The legalization of marijuana in multiple states across the country for medical use is generating conversation – and creating challenges – among all levels of stakeholders in the workers’ compensation and auto no-fault industries.
While marijuana and/or CBD oils are legal for medicinal purposes in 37 states and Washington, DC, it is still illegal at the federal level. The federal government classifies marijuana as a Schedule I substance. Schedule 1 substances are considered to be the most dangerous substances with potentially severe psychological or physical dependence, no accepted medical use, and a high potential for abuse. Other Schedule I substances include heroin and LSD.
As interest in the use of medical marijuana grows, the research to explore the clinical safety concerns and potential therapeutic benefits of medical marijuana continues and federal and state legislative policy actions continue to be introduced.
Impact on workers’ compensation claims
Because of its Schedule 1 classification, there is no national drug code (NDC) for marijuana. This means pharmacy benefit managers can neither process nor electronically adjudicate prescription transactions using current pharmacy industry standards.
Another concern is when an injured person receiving medical marijuana returns to work. Most employers have anti-drug or sobriety standards. This is of particular concern with manual labor and safety-sensitive jobs where the residual effects of marijuana could cause harm.
Dispensing and adjudicating medical marijuana is another barrier in workers’ compensation as medical marijuana cannot be dispensed through a pharmacy – only via dispensaries. Plus, it may not be adjudicated electronically due to federal banking laws making it a cash-only business and requiring claimant reimbursement.
Clinically, there has been a lack of FDA-quality trials confirming the value of medical marijuana in treating medical conditions. Evidence-based guidelines, such as ODG, do not recommend marijuana for treating pain. In fact, the treatment guideline consensus is that use of marijuana for non-life threatening conditions is likely not warranted or recommended.
When it comes to safety, quality control and grading standards have not been implemented to systematically verify the safety and potency of marijuana. Plus, with its use, there is increased risk of potential drug-drug interactions, especially combined use with other psychoactive substances. All of these result in a significant barrier to safe prescribing and dispensing processes.
Policy history, updates and actions
The use of marijuana for medicinal purposes at the federal level has been illegal since 1970, when Congress passed and President Nixon signed into law the Controlled Substances Act (CSA). CSA classified marijuana as a Schedule I substance.
And, since it was signed into law, there have been numerous efforts to reclassify marijuana as a Schedule II substance in an attempt to decriminalize the use of marijuana for medical purposes at the federal level. None of these efforts have been successful to date.
But, medical marijuana is gaining ground in workers’ compensation agencies as acceptable treatment for workers’ compensation injury-related pain and PTSD. Per the following map, you can see the number of states that have taken action on the medical and recreational use of marijuana.
Medical and Recreational Marijuana
Medical use of marijuana currently prohibited with legalized usage of cannabidiol (CBD) for limited purposes
Legalized medical marijuana
Legalized recreational and medical marijuana
Medical use of marijuana
Source: ProCon.org *Includes workers’ comp fee schedule reimbursement for medical marijuana. Current as of July 2021.
Since marijuana remains a Schedule I substance, Centers for Medicare and Medicaid Services (CMS) will not provide payment for expenses related to the use of medical marijuana. Consequently, even if an authorized medical provider has appropriately and legally prescribed medical marijuana pursuant to that state’s law, because Medicare will not allow for and pay for such care, CMS will not allow for marijuana in a Medicare Set aside.
Instead, Medicare may require either previously prescribed or other similar medication, which could be significantly more costly to fund.
The Optum perspective
Following a review of the latest information and studies on marijuana, the Optum clinical leadership team does not support the use of marijuana (medical or recreational) and/or cannabidiol products in workers’ compensation and auto no-fault claims for the vast majority of injured persons.
In developing our injury-based medication plans and formularies, we rely upon evidence-based medicine and state and national medical guidelines for the workers’ compensation and auto no-fault industries. Based on the best available scientific evidence and recommendations at this time, in addition to the lack of essential quality control measures, an unchanged Schedule I classification, and the absence of an NDC needed for adjudication and processing, we exclude medical marijuana from our formularies and medication plans.
As data and information on the use of marijuana builds, Optum will continue to review the literature for changes in safety and efficacy of treating pain and other compensable conditions and make appropriate updates to our guidance.
Additionally, our Public Policy and Regulatory Affairs team remains abreast of the changes in the legislative and regulatory landscape.