Prescribing a Recommendation

Historically, marijuana has been classified as a Schedule I drug under the federal Controlled Substances Act of 1970. Specifically, marijuana with a THC level of 0.3 percent or higher is considered to have “no accepted medical use,” and has a high potential for abuse and physical or psychological dependence. Federally, marijuana use is illegal for any reason, except for research programs approved by the Food and Drug Administration (FDA). However, multiple states have enacted legislation permitting the use of marijuana medically, recreationally, or both.

The United States Supreme Court has consistently reinforced that the federal government has the right to regulate all aspects of marijuana, including use and criminalization. The growing medical marijuana industry, including cannabis dispensaries, is, therefore, neither registered with the federal government, nor approved by the FDA. Rather, the use of medical marijuana is governed by the individual states, as is the licensing of dispensaries.

According to the National Conference of State Legislatures, as of May 18, 2021, 36 states and four territories allow for the medical use of cannabis products. Many state programs require a medical examination by a physician who then “recommends” rather than prescribes the use of medical marijuana for use to assist with a variety of ailments, including cancer, HIV/AIDS, Parkinson’s Disease, post-traumatic stress disorder, neurological issues, and severe chronic or intractable pain.

Of note, as marijuana remains classified as a Schedule I drug by the federal government, physicians are not permitted to prescribe marijuana. Therefore, a “recommendation” is typically made in conjunction with the patient’s registration in the state program, thus allowing the patient to purchase from a dispensary. It is here where there is an intersection between medical marijuana and the workers’ compensation system. Generally, worker’s compensation benefits for injured workers include not only wage loss replacement, but also medical treatment for the injury.

In defense of claims, insurance carriers can take a reasonable position that medical marijuana is not a reimbursable cost under a workers’ compensation program for a variety of reasons, including—but not limited to—the following:

•    The use of medical marijuana is not prescribed by a physician.

•    As a result of not being prescribed by a physician, supporting documentation such as medical reports and associated billing likely does not exist.

•    Medical marijuana may not be included in the individual state’s medical payment fee schedules.

•    The payment and reimbursement of costs associated with medical marijuana use violate federal law.

Workers’ compensation programs in many states require the reasonable, necessary, and causally related medical treatment rendered to a patient under the prescription of a physician. In situations involving the use of medical marijuana, because a physician can only “recommend” rather than “prescribe,” a reasonable position is taken that the use does not satisfy state requirements for payment.

For treatment to be compensable, workers’ compensation programs typically require medical documentation, reports, and supporting billing documentation (such as a health care finance administration form), which details diagnoses, the nature of the treatment, billing codes, and costs. In the medical marijuana environment, this documentation oftentimes does not exist. Many states’ laws detail that payment for treatment is not required until all aspect of medical bill submission by the provider is satisfied.

Similarly, many states have a fee schedule wherein payment for treatment is determined and allows insurance carriers to adjust or re-price provider billing consistent with the schedule based upon the billing codes submitted by the provider through their billing documentation. Medical marijuana treatment may not necessarily be on a state’s fee schedule as a billing code for purposes of re-pricing provider billing. Additionally, as noted above, the documentation necessary for billing often does not exist due to the limitations upon a provider to prescribe treatment.

Of course, the underlying issue is the federal status of marijuana. It can be argued that the payment and reimbursement of costs associated with medical marijuana use violate federal law and, as a result, subjects an insurance carrier to payment that can result in a law violation.

Notwithstanding these arguments, workers’ compensation judges and referees have been known to award the reimbursement of out-of-pocket costs incurred by patients and claimants and ordered the payment of ongoing use of medical marijuana for a claim. It is submitted that these decisions may be contrary to state law in some cases, but are certainly in violation of federal law at the present time.

Ultimately, the laws involving medical marijuana continue to evolve, and its use in a workers’ compensation setting will likewise continue to evolve. As research continues to grow and the benefits (and potential harm) of long-term use of medical marijuana are further developed, coupled with changes in social norms, marijuana may ultimately be removed from the schedule of controlled substances. Only time will tell the ultimate impact on workers’ compensation.