By: Art Lynch, Chief Executive Officer, Coventry Workers’ Comp Services
Regardless of any benefits that medical marijuana may offer chronic pain sufferers, employers are experiencing side effects that include headaches, anxiety and confusion. Medical marijuana’s legalization raises a dizzying host of questions about its impact in areas ranging from organizational drug policy to reimbursement. While it may be tempting to hold one’s breath to see how it all shakes out, employers should be talking with their workers’ compensation partners to develop a clear strategy to address these issues.
Growing acceptance among states
California’s Proposition 215 legalizing medical marijuana passed in 1996. Since then, other states have followed suit, and it seems to be snowballing. As of mid-March, 20 states and the District of Columbia have adopted laws legalizing the use of medical marijuana in some form; 15 more states have legislation pending. The Food and Drug Administration (FDA) has not approved medical marijuana, although it approved a synthetic form (currently listed as schedule III) for nausea in 1982.
Two states, Colorado and Washington, have legalized recreational use. Still, the federal Drug Enforcement Administration continues to list marijuana as a Schedule I controlled substance (denying a 2011 petition to reschedule the drug), along with heroin, peyote, LSD and Ecstasy. However, as recently as August the Justice Department indicated that it won’t challenge the state laws as long as state enforcement efforts effectively protect public safety, public health and other law enforcement interests from the harms posed by marijuana production, distribution or possession.
Alternative distribution channels
Medical marijuana’s Schedule I status and lack of FDA approval mean that pharmacists cannot legally dispense it and PBMs cannot process it. That could change, as states may desire to have a trusted resource for the drug. At the time of this writing, the National Association of Specialty Pharmacy (NASP) is conducting a survey to determine whether a national medical marijuana certification program might be feasible. Their belief is that pharmacists are the best healthcare professionals to ensure patients receive the most appropriate product with the correct efficacy and drug delivery system for their chronic condition.
Today, a patient needs a physician’s recommendation to obtain medical marijuana and, in most states, must register and obtain an ID. Qualifying patients procure the drug from a dispensary. In some cases, patients are authorized to grow a certain number of plants at home. Registration, purchase, cultivation… they all cost money. So one question is, who is going to pay?
Paying the piper?
With the growing number of states approving medical marijuana for a variety of conditions, it is increasingly likely that injured workers are going to use it, particularly for chronic pain. Most of the jurisdictions that have adopted medical marijuana laws so far have some limitations or exclusions exempting employers or payors from having to cover or reimburse for medical marijuana in workers’ comp cases. Some states also have provisions noting that workers’ compensation laws only cover FDA-approved drugs. At least one injured worker has challenged these exemptions, and it will be important to watch case law going forward.
In 2012, a California attorney self-procured marijuana after a work injury and subsequently sought reimbursement from his employer. Based on the medical examiner’s opinion that the treatment was reasonable and necessary, the workers’ compensation judge awarded reimbursement to the injured worker. The case was appealed and the Workers’ Compensation Advisory Board panel reversed the decision, citing the Health and Safety Code stating that, “nothing in this article shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”
Be proactive – not paranoid
Just as legal cases set precedents, so do organizational behaviors. That’s why employers, carriers and TPAs need to work with their legal counsel to review regulations in the states where they operate, clearly define their own policies and procedures regarding requests for the use of medical marijuana, and work with their bill review partners to implement them consistently. This can help lessen confusion and avoid inadvertent reimbursement of charges that may result in long-term consequences.
Looking beyond reimbursement issues, employers will also need to consider whether use of medical marijuana conflicts with any zero-tolerance policies they might have in place, as well as its implications for return-to-work and fitness for duty. It makes sense to talk with your case management partner to determine how nurse case managers are to handle injured workers who are using medical marijuana—regardless of who is paying for it. Some states prevent discrimination against medical marijuana users if they test positive during pre-employment screenings. Others, like Arizona, allow employers to deny employment to candidates who test positive for marijuana if the company receives federal funds for any aspect of its work.
When it comes to medical marijuana in the workers’ comp arena, the rapidly changing—and conflicting—regulatory landscape raises a lot of questions. Will the DEA reclassify the drug? Will pharmacists or physicians be able to dispense it legally or will the DEA shut down those who try? Will case law lean toward reimbursement? In a state that protects medical marijuana users against employment discrimination, what happens if a worker under the influence is injured on the job?
The answers today may not be valid tomorrow. Still, having current information and consistent, well-defined policies can help employers and payers minimize some of the side effects that legalization of medical marijuana might have on their workers’ comp programs.
About Art Lynch
Art Lynch joined Coventry Workers’ Comp Services in 2006 when Coventry Health Care acquired First Health, as Senior Vice President of Account Management and Strategy, overseeing account management and working with his team to develop and maintain strong lasting client relationships. He was named Chief Executive Officer in November of 2013 and is now accountable for the company’s overall revenue, operations, networks, pharmacy and care management products.
Prior to holding various leadership positions at First Health during his 16 year tenure, he led sales and operations for Ebtek, Inc., a firm based in Oak Brook, Illinois, specializing in providing human resources and insurance expertise to small businesses. Lynch received his undergraduate degree in Political Science and Psychology from Columbia University.
About Coventry Workers’ Comp Services
Coventry Workers’ Comp Services, a division of Aetna, is the leading provider of cost and care management solutions for property and casualty insurance carriers, (workers’ compensation and auto insurers), third-party administrators and self-insured employers. We design best-in-class products and services to help our partners restore the health and productivity of injured workers and insureds as quickly and as cost effectively as possible. We accomplish this by developing and maintaining consultative, trusting partnerships with our clients and stakeholders, built on a foundation of innovative and customized solutions that support the claims management process.
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