Medical Marijuana and Reimbursement

Medical marijuana, at one time highly doubted and hotly debated, is now a fast-growing reality. Currently 23 states and the District of Columbia provide limited legal protections from arrest for authorized patients who use cannabis with a doctor’s recommendation. Another 7 states have legislation pending.

To qualify for a medical marijuana ID card, which is necessary for access to a medical marijuana dispensary, a patient must have a specific diagnosis. Those qualifying conditions vary by state. Conditions that medical marijuana can be used for include cancer, glaucoma, HIV/AIDS, Parkinson’s disease, multiple sclerosis, epilepsy, seizures, wasting syndrome, Crohn’s disease and PTSD.

Medical marijuana may also offer an effective pain-management alternative to expensive and addictive opioids. A growing body of peer-reviewed medical studies have shown marijuana is useful as an adjunct or substitute for prescription opioids, leading to greater pain relief, reduced use of opioids, lower incidence of opioid tolerance, improvements in functional status and reduced risk for addiction.

The State-Federal Conflict

Despite state laws legalizing use, the United States Food and Drug Administration (FDA) has not approved medical marijuana in any way. The FDA and the American Medical Association remain opposed to the medical use of marijuana without FDA testing.

Cannabis remains illegal for prescribing (it is considered a Schedule 1 controlled substance); doctors may only recommend marijuana for medical purposes. Marijuana’s Schedule 1 status also means possession and distribution remain illegal under federal law.

The federal law is what creates confusion when a workers’ comp patient with a state-authorized medical marijuana card submits a claim for reimbursement of cannabis. An article in Risk & Insurance points out that employers are concerned about whether paying for medical marijuana could be a violation of federal law.

States are having to muddle through these conundrums on their own. For the third time, a New Mexico court, reported on in Claims Journal, decided that medical marijuana is “reasonable and necessary medical care” and, if a worker’s compensation patient has a valid medical marijuana card, the payor is responsible for the cost. According to the article, Judge James Wechsler “pointed to a 2013 U.S. Department of Justice memo that says when it comes to medical marijuana, the federal government would generally defer to state and local authorities.”

A decision in a Colorado court ruled in favor of federal law and an employer’s ability to disallow use of medical marijuana in a drug-screen situation. In that case, an employee was fired for failing a random drug test due to off-duty medical marijuana use for leg spasms related to quadriplegia.

“The decision came down clear — it is illegal federally,” said Denise Gillen-Algire, director of managed care and disability for corporate risk at Safeway Inc., and moderator of a session on marijuana laws at the 2015 National Workers’ Compensation and Disability Conference & Expo. “Employers continue to have the right to have zero-tolerance policies regardless of the ADA, and because marijuana is still illegal federally, you can’t enforce the ADA under something that is illegal.”

Laws in 3 other states (Arizona, Delaware and Minnesota), however, do prohibit employers from firing an employee who tests positive for cannabis if they hold a valid medical marijuana card. Employers who have operations in more than one state will, therefore, need to review the local laws and tailor employment policies for each of their locations.