With the surge in states permitting the use of medical marijuana, workers compensation payers are forced to grapple with questions for which they have limited or no guidance, including how much cannabis treatments should cost, what the proper dosages are and how marijuana usage will be monitored, experts say.
In the most recent legislative activity, a bill in Maryland — S.B. 854 — passed the state’s Senate on Monday and is now heading to its House of Delegates for consideration, while Hawaiian lawmakers in February tabled both S.B. 1523 and H.B. 1534 — identical bills proposed in January that were opposed by insurance groups.
In the courts, the outcome of disputes regarding the compensability of medical marijuana for pain treatment for injured workers has been mixed. In 2018, the New Jersey Division of Workers' Compensation in a ruling directed comp payers to cover marijuana for injured workers. In Maine in 2017, the state Supreme Court ruled the opposite. More recently, the Supreme Court of New Hampshire on March 8 ruled that a workers compensation appeals board erred when it denied medical marijuana reimbursement for an injured worker, remanding the case back to the lower court.
Experts say comp payers know they are or soon will be on the hook to cover marijuana for injured workers, but the field is muddied with questions: What are the actual costs? What is the dosage? How is it going to be monitored?
“Dosages are part of the problem,” said Dr. Joseph Pachman, Tarrytown, New York-based national medical director of workers compensation claims in the managed care department at Liberty Mutual Insurance Co. “There are no dosages, and that makes it more complicated from the medical perspective.”
“There is no standardization at all, and that is one of the biggest problems with it,” said Dr. Teresa Bartlett, Troy, Michigan-based senior vice president of medical quality for third-party administrator Sedgwick Claims Management Services Inc. “It cannot be prescribed by a physician” as with other drugs — a prescription that comes with a dose and instructions — because it is still a Schedule I illegal drug per the U.S. Food and Drug Administration.
Lawmakers and voters in 32 states have approved medical marijuana for patients, but studies on medically appropriate dosing and efficacy of medical marijuana have lagged behind states’ acceptances because of the federal stance that puts marijuana in the same category as heroin and cocaine.
In most states, the acceptable forms of medical marijuana aren’t regulated, yet some states have limited its use for certain ailments and have limited which components of the marijuana plants are acceptable. Alabama and Mississippi, for example, limit marijuana use to certain kinds of chemicals and ailments, such as for epilepsy patients. California and Oregon laws are more liberal in use and forms. Other states — such as Oklahoma — have yet to create limitations, according to the Washington, D.C.-based National Conference of State Legislatures.
This means the injured worker, with only the recommendation of a physician, in most states is choosing the method of ingesting medical cannabis — from capsules and creams to plants and topical oils — with little oversight, experts say.
The injured worker then seeks products from a dispensary and files for reimbursements from the payer, according to Brian Allen, Salt Lake City-based vice president of government affairs for Mitchell International Inc., a technology firm that manages pharmacy transactions, among other tasks in workers comp.
“I am not aware of any circumstance where an insurance carrier or employer is providing reimbursement directly to a dispensary,” he wrote in an email to Business Insurance.
A spokeswoman for Coventry Workers’ Comp called the landscape “tricky” and “payers are responsible for the compensability decisions,” she wrote in an email to Business Insurance, but she did not provide details on how to go about paying or overseeing the coverage of medical marijuana.
“Medical marijuana plays by its own rules, and the rules are often set by the injured worker and not by the payer, which is unique to workers comp,” said Mark Pew, Atlanta-based senior vice president of product development and marketing for pharmacy benefits manager Preferred Medical, who has been tracking marijuana’s emergence in comp circles over the past several years.
In most states, doctors “can only validate that a person has a condition that the state would allow them to obtain it,” said Dr. Bartlett. “You (then) have no idea the volume, the dosage, the intensity, the way in which it is used: Will it be smoked? Vaped? Eaten? In drops? In gummy bears?”
Costs are another conundrum, according to experts.
To date, New Mexico is the only state to include medical marijuana on its fee schedule for workers compensation: $12.02/unit (1 gram of dry weight, up to 230 units per calendar year, with a maximum reimbursement of $11,045 per year. Dr. Bartlett called the maximum a “huge amount.”
Several comp payers declined to comment on reimbursements for medical marijuana or how payments are processed in what is an all-cash business. Banks decline to work with medical marijuana dispensaries likely because they are regulated by the federal government, according to experts. “Most payers will not go on the record as far as reimbursement and I’m not sure if it’s because it’s still illegal,” said Mr. Pew. Liberty Mutual’s medical experts evaluate medical marijuana claims on a case-by-case basis. “It really is a small percentage of our (claims) inventory where this has been an issue,” said Dr. Pachman. “We take each case on its own merits.” A spokesman for Liberty Mutual said costs are not a factor and that “we would manage this and the cost of this as we would any other treatment” for an injured worker.
Louise Esola - Business Insurance.
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