Medical Marijuana and Workers’ Compensation - The Impact of Potential Federal Reclassification
Further court decisions, individual state administrative actions and differing medical opinions have all added to the ongoing confusion over the conflict that exists between federal law and the changing legal status of marijuana in certain states. (See one such example in the Colorado Supreme Court decision Coats v. Dish Network.)
Although 23 states and the District of Columbia have legalized the use of medical marijuana for certain medical conditions, including chronic pain, the items below remain barriers to its possible entry into mainstream usage on workers’ compensation claims.
- Medical marijuana has not been endorsed or approved by the FDA.
- Issues are unresolved with regard to dosing and distribution, given the drug’s inconsistent potency.
- The American Medical Association (AMA) and other such organizations have not supported its use as a medical treatment option.
- Pharmacy Benefit Managers are unable to dispense or bill without a National Drug Code (NDC).
- Marijuana is not included as one of the “accepted medical services” under most WC Acts and insurers are not required to reimburse for it, even in most of the states in which it has been legalized.
- Marijuana remains classified by the federal government as a Schedule I drug under the Controlled SubstanceAct (CSA).
Schedule 1 Drug Classification
The most significant of these barriers is the Schedule I classification at the federal level, which makes possession of marijuana a federal crime. A Schedule I drug is considered to have a high potential for abuse, no recognized medical use, and a lack of accepted safety. Other Schedule I drugs include heroin, LSD, and Ecstasy. Schedule II drugs, which include oxycodone and hydrocodone, also have a high potential for abuse but have accepted medicinal use. Medicines such as cough syrup with codeine and Ambien are listed under Schedule III and IV, respectively. Proponents who favor marijuana over the use of opiates for chronic pain have argued that it should be reclassified to Schedule II or lower.
To date, having a Schedule I classification has hampered large-scale testing and research. While any real benefit remains unknown, the current lack of definitive medical evidence is a barrier to adoption. The Drug Enforcement Administration (DEA) regulates the handling of all items deemed controlled substances under the CSA, including those used for research purposes. While the DEA has recently relaxed some of the regulatory requirements with regard to research protocol involving cannabidiol (CBD), a marijuana plant extract, a reclassification of marijuana to Schedule II or lower would remove further limitations and allow such research to begin on a much larger scale. The FDA approval process would require clinical trials in hundreds to thousands of human subjects to determine the benefits and risks of a possible medicinal use.1
An eventual FDA approval of medical marijuana would also be a boost to the marijuana pharmaceutical industry, which is already gearing up for a potential $35 billion+ market. As more research is then undertaken, issues such as dosing consistency are likely to be addressed. With the resulting economic pressure on state legislators and public sentiment, which continues to grow more favorably toward legalization, the use of medical marijuana in workers’ compensation would appear to be inevitable.
This leads to the question of what is the likelihood of reclassification. In addition to marijuana advocacy organizations, there have been signs of some support in both Congress and the Senate.
- In February 2014 a bipartisan group of 18 Congress members sent President Obama a letter requesting marijuana be reclassified to Schedule III or lower.
- In February 2015 the Regulate Marijuana Like Alcohol Act was introduced in the House, which proposes to direct the Attorney General to remove marijuana from all schedules under the Controlled Substances Act.
- In March 2015 the CARERS Act was introduced in the U.S. Senate, which proposes to reclassify marijuana to Schedule II, recognizing “accepted medical use.”2
While possession of marijuana is a federal crime under its current Schedule I classification, the U.S. Department of Justice has made it known that it will not enforce federal penalties in those states that have legalized it in any form.3 Other variables with regard to reclassification include the attitude of a new presidential administration taking office in 2017 or the possible Obama administration's decision to reclassify via Executive Order before its term is over.4 The recent easing of research regulations by the DEA may be a further indication of the direction that the federal government may be taking.
Some states have taken further steps on their own, most notably in New Mexico where the New Mexico Workers' Compensation Administration has proposed medical marijuana reimbursement rules for workers' compensation payers. This was a response to two separate decisions within the past year in which a court has ruled that an employer must reimburse an injured worker for the purchase and use of medical marijuana as treatment for a work-related injury. Other activity includes a push by claimant attorneys in Minnesota for similar workers' compensation reimbursement rules in light of a health commissioner in that state deciding to include intractable pain as a condition for treatment via medical marijuana.5
More states may eventually legalize medical marijuana, creating additional pressure to reclassify marijuana at the federal level. However, at this time it remains classified as an illegal drug, and workers’ compensation policies typically follow federal law. Workers’ compensation payers can deny claims for medical marijuana (in most jurisdictions) and should work with service providers to establish and enforce policies. While doing so, all carriers should continue to monitor state and federal legislation and review procedures as further developments in this area emerge. For more information about specific state statutes, please see www.norml.org.
Members from the Gen Re Workers’ Comp team will be attending the following industry meetings. Please contact your Gen Re rep if you will be there too!AmComp Annual Meeting
April 14 & 15, 2016
Mandalay Bay Hotel & Casino
Las Vegas, NV
NCCI Annual Issues Symposium
May 5 & 6, 2016
Hyatt Regency Grand Cypress Resort
AASCIF Annual Conference
July 23 – 27, 2016
Little America Hotel
Salt Lake City, UT