A Healthesystems publication

Winter 2016

Cannabis Conundrums: Making Sense of Tangled Marijuana Legislation

FAST FOCUS: The U.S. Drug Enforcement Administration (DEA) announced their decision this summer to uphold marijuana’s status as an illegal Schedule I substance, but growing state momentum for the medical use of marijuana has resulted in diverse regulations. The fundamental differences between state and federal policies make it challenging to ascertain the future of medical marijuana in workers’ compensation.

There has been much discussion regarding the use of medical marijuana in workers’ comp as an alternative therapy for certain medical conditions, including pain. Insurance companies in Minnesota, Maine, and Connecticut have issued reimbursements to injured worker claimants for medical marijuana,1-3 and in 2015, the New Mexico Supreme Court ruled in favor of reimbursing medical marijuana in workers’ comp claims.4

Currently, 25 states and D.C. allow for the comprehensive use of medical marijuana,5 but conflicts between federal and state regulation, as well as differences between states themselves, will make the management of medical marijuana difficult should it continue to permeate into workers’ compensation.

DIFFERENCES IN EXISTING STATE LEGISLATION

Qualifying Conditions
What medical conditions make a patient eligible for medical marijuana?

Most states that have legalized medical marijuana allow it to be used for the treatment of chronic pain, seizures, muscle spasms, and cancer, but some states include additional conditions like arthritis and post-traumatic stress disorder (PTSD). Furthermore, states such as California and Massachusetts allow physicians to recommend the drug for medical conditions as they see fit, and Maine and Ohio allow the public to petition for more conditions to be added to their state’s list of qualifying conditions.

Dosing and Days’ Supply
How much marijuana should a patient receive?

Connecticut is one of many states that sets a limit on how much marijuana a patient can possess (2.5 ounces of marijuana every 30 days), but states like Pennsylvania and Maryland use the more abstract language of “a 30-day supply,” which does not specify an amount. Meanwhile, Minnesota requires that patients discuss their condition and medical history with a pharmacist who then decides dosing and formulation. Several states allow for the home cultivation of medical marijuana (with varying limits to how many plants a patient can grow), where the patient is virtually self-dosing.

Formulations and Route of Administration
In what form will medical marijuana be given, and how will that affect the patient?

New York, Minnesota, Pennsylvania, and Ohio forbid the smoking of marijuana, and New York also bans edibles. Home cultivation in some states leaves administration up to the patient, but most states allow for vapors, smoking, tablets, tinctures, and liquids. Different routes of administration are just one variable that can impact the medicinal effects of marijuana in a patient, making it difficult to predict effectiveness.

Drug Sourcing
Where will patients’ marijuana come from?

Medical marijuana is primarily obtained through dispensaries, but in states like Ohio, marijuana can only be dispensed by a pharmacist in a retail store. Home cultivation raises issues of drug sourcing, and states vary on the level of quality assurance that medical marijuana must undergo.

Pricing and Reimbursement
How much will marijuana cost, and how is that processed?

Marijuana is paid for in cash since it is illegal for a federally-related banking system to process funds related to the sale of a federally illegal substance. Therefore, even in a scenario where medical marijuana is clinically acceptable, it cannot go through the same adjudication process as prescription drug therapies. Instead, the claimant must pay out-of-pocket and be retroactively reimbursed by the insurer. This removes the insurer’s ability to implement prior authorization protocols and other prospective strategies to manage the appropriateness and cost of therapy.

There is also limited visibility into marijuana pricing overall, making it difficult to determine appropriate cost benchmarks. Very few states have built-in measures to monitor pricing. New York, for example, requires dispensaries to divulge the costs of manufacturing, marketing and distribution to determine if prices are reasonable.

Workers’ Rights
How will workers under the influence of medical marijuana be treated in the work environment?

Many states, such as Ohio and Colorado, allow employers to terminate employees under the influence of medical marijuana, or who test positive in random drug screenings and post-injury drugs tests, in order to promote workplace safety. Some states can deny workers’ comp to those injured on the job if they are taking medical marijuana. However, states like Arizona and Minnesota have protective clauses in their legislation.

Research Roadblocks

The lack of evidence-based guidelines regarding the clinical management of medical marijuana further adds to the complexity of how this drug might fit into workers’ comp. Research restrictions surrounding marijuana have limited the scope of scientific knowledge that could inform such guidelines. To date, no large-scale randomized controlled human trials have been conducted in the United States that sufficiently establish the benefits and risks of marijuana use.

Historically, only research institutions that have completed an intensive, time-consuming application process that involves the Drug Enforcement Administration (DEA), the National Institute on Drug Abuse (NIDA) and the U.S. Food and Drug Administration (FDA) have been allowed to study marijuana.6

Many researchers do not have the time or resources to complete the application, and the DEA verifies that the majority of applications received do not fulfill application requirements.

With limited clinical insight available, physicians are often uncomfortable recommending medical marijuana because they do not know how it will impact the patient, or the specific role it may play in managing pain in the injured worker. When marijuana is recommended, it is often done so as a last resort when traditional therapies have failed and the potential benefits appear to outweigh the risks.

However, steps towards progress in clinical research are being undertaken.

Planting Seeds

Although the DEA recently announced their decision to uphold marijuana’s status as a Schedule I substance, they did update their policy to expand marijuana research. Previously, only institutional researchers could study marijuana, but now private entities, upon successfully completing the application process, can become DEA-registered to grow marijuana for strictly commercial endeavors funded by the private sector and aimed at drug product development. This means that pharmaceutical manufacturers in the United States can now conduct research.

The pharmaceutical industry likely has more resources that could be devoted to completing the application process than an institutional research team, and this may foster greater scientific knowledge surrounding marijuana, potentially informing best practices and policies. However, it is unclear to what extent the pharmaceutical industry will carry out such research, especially as the profitability of medical marijuana is yet to be fully determined when compared to existing therapies. In the case of pain management drugs, it is unknown whether medical marijuana would be profitable for pharmaceutical companies to pursue when compared to traditional pain management drugs, such as opioids.

Regardless, because any new research initiatives will take a great amount of time, we are likely to stay within the current paradigm for the foreseeable future.

Reaping What We Sow

Planning today for the future of medical marijuana is critical for industry leaders. Although the DEA has decided not to reschedule marijuana at this time, they did announce that they may reconsider such a decision at a future date. In the meantime, there is individual state policy to consider. In the presence of so much new and impending legislation, eventually the workers’ comp industry must have the agility to incorporate medical marijuana protocols into existing claims management infrastructures.

Determining best practices will require significant education and input from all stakeholders as the status quo continues to evolve. There are many questions yet to be answered from clinical, policy, and workplace perspectives.

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SOURCES

1 -Goodman E. Attorney: comp carrier pays for medical cannabis in a first for Minnesota. WorkCompCentral. May 3, 2016. https://www.workcompcentral.com/news/story/id/be104d33182cdbeb8717d1a1bd473a8ad9882247
2 -Goodman E. Workers’ comp board approving reimbursement for medical pot. WorkCompCentral. May 9, 2016. https://www.workcompcentral.com/news/story/id/d5b0a73d9f5230b928ab1403bd40d4642dce077b
3 -Ceniceros R. Cannabis reimbursement trend grows. Risk & Insurance. June 24, 2016. http://www.riskandinsurance.com/cannabis-reimbursement-trend-grows/
4 -Maez v. Riley Industrial. 2015-NMCA-049 – 347 P.3d 732 - 54/29/21
5 -State Medical Marijuana Laws. National Conference of State Legislatures web site. http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx. Published July 20, 2016. Accessed August 16, 2016
6 -Rosenberg C, Burwell SM, Botticelli M. Joint Response Memorandum from DEA, U.S. Department of Health and Human Services, and Office of National Drug Control Policy to Marijuana Inquiries from Senator Elizabeth Warren. Published April 4, 2016. http://www.warren.senate.gov/files/documents/2016-4-4_response.pdf
7 -DEA announces action related to marijuana and industrial hemp. Drug Enforcement Administration website. https://www.dea.gov/divisions/hq/2016/hq081116.shtml Published Aug 11, 2016
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