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States continue to approve medical marijuana ―
could this open the door to use in workers’ comp?

by
Kevin Tribout, Adam Fowler
| Jul 31, 2019

As much of the nation is enjoying school break and summer vacations, many state legislatures have also taken their summer break, but not before finalizing many important issues including state budgets, expanding Medicaid programs and marijuana utilization. An issue once thought to be limited to states such as California and Washington, the debate on medical and recreational marijuana utilization has become a nationwide topic (see medical marijuana state map, below).

Voter and legislative support
As of July 2019, public policy and opinion on medical marijuana utilization have taken a significant turn in favor of expansion. Thirty-three states permit utilization of medical marijuana, in some form, for treating a common list of ailments including end-of-life care and cancer-related pain, among others. While the list of ailments can vary from jurisdiction to jurisdiction, there is a common thread of support across states.

Changing opinions
An interesting development in medical marijuana utilization is the expanding approval in jurisdictions where the prognosis, not that long ago, was not favorable. Florida, after many years of having voter-based initiatives fail, finally approved utilization of medical marijuana in 2016. And during the 2019 legislative session, Florida approved and enacted a law that allows medical marijuana patients to use smoking as a route of administration. In Oklahoma, the Legislature passed a law establishing the Oklahoma Medical Marijuana Authority in response to a recent voter-approved medical marijuana initiative.

Other states, including Arkansas, West Virginia and Utah, approved medical marijuana in recent years. And just this year, Tennessee considered but did not pass HB 637 and SB 486, which would have initiated provisions for utilization of medical marijuana. But even more notable is the passage of HB 1438 by the Illinois Legislature making Illinois the 11th state to approve the recreational use of marijuana.

Treatable conditions and impact on workers’ compensation.
While the treatment aspects of medical marijuana for various approved conditions can be debated by scientists, clinicians and doctors, the trend in approving usage is growing and, from a public policy standpoint, the list of conditions is expanding.

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In the past, policy efforts tended to stray away from workers’ compensation. Therefore, the clinical treatment impact was muted in workers’ comp. Thoughts on policy in this area are also evolving. Several states, either through legislative and/or judicial activity, have already approved using medical marijuana for treatment in workers’ compensation, such as New Mexico, New Jersey and New Hampshire. Meantime, other states (Hawaii and Maryland) carried legislation ​that continues policy discussions on utilizing medical marijuana as an acceptable work comp treatment.

Possible pathway to expand medical marijuana use into workers’ comp
Expansion of “approved conditions” is perhaps an indirect path which may increase medical marijuana utilization in workers’ compensation. States such as New York (Senate Bill 8987 in 2018) and others have expanded the approved conditions to now include chronic pain or pain where medical marijuana could be used as an alternative to opioids. In 2019, states such as Connecticut, Hawaii, New York and Maryland debated legislation which would expand the usage of medical marijuana to treat opioid dependency. And Colorado passed SB 13, permitting doctors to discuss with patients the option of using medical marijuana in lieu of opioids to treat specific conditions, which include PTSD and severe pain.

While these legislative efforts do not explicitly approve medical marijuana for workers’ compensation, they could open the door. Once conditions such as chronic pain and treatment in lieu of opioids become approved circumstances, a vast amount of work comp claimants could become eligible to be part of states’ medical marijuana programs and potentially have their pain treated with medical marijuana.

More states considering medical marijuana use in workers’ comp
As of mid-2019, legislative bodies in Hawaii, Illinois, Maryland, New Jersey and Vermont have considered bills that would endorse medical marijuana utilization as an approved treatment for workers’ compensation claims, thus requiring insurers and/or employers to pay for these approved treatments. Many of these states may not pass bills bringing chronic pain into the conditions covered under medical marijuana treatment, but they will continue to debate the issue moving forward.

Disconnect between states and the federal government, and effect on
workers’ comp benefits

Federally, marijuana is not an approved medication and therefore cannot be processed electronically via traditional and standard adjudication processes at the pharmacy. National Drug Codes (NDCs) are not assigned, and drug information aggregators do not supply processing information. The electronic payment or transfer of funds surrounding marijuana is not allowed.

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Our clinical team continues to evaluate the medical, public and evidence-based information available surrounding the use of marijuana and its component chemicals. However, as July 2019, our formularies do not address marijuana or its components. This, in part, is due to the fact that it cannot be processed at the point of sale.

Potential impact growing for workers’ comp
Policy surrounding medical marijuana continues to advance. The direct and indirect effect on workers’ compensation will certainly grow as states take a more open approach to medical marijuana utilization.

We strongly urge clients to prepare for the impact to their claims processes and procedures. As these policies progress, the Optum Workers’ Comp and Auto No-fault Government Affairs and Clinical Teams will continue to update our clients. Should you have questions, please contact our Government Affairs team at AskGovtAffairs@optum.com.

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