New Mexico Register / Volume XIX, Number 23 / December 15, 2008
TITLE 7 HEALTH
CHAPTER 34 MEDICAL USE OF MARIJUANA
PART 3 REGISTRY IDENTIFICATION CARDS
7.34.3.1 ISSUING AGENCY: New Mexico Department of Health, Public Health Division.
[7.34.3.1 NMAC - N, 12/15/2008]
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. This rule addresses the
department’s actions in the prevention of non-medical marijuana use in an
effort to prevent abuse or misuse of the act and its purpose. All requirements
contained herein are necessary prerequisites to the state’s ability to
distinguish between authorized use under this act and unauthorized use under
the state’s criminal laws.
[7.34.3.2 NMAC - N, 12/15/2008]
7.34.3.3 STATUTORY AUTHORITY: The requirements set forth herein are promulgated by the secretary of the department of health, pursuant to the general authority granted under Section 9-7-6 (E) NMSA 1978, as amended, and the authority granted under Sections 24-1-2(D), 24-1-3(I) and 24-1-5, NMSA 1978, of the Public Health Act as amended, Section 53-8-1 et seq. NMSA 1978, and the Lynn and Erin Compassionate Use Act. Although federal law currently prohibits any use of marijuana, the laws of Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington permit the medical use and cultivation of marijuana. New Mexico joins this effort to provide for the health and welfare of its citizens. 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 - N, 12/15/2008]
7.34.3.4 DURATION: Permanent.
[7.34.3.4 NMAC - N, 12/15/2008]
7.34.3.5 EFFECTIVE DATE: 12/15/2008, unless a later date is cited at the end of a section.
[7.34.3.5 NMAC - N, 12/15/2008]
7.34.3.6 OBJECTIVE: The objective of this rule is to ensure the safe use and possession of marijuana for individuals living with debilitating medical conditions, and the safe possession and administration of marijuana 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 - N, 12/15/2008]
7.34.3.7 DEFINITIONS:
A. “Act” means the Lynn and Erin Compassionate Use Act.
B. “Adequate supply” means an amount of marijuana, derived solely from an intrastate source and
in a form approved by the department, 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 marijuana for a period of three (3) months. An adequate supply shall not exceed six (6) ounces of useable marijuana, and with a producer license only, four (4) mature plants and twelve (12) seedlings, or a three (3) month supply of topical treatment. An amount greater than six (6) ounces of useable marijuana may be allowed upon proof of special need as evidenced by a practitioner letter explaining why a larger dose is indicated. Any such allowance shall be reviewed for approval by a medical director designated by the department after consultation with the advisory board created under the act.
C. “Administrative review committee” means an intra-department committee appointed by the secretary, selected for the purposes of reviewing qualified patients or primary caregivers application denial, licensed producer denial, or the imposition of a summary suspension. The administrative review committee shall consist of the medical director, the medical cannabis program manager, a social worker, registered nurse and attorney.
D. “Administrative withdrawal” means the procedures for the voluntary withdrawal of a qualified patient or primary caregiver from the medical cannabis program.
E. “Adverse action” includes the denial of any application, immediate revocation of the qualified patient or primary caregiver’s registry identification card, licensed producer revocation, referral to state or local law enforcement and loss of all lawful privileges under the act.
F. “Applicant” means any person applying to participate in the medical use of marijuana program as a qualified patient, primary caregiver or licensed producer.
G. “Cannabis” see “marijuana.”
H. “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) admitted 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.
I. “Deficiency” means a violation of or failure to comply with a provision of these requirements.
J. “Department” means the New Mexico department of health.
K. “Division” means the public health division of the New Mexico department of health.
L. “Facility” means any building or grounds licensed for the production, possession and distribution of marijuana in any form.
M. “Intrastate” means existing or occurring within the state boundaries of New Mexico.
N. “License” means the document issued by the department pursuant to this rule granting the legal right to produce and distribute medical marijuana for a specified period of time not to exceed one (1) year.
O. “Licensed producer” means any person or entity licensed pursuant to Medical Use of Marijuana, Licensing Requirements for Producers, Production Facilities and Distribution, 7.34.4.1 to 7.34.4.19 NMAC (12/15/2008).
P. “Licensing Authority” means the medical use of marijuana program of the department.
Q. “Licensure” means the process by which the department grants permission to an applicant to produce or possess marijuana.
R. “Marijuana” means all parts of the plant cannabis sativa, family cannabinaceae, whether growing or not, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its resin.
S. “Mature plant” means a harvestable female marijuana plant that is flowering and is greater than twelve inches in height and twelve inches in diameter.
T. “Medical cannabis program” means the administrative body of the New Mexico public health division charged with the management of the medical marijuana program, including the issuance of registry identification cards, licensing of producers and distribution systems, administration of public hearings and administration of informal administrative reviews.
U. “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.
V. “Minor” means an individual less than eighteen (18) years of age.
W. “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 into the human body marijuana.
X. “Personnel record” means an individual personnel employment file of any employee of a licensed producer containing, but not limited to, the employee’s education, work history, training, licensure, certification, performance evaluation, salary, job title and description.
Y. “Policy” means a written statement of principles that guides and determines present and future decisions and actions of the licensed producer.
Z. “Practitioner” means a person licensed in New Mexico to prescribe and administer drugs that are subject to the Controlled Substances Act, Section 30-31-1 et seq. NMSA 1978.
AA. "Primary caregiver" means a resident of New Mexico who is at least eighteen (18) years of age and who has been designated by a qualified patient or the patient's practitioner as being necessary to take responsibility for managing the well-being of the patient with respect to the medical use of cannabis pursuant to the provisions of the Lynn and Erin Compassionate Use Act (26-2B-1 NMSA 1978).
BB. “Private entity” means a private, non-profit organization that meets the requirements under this rule for licensure as a producer and distributor of marijuana.
CC. “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 medical use of marijuana registry identification cards rule.
DD. “Record review” means an informal non-adversarial administrative review of written documentation submitted by an applicant who has been denied status as a qualified patient or a primary caregiver, one who has been denied a license to produce and distribute marijuana, or the process for expedited review of a summary suspension.
EE. “Registry identification card” means a document issued by the department which identifies a qualified patient authorized to engage in the use of marijuana 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 marijuana for the sole use of the qualified patient.
FF. “Representative” means an individual designated as the qualified patient’s agent, guardian, surrogate, or other legally appointed or authorized health care decision maker pursuant to the Uniform Health Care Decisions Act, Section 24-7A-1 et seq. NMSA 1978.
GG. “Secretary” means the secretary of the New Mexico department of health.
HH. “Secure grounds” means a facility that provides a safe environment to avoid loss or theft.
II. “Security alarm system” means any device or series of devices, 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 an unauthorized intrusion.
JJ. “Security policy” means the instruction manual or pamphlet adopted or developed by the licensed producer containing security policies, safety and security procedures, personal safety and crime prevention techniques.
KK. “Seedling” means a marijuana plant that has no flowers and is less than twelve (12) inches in height and less than twelve (12) inches in diameter. A seedling must meet all three (3) criteria set forth above.
LL. “Topical treatment” means a transcutaneous therapeutic marijuana extract formulation comprising of water, short carbon chains alcohol, dimethysulfoxide, polyethylene glycol, polypropylene glycol, glycerin, mineral oil and mixtures thereof.
MM. “Usable marijuana” means the dried leaves and flowers of the female marijuana plant, any mixture or preparation thereof, including ointments, but does not include the seeds, stalks, or and roots of the plant.
[7.34.3.7 NMAC - N, 12/15/2008]
7.34.3.8 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. The following information shall be provided in the participant enrollment form submitted to the department in order for a registry identification card to be obtained and processed.
(1) An attached original medical provider certification for patient eligibility form shall contain:
(a) the name, address and telephone number of the practitioner;
(b) the practitioner’s clinical licensure;
(c) the patient applicant’s name and date of birth;
(d) the medical justification for the practitioner’s certification of the patient’s debilitating medical condition;
(e) the practitioner’s signature and date;
(f) the name, address and date of birth of the applicant;
(g) the name, address and telephone number of the applicant’s practitioner;
(h) the name, address and date of birth of the applicant’s primary caregiver(s), if any;
(i) a reasonable xerographic copy of the applicant’s New Mexico driver’s license photograph or comparable state of New Mexico or federal issued photo identification card verifying New Mexico residence;
(j) documented parental consent, if applicable, to the applicant;
(k) the applicant’s debilitating medical condition;
(l) the length of time the applicant has been under the care of the practitioner providing the medical provider certification for patient eligibility;
(m) the applicant’s signature and date; and
(n) 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.
B. Qualified minor: The department shall issue a registry identification card to an applicant under the age of eighteen (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 marijuana to both the applicant and parent or representative of the applicant; and
(2) the applicant’s parent or representative consents to:
(a) allow the applicant's use of marijuana;
(b) serve as the applicant's primary caregiver; and
(c) control the acquisition of the marijuana, dosage and the frequency of the use of marijuana by the applicant.
C. 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 (4) 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) birth certificate verifying that the applicant is at least eighteen (18) years of age;
(2) written approval by the qualified patient(s) and the qualified patient(s)’ practitioner(s) authorizing responsibility for managing the well-being of a qualified patient(s) with respect to the use of marijuana;
(3) the name(s), address(es), telephone number(s) and date of birth of the qualified patient(s);
(4) the name, address and telephone number of the qualified patient’s practitioner
(5) the name, address, telephone number of the applicant; and
(6) the applicant’s signature and date.
D. Primary caregiver application requirements and prohibitions:
(1) Criminal history screening requirements.
(a) All primary caregiver applicants are required to consent to a nationwide and statewide 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.
(b) Individuals convicted of a felony violation of Section 30-31-20, 30-31-21, or 30-31-22 NMSA 1978 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 (3) 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 by registered mail of his or her disqualification from being a primary caregiver. If the applicant has been convicted of more than one (1) felony violation of Section 30-31-1 et seq. NMSA 1978, the applicant and qualified patient shall be notified by registered or certified mail that the applicant is permanently prohibited from being a primary caregiver and cannot be issued a medical use marijuana registry identification card.
(2) Prohibitions: A qualified patient shall only reimburse their primary caregiver for the cost of travel, supplies or utilities associated with the possession of medical use marijuana by the primary caregiver for the qualified patient. No other cost associated with the possession of medical use marijuana by the primary caregiver for the qualified patient, including the cost of labor, shall be reimbursed or paid. All marijuana possessed by a primary caregiver for a qualified patient is the property of the qualified patient.
[7.34.3.8 NMAC - N, 12/15/2008]
7.34.3.9 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, mail, or if proof of identity is uncertain, the department shall require 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 to verify that the practitioner is licensed to practice in New Mexico and is in good standing; and
(d) contacting the practitioner to obtain further documentation that the applicant’s medical diagnosis and medical condition qualify the applicant for enrollment in the medical use cannabis program.
(2) Upon verification of the information contained in an application submitted pursuant to this subsection, the department shall approve or deny an application within thirty (30) calendar days of receipt.
B. Department registry identification card: The department shall issue a registry identification card within five (5) business days of approving an application. A registry identification card shall contain an eight (8) digit number maintained by the division 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 (1) year from the date of issuance and shall expire at midnight on the day indicated on the registry identification card as the expiration date.
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 practitioner status, qualified patient's primary caregiver status, or change in status of the qualified patient's debilitating medical condition, within thirty (30) calendar days of the change. An extension shall be granted by the medical cannabis program coordinator upon the showing of good cause. Failure to provide notification of any change shall 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 application if the applicant fails to provide the information required, if the department determines that the information provided is false or if the patient does not have a debilitating medical condition eligible for enrollment in the program as determined by the medical director. A person whose application has been denied shall not reapply for six (6) 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 may request a record review.
E. Registry identification card renewal application: Each registry identification card issued by the department is valid for one (1) year from the date of issuance. A qualified patient or primary caregiver shall apply for a registry identification card renewal no less then thirty (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.
F. Non-transferable registration of registry identification card: A registry identification card shall not be transferred by assignment or otherwise to other persons or locations. 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 the qualified patient or primary caregiver shall 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 thirty (30) calendar days prior to withdrawal.
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 twenty-four (24) hours after discovery. An extension shall be granted by the medical cannabis program coordinator upon the showing of good cause. Upon notification, the medical cannabis program shall issue a new registry identification card. Unless documentation in the initial application has changed, the qualified patient or primary caregiver shall not be required to submit a new application.
[7.34.3.9 NMAC - N, 12/15/2008]
7.34.3.10 DENIAL OF AN INITIAL REGISTRY IDENTIFICATION CARD:
A. Record review: All qualified 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 a record review. To be effective, the written request shall:
(a) be made within thirty (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 a record review.
C. Record review proceeding: The review proceeding is intended to be an informal non-adversarial administrative review of written documentation. It shall be conducted by an administrative review committee designated for that purpose by the division. 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, sign and enter 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 by registered or certified mail to the applicant.
E. Judicial review: 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 such appeal.
[7.34.3.10 NMAC - N, 12/15/2008]
7.34.3.11 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. Twenty-four (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 license and referral to state law enforcement.
(4) Any failure to adhere to these rules documented by the department during monitoring may result in sanction(s), including suspension, revocation, non-renewal or denial of licensure and referral to state or local law enforcement.
(5) The department shall refer credible criminal complaints against a qualified patient or primary a 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 monitoring, the qualified patient or primary caregiver shall be provided with an official written report of the findings within seven (7) 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 (5) 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 (7) calendar days of receiving notice of the corrective action that the corrective action is satisfactory.
(4) If the violation has not been corrected, the department may issue a notice of contemplated action to revoke the qualified patient or primary caregiver license.
C. Suspension of license without prior hearing: In accordance with the Public Health Act, Section 24-1-5 (H) NMSA 1978, if immediate action is required to protect the health and safety of the general public, the qualified patient or primary caregivers, the department may suspend the qualified patient or primary caregiver license without notice.
(1) A qualified patient or primary caregiver whose license has been summarily suspended is entitled to a record review not later than thirty (30) calendar days after the license was summarily suspended.
(2) The record review requested subsequent to a summary suspension shall be conducted by the administrative review committee.
(3) The administrative review committee shall conduct the record review on the summary suspension by reviewing all documents submitted by both licensee and the department.
(4) The sole issue at a record review on a summary suspension is whether the licensee’s license shall remain suspended pending a final adjudicatory hearing and ruling.
(5)
a licensee
given notice of summary
suspension by the division may submit a
written request for a record review. To
be effective, the written request shall:
(a) be made within thirty (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 applicant’s name, address, and telephone numbers;
(d) provide a brief narrative rebutting the circumstances of the suspension, and
(e) additional documentation must be included with the request for a record review.
[7.34.3.11 NMAC - N, 12/15/2008]
7.34.3.12 SUMMARY SUSPENSION, REVOCATION AND APPEAL PROCESS:
A. Participation in a medical cannabis program by a qualified patient or primary caregiver does not relieve the qualified patient or primary caregiver from:
(1) criminal prosecution or civil penalties for activities not authorized in this rule and act;
(2) liability for damages or criminal prosecution arising out of the operation of a vehicle while under the influence of marijuana; or
(3) criminal prosecution or civil penalty for possession, distribution or transfers of marijuana or use of marijuana:
(a) in a school bus or public vehicle;
(b) on school grounds or property;
(c) in the workplace of the qualified patient's or primary caregiver's employment;
(d) at a public park, recreation center, youth center or other public place;
(e) to a person not approved by the department pursuant to this rule;
(f) outside New Mexico or attempts to obtain or transport marijuana from outside New Mexico; or
(g) that exceeds the allotted amount of useable medical use marijuana.
B. Revocation of registry identification card: Violation of any provision of this rule may result in either the summary suspension of the qualified patient’s or primary caregiver’s registry identification card, or a notice of contemplated action to suspend or revoke the qualified patient’s or primary caregiver’s registry identification card, and all lawful privileges under the act.
C. Grounds for revocation or suspension of license, denial of renewal application for license. A license may be revoked or suspended, and a renewal application may be denied for:
(1) failure to comply with any provisions of these requirements;
(2) failure to allow a monitoring visit by authorized representatives of the department;
(3) the discovery of repeated violations of these requirements during monitoring visits.
D. Request for hearing: A qualified patient or primary caregiver whose license has been summarily suspended, or who has received a notice of contemplated action to suspend or revoke, may request a hearing, in addition to a request for a record review, for the purpose of review of such action. The appellant shall file the request for hearing within thirty (30) calendar days of the date the action is taken or the notice of contemplated action is received. The request shall include the following:
(1) a statement of the facts relevant to the review of the action;
(2) a statement of the provision of the act and the rules promulgated under the act that are relevant to the review of the action;
(3) a statement of the arguments that the appellant considers relevant to the review of the action; and
(4) any other evidence considered relevant.
E. Hearing process:
(1) All formal adjudicatory hearings held pursuant to this regulation shall be conducted by a hearing examiner duly appointed by the secretary.
(2) Except for telephonic hearings, hearings shall be conducted in Albuquerque or, upon written request by an aggrieved person, in the place or area affected.
(3) All hearings held pursuant to this section shall be open to the public.
(4) The hearing shall be recorded on audiotape or other means of sound reproduction, or by a certified court reporter. The decision as to the type of recording shall be at the discretion of the department.
(5) Any hearing provided for in this rule may be held telephonically, in the interest of a speedy resolution.
F. The department shall schedule and hold the hearing as soon as practicable, however; in any event no later than sixty (60) calendar days from the date the department receives the appellant’s request for hearing. The hearing examiner shall extend the sixty (60) day time period upon motion for good cause shown or the parties shall extend the sixty (60) day time period by mutual agreement. The department shall issue notice of 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;
(3) a short and plain statement of the matters of fact and law asserted;
(4) notice to any other parties to give prompt notice of issues controverted in fact or law; and
(5) all necessary telephone numbers if a telephonic hearing shall be conducted.
G. All parties shall be given the opportunity to respond and present evidence and argument on all relevant issues.
H. Record of proceeding: The record of the proceeding shall include the following:
(1) all pleadings, motions and intermediate rulings;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections and rulings thereon;
(5) proposed findings and conclusions; and
(6) any action recommended by the hearing examiner.
I. A party may request a transcription of the proceedings: The party requesting the transcript shall endure the cost of transcription.
J. Procedures and evidence:
(1) Any party shall be represented by a person licensed to practice law in New Mexico or an individual appellant may represent him or herself.
(2) The rules of evidence as applied in the courts do not apply in these proceedings. Any relevant evidence shall be admitted and such evidence shall be sufficient in itself to support a finding if the evidence is reliable, regardless of the existence of any statutory or common law rule that shall make admission of such evidence improper in a civil action. Irrelevant, immaterial or unduly repetitious evidence shall be excluded at a party’s request or on the hearing examiner’s own initiative.
(3) Documentary evidence shall be received in evidence in the form of true copies of the original.
(4) Documentary and other physical evidence shall be authenticated or identified by any reasonable means that shows that the matter in question is what the proponent claims it to be.
(5) The experience, technical competence and specialized knowledge of the hearing examiner, the department or the department’s staff shall be used in the evaluation of evidence.
(6) Evidence on which the hearing examiner shall base his or her decision is limited to the following:
(a) all evidence, including any records, investigation reports and documents in the department’s possession of which the department desires to avail itself as evidence in making a decision that is offered and made a part of the record of the proceeding; and
(b) testimony and exhibits introduced by the parties.
K. The record shall include all briefs, proposed findings and exceptions and shall show the ruling on each finding, exception or conclusion presented.
L. A party to a hearing shall submit to the hearing examiner and to all other parties to the hearing all documents to be introduced at the hearing no later than five (5) business days from the scheduled hearing date to insure the hearing examiner and other parties receive the documents prior to the hearing.
M. Conduct of proceeding: Unless the hearing examiner reasonably determines a different procedure is appropriate, the hearing shall be conducted in accordance with the procedures set forth in this rule. The following procedures shall apply:
(1) the appellant shall present an opening statement on the merits and the appellee shall make a statement of the defense or reserve the statement until presentation of that party’s case;
(2) after the opening statements, if made, the appellant shall present its case in chief in support of the appellant’s petition;
(3) upon the conclusion of the appellant’s case, the appellee shall present its case in defense;
(4) upon conclusion of the appellee’s case, the appellant shall present rebuttal evidence;
(5) after presentation of the evidence by the parties, the appellant shall present a closing argument; the appellee then shall present its closing argument and the appellant shall present a rebuttal argument; and
(6) thereafter, the matter shall be submitted for recommendation by the hearing examiner.
N. Burden of proof: The appellant bears the burden of showing by a preponderance of the evidence that the decision made by the department or an agent of the department shall be reversed or modified.
O. Continuances: The hearing examiner shall not grant a continuance except for good cause shown. A motion to continue a hearing shall be made at least ten (10) calendar days before the hearing date.
P. Telephonic hearings:
(1) Any party requesting a telephonic hearing shall do so within ten (10) business days of the date of the notice. Immediately after the parties agree to conduct the hearing by telephone; notice of the telephonic hearing shall be made to all parties and shall include all necessary telephone numbers.
(2) Any party that has agreed to a telephonic hearing, but subsequently requests an in-person hearing shall do so in writing to the hearing examiner no later than ten (10) calendar days before the scheduled date of the hearing. The decision to grant or deny the request for an in-person hearing shall be at the discretion of the hearing examiner for good cause shown. The hearing examiner’s decision to grant or deny the hearing shall be issued in writing and shall include the specific reasons for granting or denying the request. Should the hearing examiner grant the request, the hearing shall be rescheduled to a time convenient for all parties. Should the hearing examiner deny the request, the telephonic hearing shall proceed as scheduled.
(3) The location or locations of the parties during the hearing shall have a speaker telephone and facsimile machine available so that all shall hear the proceedings and documents shall be transmitted between witnesses and the hearing examiner.
(4) The appellee shall initiate the telephone call. The appellant is responsible for ensuring the telephone number to the appellant’s location for the telephonic hearing is accurate and the appellant is available at said telephone number at the time the hearing is to commence. Failure to provide the correct telephone number or failure to be available at the commencement of the hearing shall be treated as a failure to appear and shall subject the petitioner to a default judgment.
(5) The in-person presence of some parties or witnesses at the hearing does not prevent the participation of other parties or witnesses by telephone with prior approval of the hearing examiner.
Q. Recommended action and final decision:
(1) At the request of the hearing examiner or upon motion by either party granted by the hearing examiner and before the hearing examiner recommends action by the secretary, the parties shall submit briefs including findings of fact and conclusions of law for consideration by the hearing examiner. The hearing examiner holds the discretion to request briefs or grant a motion to submit briefs on any point of law deemed appropriate by the hearing examiner. Briefs submitted shall include supporting reasons for any findings or legal conclusions and citations to the record and to relevant law. Should the hearing examiner request briefs or grant a party’s motion to submit briefs, the hearing shall be continued until the hearing examiner has given the briefs sufficient consideration and brings the hearing to a close. The hearing, however, shall be completed no later than forty-five (45) calendar days from the date of continuance.
(2) No more than thirty (30) calendar days after completion of the hearing, the hearing examiner shall prepare a written decision containing his or her recommendation of action to taken by the secretary. The recommendation shall propose to sustain, modify or reverse the initial decision of the department or the department’s agent.
(3) The secretary shall accept, reject or modify the hearing examiner’s recommendation no later than ten (10) calendar days after receipt of the hearing examiner’s recommendation. The final decision or order shall be issued in writing and shall include a statement of findings and conclusions and the reasons thereof, on all material issues of fact, law or discretion involved, together with the specific action taken to sustain, modify or reverse the initial decision of the department or the department’s agent. Service shall be made by registered or certified mail.
(4) The final decision or order shall be public information and shall become a part of the record.
[7.34.3.12 NMAC - N, 12/15/2008]
7.34.3.13 EXEMPTION FROM STATE CRIMINAL AND CIVIL PENALTIES FOR THE MEDICAL USE OF MARIJUANA: 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.
A. A qualified patient shall not be subject to arrest, prosecution or penalty in any manner for the possession of or the use of marijuana by the state of New Mexico, or political subdivision thereof, if the quantity of marijuana does not exceed an adequate supply.
B. A primary caregiver shall not be subject to arrest, prosecution or penalty in any manner for the possession of marijuana by the state of New Mexico, or political subdivision thereof, for the medical use by the qualified patient if the quantity of marijuana does not exceed an adequate supply.
C. A qualified patient or a primary caregiver shall be granted the full legal protections provided under 7.34.3.12 NMAC by the state of New Mexico if the qualified patient or primary caregiver is in possession of a registry identification card. If the qualified patient or primary caregiver is not in possession of a 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.
D. 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 use of marijuana or providing written certification for the use of marijuana pursuant to this rule and act.
E. Any property interest that is possessed, owned or used in connection with the use of marijuana, 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. Marijuana, paraphernalia or other property seized from a qualified patient or primary caregiver in connection with the claimed use of marijuana 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 act, as shall be evidenced by a failure to actively investigate the case, a decision not to prosecute, the dismissal of charges or acquittal.
F. A person shall not be subject to arrest or prosecution by the state of New Mexico, or political subdivision thereof, for a marijuana related offense for being in the presence of the use of marijuana as permitted under the provisions of this rule and act.
[7.34.3.13 NMAC - N, 12/15/2008]
7.34.3.14 QUALIFIED PATIENT AND PRIMARY CAREGIVER CONFIDENTIALITY: The department shall maintain a confidential file containing the names and addresses of the persons who have either applied for or received a registry identification card. Individual names on the list shall be confidential and not subject to disclosure, except:
A. to authorized employees or agents of the department as necessary to perform the duties of the department pursuant to the provisions of this rule and act;
B. to authorized employees of New Mexico state or local law enforcement agencies, but only for the purpose of verifying that a person is lawfully in possession of a registry identification card; or
C. as provided in the federal Health Insurance Portability and Accountability Act of 1996.
[7.34.3.14 NMAC - N, 12/15/2008]
7.34.3.15 DISPOSAL OF UNUSED MARIJUANA: Unused marijuana in the possession of the qualified patient or 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.
[7.34.3.15 NMAC - N, 12/15/2008]
7.34.3.16 ASSESSMENT REPORT: The department shall evaluate the implementation of the Lynn and Erin Compassionate Use Act and regulations issued pursuant to that act and provide a report to the Secretary of the department within one year of the effective date of these regulations. In performing its evaluation, the department shall focus on whether the needs of qualified patients are being met by the department’s administration of the act and whether there is a demonstrable need for a state run production and distribution facility. The department’s assessment report shall be issued every two years, shall be a public document, and must contain de-identified data upon which the assessment is based.
[7.34.3.16 NMAC - N, 12/15/2008]
7.34.3.17 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.
[7.34.3.17 NMAC - N, 12/15/2008]
HISTORY OF 7.34.3 NMAC: [RESERVED]