Handling workers compensation claims involving the use of medical marijuana as a claims treatment protocol is so new that employers and insurers are still confused about how the claims should be handled.
Issues of concern include dosing, coverage and reimbursement for marijuana, which remains illegal at the federal level.
Industry experts say there isn’t enough information about the drug as it relates to such issues as pain management, weaning and return to work — issues that have also plagued opioid prescribing in injury management for more than a decade.
“It’s a mess, it’s a problem,” said Brian Allen, Salt Lake City-based vice president of government affairs for the pharmacy solutions team at Enlyte Group LLC subsidiary Mitchell International Inc.
Although it is legal in 40 states, Mr. Allen that New Mexico is the only state with a compensation fee schedule for medical marijuana.
Nikki Wilson, senior director of clinical pharmacy services for Mitchell, said the comp industry appears to be focused on whether and how to cover or reimburse the drug before its treatment application is even fully tested.
“We̵7;re almost putting the cart before the horse a little bit where we have regulatory and legal hopes before clinical ones, so we’re trying to play catchup in a lot of ways to capture this,” Ms. Wilson.
Adding to the confusion is a legal landscape that is a patchwork of state laws and rulings; some state courts have ruled that workers comp must either cover or reimburse medical marijuana used by injured workers, but some laws prohibit or do not require reimbursement.
Six states allow refunds for medical marijuana claims while seven expressly prohibit refunds (see chart).
Employers and insurers have expressed concern about having to pay for a drug that is federally illegal.
Barak Kassutto, an attorney at the Philadelphia law firm Morgan & Akins who represents employers and insurers, challenged a Pennsylvania appeals court decision in March that ruled that insurers are not prohibited from reimbursing injured workers for medical marijuana.
“I think the issue here is the concern that the court is forcing employers and insurers to violate federal law,” he said.
As a result of the ruling, insurers must reimburse injured workers for the drug in cases where treatment is deemed necessary for recovery, according to Abington, Pennsylvania-based personal injury attorney Jenifer Kaufman, the sole practitioner who won the binding Commonwealth Court ruling in Fegley v. WCAB.
Bradley Andreen, a Pittsburgh-based comp defense attorney with the firm Rulis & Bochicchio LLC, said the issue could affect compensation settlements, particularly those with Medicare provisions. Because marijuana is still illegal at the federal level, Medicare won’t pay for the drug, which could put potential settlements in limbo, he said (see related story).
The issue is further complicated by Pennsylvania’s medical marijuana law, which says insurance companies are not required to “cover” the drug but says nothing about prohibiting reimbursement.
“If there’s no coverage for something, how is the carrier or employer going to reimburse it,” Andreen said. “It is part of the entire insurance principle. If you don’t have coverage for something, then they won’t pay for it. You don’t do something indirectly that you don’t do directly.”
“They’re using it to reduce their pain, not to get high,” attorney Kaufman said of injured workers and marijuana.
Issues like dosage and medical necessity are often a problem with drugs in general, she said.
“I think this problem is common with all medications,” she said. “There’s still going to be a learning curve for a lot of people at the bar and for insurance companies.”
And employers can still challenge the drug’s use in comps by filing for utilization reviews, Kaufman said.
Use reviews for medical marijuana can be difficult, Andreen said. In Pennsylvania, for example, there is no “prescribing” doctor, and the person who dispenses the medicine is a “merchant of marijuana.”
“There is no physician peer for the applicant or the (dispensary) vendor to do a utilization review,” Andreen said. “It’s basically the plaintiffs who decide what their medications are going to be. How do you subject that to a utilization review?”
Del Doherty, owner of Houston-based pharmacy benefits manager ProdigyRX, said providing reimbursement for a federally illegal substance like marijuana raises many concerns.
“What is the usual and customary price you charge for this?” he asked. “Are you only going to reimburse for edibles or even vape and smokeable products? There’s no standard for reimbursement. Just saying you have to pay for it is one thing. Now you just believe what people show on the receipt.”
Louise Esola contributed to this report.