant has been convicted of a
felony violation of Section 30-31-1 et
seq. NMSA 1978, other than Sections 30-31-20 through 30-31-22, and the
final completion of the entirety of the associated sentence of such felony
conviction has been less than three years from the date of the applicant’s
application as a primary caregiver, then the applicant is prohibited from being
a primary caregiver. The applicant and
qualified patient shall be notified of his or her disqualification from being a
primary caregiver. If the applicant has
been convicted of more than one felony violation of Section 30-31-1 et seq. NMSA 1978 or a violation of an
equivalent out-of-state statute in any jurisdiction, the applicant and
qualified patient shall be notified that the applicant is permanently
prohibited from being a primary caregiver and cannot be issued a medical use
cannabis registry identification card.
H. Primary caregiver requirements:
(1) A primary caregiver applicant shall be a resident of New Mexico.
(2) A qualified patient’s primary
caregiver shall be permitted to obtain and transport medical cannabis from a
licensed nonprofit to the qualified patient.
(3) The primary caregiver of a
qualified patient who holds a personal production license may assist the
qualified patient to produce medical cannabis at the designated licensed
location, identified on the personal production license. The primary caregiver may not independently produce medical
cannabis.
(4) A qualified patient shall only reimburse
their primary caregiver for the cost of travel, supplies, or utilities
associated with the possession of medical cannabis, or cannabis-derived
products by the primary
caregiver for the qualified patient. No
other cost associated with the possession of medical cannabis, or
cannabis-derived products by the primary caregiver for the qualified patient,
including the cost of labor, shall be reimbursed or paid.
All medical cannabis or cannabis-derived products possessed by a primary caregiver for a qualified patient are
the property of the qualified patient.
(5) A
qualified patient shall notify the medical cannabis program in the event that
the qualified patient ceases to retain the services of a primary
caregiver. A primary caregiver shall
promptly dis-enroll from the medical cannabis program at the time that the
primary caregiver’s services are no longer used by a qualified patient in their
care.
I. Certifying practitioner
requirements:
(1) A patient may not be certified by a practitioner who is
related to the patient within the second degree of consanguinity or the first degree of affinity, including a spouse,
child, stepchild, parent, step-parent, sibling, grandparent, mother-in-law,
father-in-law, son-in law, or daughter-in-law of the patient.
(2) A practitioner’s primary place of practice must be located within the state of New Mexico in
order for the practitioner to certify a patient’s eligibility.
(3) In
order to certify a patient’s application, a practitioner must have an actual
physician-client relationship with the applicant or qualified patient, and shall
conduct an in-person physical or mental evaluation of the applicant or
qualified patient prior to issuing a certification.
(4) A practitioner may be prohibited from certifying patient
applications for:
(a) failure to comply with any
provision of this rule;
(b) falsification of any material or
information submitted to the department;
(c) threatening or harming an employee of a producer, a medical practitioner, a
patient, or an employee of the department; or
(d) any determination by the
practitioner’s licensing body that practitioner has engaged in unprofessional
or dishonorable conduct.
J. Continuing education of certifying practitioners:
The department encourages certifying practitioners to obtain at least two
continuing medical education credit hours annually related to the medicinal use
of cannabis.
[7.34.3.10 NMAC - Rp, 7.34.3.9 NMAC,
2/27/2015]
7.34.3.11 REGISTRY IDENTIFICATION CARDS:
A. Department inquiry:
(1) The department may verify information on each application
and accompanying documentation by the following methods:
(a) contacting each applicant by
telephone or mail, or if proof of identity is uncertain, by requiring a
face-to-face meeting, and the production of additional identification
materials;
(b) when applicable, contacting a
minor’s parent or legal representative;
(c) contacting the New Mexico medical
board, the New Mexico board of nursing, board of pharmacy, or other licensing
agencies to verify that the practitioner
is licensed to practice and prescribe controlled substances in New Mexico and
is in good standing; and
(d) contacting the practitioner to
obtain further documentation to verify that the applicant’s medical diagnosis and medical condition qualify the applicant
for enrollment in the medical cannabis program.
(2) The department shall approve or deny
an application within 30 calendar days of receipt of the completed
application. A request by the department for additional information shall toll this
period until such time as the requested information is received.
B. Department registry identification card: The department shall issue a registry
identification card within five business
days of approving an application. A registry identification card shall include
the name, address, and date of birth of the qualified patient and primary
caregiver (if any), the date of issuance and expiration, date of the registry
identification card, and a code
maintained by the program which identifies the qualified patient or primary
caregiver. Unless renewed at an earlier
date, suspended, or revoked, a registry identification card shall be valid for
a period of one year from the date of issuance and shall expire at midnight on
the day indicated on the registry identification card as the expiration date. A registry identification card is the
property of the department, and shall be returned to the department upon the
disenrollment, suspension, or revocation of a qualified patient or primary
caregiver, and upon a change of address, or change of a qualified patient’s
primary caregiver.
C. Supplemental information requirement: A qualified patient or primary caregiver who
possesses a registry identification card shall notify the department of any change in the person's
name, address, qualified patient's primary caregiver, or change in status of
the qualified patient's debilitating medical condition, within 10 calendar days
of the change. Failure to provide
notification of any change may result in the immediate revocation of the
registry identification card and all lawful privileges provided under the act.
D. Registry identification card
application denial: The medical
director or designee shall deny an initial application if the application fails
to satisfy any requirement of this rule, if the applicant fails to provide the
information required, if the department determines that the information provided is false, if the patient does
not have a debilitating medical condition eligible for enrollment in the
program as determined by the medical director, or if the applicant’s certifying
provider(s) determine(s) that the use of cannabis by the patient would more
likely than not be detrimental to the patient’s health. The medical director or designee may also deny
an application if the applicant has threatened or harmed an employee of a
producer, a medical practitioner, a patient,
or an employee of the department. A
person whose application has been denied shall not reapply for six months from
the date of the denial, unless otherwise authorized by the department, and is
prohibited from all lawful privileges provided by this rule and act. A person whose application as a qualified
patient or primary caregiver has been denied for failure to complete an
application or failure to meet a submittal requirement of this rule may request
a record review to be conducted by the medical cannabis program.
E. Registry identification card renewal
application: Each registry
identification card issued by the department is valid for one year from the date of issuance. A qualified patient or
primary caregiver shall apply for a registry identification card renewal no
less than 30 calendar days prior to the expiration date of the existing
registry identification card in order to prevent interruption of possession of
a valid (unexpired) registry identification card. Certifications from
certifying providers must be obtained within 90 calendar days prior to the
expiration of the patient’s registry identification card.
F. Non-transferable registration of
registry identification card: A
registry identification card shall not be transferred by assignment or
otherwise to other persons. Any attempt shall result in the immediate
revocation of the registry identification
card and all lawful privileges provided by this rule and act.
G. Automatic expiration of registry
identification card by administrative withdrawal: Upon request of the qualified patient or
primary caregiver, the qualified patient or primary caregiver may discontinue the medical cannabis program
by an administrative withdrawal. A qualified patient or primary caregiver that
intends to seek an administrative withdrawal shall notify the licensing
authority no later than 30 calendar days prior to withdrawal and return the proof
of registry identification to the program.
H. Lost or stolen registry
identification card: The qualified
patient or primary caregiver shall report a lost or stolen registry
identification card to the medical cannabis program within five business days
after discovery. Upon notification
and receipt of the information change or replacement
card form provided by the medical cannabis program, and remittance of the
fifty dollar ($50) replacement fee, the medical cannabis program manager or
designee shall issue a new registry identification card. The patient or primary caregiver shall verify
the accuracy of all documentation in the most
recent application. Unless documentation
in the most recent application has changed, the qualified patient or primary
caregiver shall not be required to submit a new application.
[7.34.3.11 NMAC - Rp, 7.34.3.10 NMAC, 2/27/2015]
7.34.3.12 DENIAL OF AN INITIAL PATIENT OR PRIMARY CAREGIVER
APPLICATION:
A. Administrative review: All patient applicants or primary caregivers
whose initial application for a registry identification card has been denied
may request a record review from the
department.
B. Procedure for requesting informal
administrative review:
(1) An applicant given notice of an
application denial may submit a written request for an administrative
review. To be effective, the written request shall:
(a) be made within 30 calendar days, as
determined by the postmark, from the date of the denial notice issued by the
department;
(b) be properly addressed to the medical cannabis program;
(c) state the applicant’s name, address,
and telephone numbers;
(d) state the applicant’s proposed
status as a qualified patient or primary caregiver;
(e) if the applicant is a potential
primary caregiver, state the anticipated date of which service shall commence;
(f) provide a brief narrative
rebutting the circumstances of the application denial, and
(g) if applicable, provide supplemental
documentation from the applicant’s practitioner supporting the debilitating
medical condition as eligible for the program.
(2) If the applicant wishes to submit additional documentation for
consideration, such additional documentation must be included with the request
for an administrative review.
C. Administrative review proceeding: The administrative review proceeding shall be
a closed proceeding that is
limited to an administrative review of written application materials and
documents offered to verify eligibility. The administrative review proceeding
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.
The administrative review shall be conducted by the administrative
review committee. In cases where the
administrative review committee finds the need for additional or clarifying
information, the review committee shall request that the applicant supply such
additional information within the time set forth in the committees’ request.
D. Final determination:
(1) Content: The administrative review committee shall render a
written decision setting forth the reasons for the decision and the evidence
upon which the decision is based.
(2) Effect:
The decision of the administrative review committee is the final decision of the informal administrative review
proceeding.
(3) Notice:
A copy of the decision shall be mailed to the applicant.
E. Judicial review: Except as otherwise provided by law, there
shall be no right to judicial review of a decision by the administrative review committee.
[7.34.3.12 NMAC - Rp, 7.34.3.11
NMAC, 2/27/2015]
7.34.3.13 POSSESSION
OF USABLE CANNABIS:
A. A
qualified patient or primary caregiver shall ensure that that all cannabis, cannabis-derived products,
and paraphernalia are kept secure and out of reach of children.
B. A
qualified patient and primary caregiver shall ensure that all cannabis and
cannabis-derived products that are purchased from a licensed non-profit
producer remain in the package or container provided by the non-profit entity
when not in use. If the package or
container is damaged, the product label and any other identifying information
from the package or container shall be kept and remain with the cannabis or
cannabis-derived product upon transfer to another package or container.
C. A
qualified patient or primary caregiver may transfer cannabis and cannabis
derived products to an approved laboratory for testing purposes.
[7.34.3.13 NMAC - N, 2/27/2015]
7.34.3.14 MONITORING AND CORRECTIVE ACTIONS:
A. Monitoring:
(1) The department or its designee may perform on-site
assessments of a qualified patient or primary caregiver
to determine compliance with these rules. The department may enter the premises of a
qualified patient or primary caregiver during business hours for purposes of
monitoring and compliance. 24 hours
notice will be provided to the qualified patient or primary caregiver prior to
an on-site assessment except when the department has a reasonable suspicion to
believe that providing notice will result in the destruction of evidence or
that providing such notice will impede the department’s ability to enforce
these regulations.
(2) All qualified patients or primary
caregivers shall provide the department or the department’s designee immediate
access to any material and information necessary for determining compliance with these requirements.
(3) Failure
by the qualified patient or primary caregiver to provide the department access
to the premises or information may result in the revocation of the qualified
patient or primary caregiver enrollment and referral to state law enforcement.
(4) Any failure by a qualified patient
or primary caregiver to adhere to these rules may result in sanction(s),
including suspension, revocation, non-renewal, or denial of registration and referral to state or local law
enforcement.
(5) The department may refer complaints involving alleged criminal
activity made against a qualified patient or primary caregiver to the
appropriate New Mexico state or local authorities.
B. Corrective action:
(1) If violations of these requirements are cited as a result of
a monitoring visit, the qualified patient or primary caregiver shall be
provided with an official written report
of the findings within seven business days following the monitoring visit.
(2) Unless otherwise specified by the
department, the qualified patient or primary caregiver shall correct the
violation within five calendar days of
receipt of the official written report citing the violation(s).
(3) The violation shall not be deemed
corrected until the department verifies in writing within seven calendar days
of receiving notice of the corrective action that the corrective action is satisfactory.
(4) If the violation has not been
corrected, the program manager or designee may issue a notice of contemplated
action to revoke the enrollment of the qualified patient.
C. Suspension of enrollment without
prior hearing: If immediate action is required to protect
the health and safety of the general public, the qualified patient or primary
caregivers, the medical cannabis program manager or designee may suspend the
qualified patient or primary
caregiver’s enrollment in the medical cannabis program without notice.
(1) A qualified patient or primary
caregiver whose enrollment has been summarily suspended is entitled to an
administrative review not later than 30
calendar days after the enrollment is summarily suspended.
(2) An administrative review requested
subsequent to a summary suspension shall be conducted by the administrative
review committee.
(3) The administrative review committee shall conduct the administrative
review on the summary suspension by reviewing all documents submitted by both
the participant and the department.
(4) The administrative review is not an
adjudicatory hearing; rather, the sole issue in an
administrative review of a summary suspension is whether the individual’s
enrollment shall remain suspended pending a final administrative adjudicatory
hearing and decision.
(5) An enrollee given notice of summary suspension by the medical
cannabis program may submit a written request for an administrative review.
To be effective, the written request shall:
(a) be made within 30 calendar days, as
determined by the postmark, from the date of the
notice issued by the department;
(b) be properly addressed to the medical
cannabis program;
(c) state the requestor’s name,
address, and telephone numbers;
(d) provide a brief narrative rebutting
the circumstances of the suspension; and
(e) be accompanied by any additional
documentation offered in support of the request.
[7.34.3.14 NMAC - Rp, 7.34.3.12
NMAC, 2/27/2015]
7.34.3.15 PROHIBITIONS, RESTRICTIONS AND LIMITATIONS ON THE USE
OF CANNABIS BY QUALIFIED PATIENTS: Participation in the medical
cannabis program by a qualified patient or primary caregiver does not relieve
the qualified patient or primary caregiver from:
A. criminal
prosecution or civil penalties for activities not authorized in this rule and
act;
B. criminal
prosecution or civil penalties for fraudulent representation to a law
enforcement officer about the person’s participation in the program to avoid
arrest or prosecution;
C. liability
for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of cannabis or
cannabis-derived products; or
D. criminal
prosecution or civil penalty for possession, distribution, transfer, or use of
cannabis or a cannabis-derived product:
(1) in a school bus or public vehicle;
(2) on school grounds or property;
(3) in the workplace of the qualified
patient's or primary caregiver's employment;
(4) at a public park, recreation center, youth center, or other public place;
(5) to a person not approved by the
department pursuant to this rule;
(6) outside New Mexico or
attempts to obtain or transport
cannabis, or cannabis-derived products from outside New Mexico; or
(7) that exceeds the allotted amount of
usable medical cannabis, or cannabis-derived products.
[7.34.3.15 NMAC - Rp, 7.34.3.13 NMAC,
2/27/2015]
7.34.3.16 DISCIPLINARY ACTIONS AND APPEAL PROCESS:
A. Grounds for disciplinary action: Disciplinary action may be taken against a
qualified patient, patient-applicant, primary caregiver, or primary
caregiver-applicant. Disciplinary action
may include revocation, suspension, or denial,
summary suspension, summary revocation, and other action. Disciplinary action may be imposed for:
(1) failure to comply with or satisfy any provision of this rule;
(2) falsification or misrepresentation
of any material or information submitted to the department;
(3) failing
to allow or impeding a monitoring visit by authorized representatives of the
department;
(4) failure
to adhere to any acknowledgement, verification, or other representation made to
the department;
(5) failure
to submit or disclose information required by this rule or otherwise requested
by the department;
(6) failure
to correct any violation of this rule cited as a result of a monitoring visit;
(7) diversion of cannabis or a
cannabis-derived product, as determined by the department;
(8) threatening or harming a patient,
a medical practitioner, or an employee of the department;
(9) for primary caregivers: conviction of the primary caregiver of any of
the disqualifying convictions identified by department rule;
(10) for patients: failure of the patient to satisfy any
criterion identified as a prerequisite to
eligibility for a condition approved by the department;
(11)
for patients: if a certifying provider of the patient
determines that the use of cannabis by the patient would more likely than not
be detrimental to the patient’s
health; and
(12) any other basis identified in this rule.
B. Request for hearing: A qualified patient or primary caregiver who
is the subject of disciplinary action,
or an applicant who has received a notice of contemplated action to deny their
application for any reason other than failure to submit a completed application
or failure to meet a submittal requirement of this rule, may request a hearing
in writing. The appellant shall file the
request for hearing within 30 calendar days of the date the action is taken or
the notice of contemplated action is received. The request shall:
(1) be properly addressed to the medical
cannabis program;
(2) state the requestor’s name,
address, and telephone numbers; and
(3) include a statement of the issues
that the appellant considers relevant
to the review of the action.
C. Hearing process:
(1) All formal adjudicatory hearings held pursuant to this
regulation shall be conducted by a hearing examiner appointed by the secretary.
(2) Hearings shall be conducted in Santa
Fe, New Mexico, or, with the consent of the parties, at another location.
(3) 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.
(4) The hearing shall be recorded on
audiotape or other means of sound reproduction.
(5) Any hearing provided for in this rule may be held telephonically, with the
consent of the parties.
D. Scheduling: The department shall schedule and hold the
hearing no later than 60 calendar days from the date the department receives
the appellant’s request for hearing. The
hearing examiner may extend the 60 day time period for
good cause shown, or the parties may extend that period by mutual
agreement. The department shall issue
notice of the hearing, which shall include:
(1) a statement of the time, place, and nature of the hearing;
(2) a statement of the legal authority
and jurisdiction under which the hearing is to be held; and
(3) a short and plain statement of
the subject of the hearing.
E. Presentation of evidence: All
parties shall be given the opportunity to respond and present evidence and
argument on relevant issues.
F. Record of proceeding: The record of the proceeding shall include
the following:
(1) all pleadings, motions, and
rulings;
(2) evidence and briefs received or
considered;
(3) a statement of any matters officially noticed;
(4) offers of proof, objections, and
rulings thereon;
(5) proposed findings and conclusions; and
(6) any action recommended by the
hearing examiner.
G. Audio recording: A party may request a copy of the audio
recording of the proceedings.
H. Procedures and evidence:
(1) a party may be represented by a person licensed to practice
law in New Mexico or a non-lawyer representative, or may represent himself or
herself;
(2) the rules of evidence as applied
in the courts do not apply in these proceedings; any relevant evidence shall be admitted; irrelevant, immaterial, or unduly repetitious
evidence may be excluded;
(3) the experience, technical
competence, and specialized knowledge of the hearing examiner, the department
or the department’s staff may be used in the evaluation of evidence;
(4) an appellant’s failure to appear
at the hearing at the date and time noticed for the hearing
shall constitute a default.
I. Conduct of proceeding: Unless the hearing examiner determines a
different procedure to be appropriate, the hearing shall be conducted as follows:
(1) the appellant may present an
opening statement and the department may present an opening statement or
reserve the statement until presentation of its case;
(2) upon conclusion of any opening
statements, the appellant shall present
his or her case;
(3) upon the conclusion of the
appellant’s case, the department shall present its case;
(4) upon conclusion of either party’s
case, the opposing party may present rebuttal
evidence; and
(5) after presentation of the evidence
by the parties, the parties may present closing arguments.
J. Burden of proof: The appellant bears the burden of
establishing by a preponderance of the evidence that the decision made or
proposed by the department should be reversed or modified.
K. Continuances: The hearing examiner may grant a continuance
for good cause shown. A motion to
continue a hearing shall be made at least 10 calendar days before the hearing
date.
L. Telephonic hearings:
(1) any party requesting
a telephonic hearing shall do so no less than 10 business days prior to the
date of the hearing; notice of the
telephonic hearing shall be given to all parties and shall include all
necessary telephone numbers;
(2) failure of an appellant to provide
their correct telephone number or failure to be available at the commencement
of the hearing shall be treated as a failure to appear and shall constitute a
default;
(3) the
in-person presence of some
parties or witnesses at the hearing shall not prevent the participation of
other parties or witnesses by telephone with prior approval of the hearing
examiner.
M. Recommended action and final
decision:
(1) the parties may submit briefs including findings of fact and conclusions of law for
consideration by the hearing examiner;
(2) no later than 30 calendar days after
the last submission by a party, the hearing examiner shall prepare and submit
to the secretary a written recommendation of action to be
taken by the secretary; the
recommendation shall propose sustaining, reversing, or modifying the proposed
action of the department;
(3) the secretary shall issue a final
written decision accepting or rejecting
the hearing examiner’s recommendation in whole or in part no later than 30
calendar days after receipt of the hearing examiner’s recommendation; the final decision shall identify the final
action taken; service of the secretary’s
final decision shall be made upon the appellant by registered or certified
mail;
(4) the final decision or order shall be
made a part of the patient or primary
caregiver’s file with the medical cannabis program.
[7.34.3.16 NMAC - Rp, 7.34.3.14 NMAC,
2/27/2015; A, 2/29/2016]
7.34.3.17 EXEMPTION FROM STATE CRIMINAL AND CIVIL PENALTIES FOR
THE MEDICAL USE OF CANNABIS:
A. Possession
of, or application for, a registry identification card shall not constitute probable cause or give rise to
reasonable suspicion for any governmental agency to search the person or
property of the person possessing or applying for the card.
B. A qualified patient shall not be subject
to arrest, prosecution, or penalty in any manner by the
state of New Mexico or a political subdivision thereof for the possession of or
the use of medical cannabis if the quantity of cannabis, concentrates, or
cannabis-derived products does not exceed an adequate supply as defined by
rule.
C. A primary caregiver shall not be subject to arrest, prosecution, or penalty in
any manner for the possession of cannabis by the state of New Mexico, or a
political subdivision thereof, for the medical use by the qualified patient if
the quantity of cannabis, concentrates, or cannabis-derived products does not
exceed an adequate supply as defined by rule.
D. A qualified patient or a primary
caregiver shall be granted the full legal protections provided under the Lynn
and Erin Compassionate Use Act, Section 26-2B-1 et seq., NMSA 1978, by
the state of New Mexico if the qualified patient or primary caregiver is in possession of a valid registry
identification card. If the qualified
patient or primary caregiver is not in possession of a valid registry
identification card, the qualified patient or primary caregiver shall be given
an opportunity to produce the registry identification card before any arrest,
or criminal charges, or other penalties are initiated.
E. A practitioner shall not be subject
to arrest or prosecution, penalized in any manner, or denied any right or
privilege by the state of New Mexico, or political subdivision thereof, for recommending the medical use of
cannabis, or providing written certification for the medical use of cannabis
pursuant to this rule and the act.
F. Any property interest that is
possessed, owned, or used in connection with the medical use of cannabis, or acts incidental to such use, shall
not be harmed, neglected, injured, or destroyed while in the possession of New
Mexico state or local law enforcement officials. Any such property interest shall not be
forfeited under any New Mexico state or local law providing for the forfeiture
of property except as provided in the Forfeiture Act. Cannabis, cannabis-derived products,
paraphernalia, or other property seized from a qualified patient or primary
caregiver in connection with the claimed medical use of cannabis shall be
returned immediately upon the determination by a court or prosecutor that the
qualified patient or primary caregiver is entitled to the protections of the
provisions of this rule and the act, as may be evidenced by a failure to
actively investigate the case, a decision not to prosecute, the dismissal of
charges, or acquittal.
G. A person shall not be subject to
arrest or prosecution by the state of New Mexico, or political subdivision
thereof, for a cannabis-related offense for being in the presence of the medical use of cannabis as permitted under the
provisions of this rule and the act.
[7.34.3.17 NMAC - Rp, 7.34.3.15
NMAC, 2/27/2015]
7.34.3.18 QUALIFIED PATIENT, PRIMARY CAREGIVER, AND MEDICAL
PROVIDER CONFIDENTIALITY: The department shall maintain a confidential file containing the names and
contact information of the persons who have either applied for or received a
registry identification card, as well as the names and contact information of
certifying and diagnosing providers.
A. Patient applicants and qualified
patients: Names and contact information regarding a
qualified patient or patient-applicant shall be confidential and shall not be
subject to disclosure, except:
(1) to employees or agents of the department as necessary to perform the
duties of the department pursuant to the provisions of this rule and the act;
(2) to employees of New Mexico state or
local law enforcement agencies, for the purpose of verifying that a person is lawfully enrolled in the medical
cannabis program, or in the event that the medical cannabis program manager or designee
has reason to believe that a qualified patient or patient-applicant may have
violated an applicable law; and
(3) as provided in the federal Health
Insurance Portability and Accountability Act (HIPAA) of 1996 and applicable
state and federal regulations.
B. Primary caregivers and certifying
providers: Names and contact information regarding a
primary caregiver or medical
provider shall be confidential and shall not be subject to disclosure, except:
(1) to applicable licensing bodies, for
the purpose of verifying the practitioner’s licensure status, or in the event
that the medical cannabis program
manager or designee has reason to believe that a practitioner may have violated
licensing requirements or an applicable law;
(2) to employees of New Mexico state or
local law enforcement agencies, in the event that the medical cannabis program manager or designee has reason to believe
that a primary caregiver or medical
provider may have violated an applicable law; and
(3) as provided in the federal HIPAA of 1996 and applicable state and federal
regulations.
[7.34.3.18 NMAC - Rp, 7.34.3.16
NMAC, 2/27/2015]
7.34.3.19 DISPOSAL OF UNUSED CANNABIS:
Unused cannabis, concentrate, or cannabis-derived product in the
possession of a qualified patient or primary caregiver that is no longer needed for the patient’s needs may be disposed of
by transporting the unused portion to a state or local law enforcement office,
or by destroying the unused cannabis. Transfer
to a qualified patient, primary caregiver, or nonprofit entity is prohibited.
[7.34.3.19 NMAC - Rp, 7.34.3.17
NMAC, 2/27/2015]
7.34.3.20 PROGRAM
COOPERATION WITH LAW ENFORCEMENT:
A. The
medical cannabis program shall be accessible via telephone 24-hours per day for
state and local law enforcement to contact the program to determine the
enrollment status of a patient, consistent with this rule, and shall make
available a telephone number for this purpose. State and local law enforcement may obtain
this telephone number by contacting the medical cannabis program’s main number,
or by visiting the medical cannabis program website.
B. The medical cannabis program shall cooperate
with state and local law enforcement to provide education and training
regarding the Lynn and Erin Compassionate Use Act and department rules.
[7.34.3.20 NMAC - N, 2/27/2015]
7.34.3.21 SEVERABILITY: If any part or
application of these rules is held to be invalid, the
remainder or its application to other situations or persons shall not be
affected. Failure to promulgate rules or
implement any provision of these rules shall not interfere with the remaining
protections provided by these rules and the act.
[7.34.3.21 NMAC - Rp, 7.34.3.19
NMAC, 2/27/2015]
HISTORY OF 7.34.3 NMAC:
History of Repealed Material:
7.34.3
NMAC, Registry Identification Cards (filed 12/01/2008) repealed 12/30/2010.
7.34.3 NMAC, Registry Identification Cards (filed
12/16/2010) repealed 2/27/2015.
NMAC History:
7.34.3
NMAC, Registry Identification Cards (filed 12/01/2008) was and replaced by
7.34.3 NMAC, Registry Identification Cards, effective 12/30/2010.
7.34.3 NMAC, Registry Identification Cards (filed
12/16/2010) was replaced by 7.34.3 NMAC, Registry Identification Cards,
effective 2/27/2015.