W W W . C H I C A G O L A N D R I S K F O R U M . O R G

The Debate Continues: Medical Marijuana in Workers’ Compensation

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Learning Objectives

In this session, we will… •  Discuss potential medicinal benefits of marijuana •  Learn the U.S. states that have legalized marijuana for medical use

and those considering it. •  Understand the status of medical marijuana in workers’

compensation •  Discuss current legislation at Federal Level, and whether classification

of marijuana might change in the future

Medical Marijuana

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What is Marijuana?

•  Number of slang terms –  Weed, pot, grass, etc.

•  Cannabis sativa – From green mixture of dried, shredded leaves and flowers –  Hemp plant

•  Over 100 different cannabinoids –  THC, most common & most psychoactive (Marinol) –  Cannabidiol and Cannabinol also prevalent forms

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•  Medical marijuana legalized in 25 states and the District of Columbia

•  14 other states considering similar legislation

•  A majority of Americans—up to 78% believe marijuana should be legal with a physician’s recommendation

•  With this level of support, legalization will likely continue

Marijuana Legislation by State

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Nine States to Vote Soon on Expanding Legal Access to Marijuana (as of Sept 28, 2016, ABC News)

•  5 states — Arizona, California, Maine, Massachusetts and Nevada — will consider legalizing the recreational use of pot.

•  3 others — Florida, Arkansas and North Dakota — will decide whether to permit marijuana for medical purposes.

•  Montana will weigh whether to ease restrictions on an existing medical marijuana law.

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Medical Marijuana

•  Current literature documents various medical uses (below)

•  Delivery: Inhalation or oral ingestion

AIDS(HIV)andAIDSWas/ngAlzheimer’sdiseaseArthri/sAsthma/breathingdisordersCrohn’s/gastrointes/naldisordersEpilepsy/seizuresGlaucomaHepa//sCMigrainesMul/plesclerosis/musclespasms

Nausea/chemotherapyPain/analgesiaPsychological/psychiatriccondi/ons/disordersToureHe’ssyndromeSpas/cityCancerCachexiaOtherterminallyillcondi/ons

*AccordingtoUSGovernmentAccountabilityOffice(GAO),HarvardMedicalSchool,andtheNaEonalInsEtuteforMentalHealth(NIMH)

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Clinical Trials

•  Works on neuropathic pain (Abrams, et al)

•  Mixed results for spasticity (Wade, Zajicek, et al)

•  Appetite improvement by THC •  Generally well-tolerated, minimal drug-drug interactions, minimal

adverse effects with short term use •  Multiple long term affects •  Trials hampered by government regulations

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Clinical Trials

•  June 2015 – The Journal of the American Medical Association reported existing clinical trials have shown medical marijuana can effectively treat chronic and neuropathic pain.

•  However, trials were small in scale

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Smoked Marijuana

•  DEA and federal government opposed to “smoked” marijuana and they are not alone… –  Many view it as having no documented medical value

•  Medical community has not fully accepted smoked marijuana as medicine… –  American Society of Addiction Medicine’s (ASAM) – reject smoked marijuana as a

means of medicinal drug delivery –  American Cancer Society (ACS) – not an advocate of inhaled marijuana –  American Glaucoma Society (AGS) – can lower intraocular pressure, but due to side

effects, short duration, and lack of evidence that it can alter course of glaucoma, precludes recommending smoked marijuana

•  Even the scientists and researchers who believe marijuana has medicinal value… –  Discount smoked marijuana as “medicine”

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FDA Approved Forms

•  Medical marijuana not approved as “safe and effective medication” –  Marinol®, only drug currently approved by FDA –  Man-made, synthetic form of THC, active natural substance in marijuana –  Available through prescription and comes in pill form –  Used to treat nausea and vomiting caused by chemotherapy for cancer –  Used to treat weight loss and loss of appetite in HIV/AIDS patients –  Controversy whether creates “high” or intoxication – reports say it doesn’t

•  Sativex®, an oral-mucosal spray –  Used to treat spasticity due to Multiple Sclerosis –  Approved in Canada, New Zealand, Spain, and United Kingdom –  Contains 2 cannabinoids found in marijuana – THC and Cannabidiol (CBD) – but unlike

smoked marijuana, removes contaminants, reduces intoxicating effects –  Grown in a structured and scientific environment –  Administers a set dosage and meets criteria for pharmaceutical products

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States with CBD-only Legalization

Cannabidiol (CBD) compounds in marijuana that have medical effects but do not make people feel stoned, 11 States

1.  Alabama 2.  Florida 3.  Kentucky 4.  Mississippi 5.  Missouri 6.  North Carolina 7.  South Carolina 8.  Utah 9.  Wisconsin 10.  Iowa 11.  Tennessee

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States with CBD-only Legalization

Federal and State Laws

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Federal Law

•  Controlled Substances Act (CSA) of 1970 –  Categorizes marijuana as Schedule I substance –  Cultivation and distribution (which includes gift as well as sale)

are felonies –  Possession for personal use is a misdemeanor –  Use is not itself a crime, but there is no way to use marijuana

without possessing it first, and possession of “paraphernalia” is also illegal

–  Cultivating marijuana, 100 plants or more, carries a mandatory minimum sentence of five years under federal law

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Federal vs. State Laws

•  Oct. 19, 2009, Attorney General Eric Holder announced formal guidelines for federal prosecutors in states that enacted laws authorizing the use of marijuana for medical purposes –  Not to focus on individuals who are in compliance with state laws –  Continue to prosecute those whose claims of compliance with state and local

law conceal operations inconsistent with the terms, conditions, or purposes of the law

–  Reiterated Department of Justice is committed to enforcement of Controlled Substances Act (CSA) in all states

–  Guidance does not “legalize” marijuana or provide legal defense to violations of federal law

–  Some interpret guidelines to mean federal government has relaxed its policy on “medical” marijuana, this in fact is not the case

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Drug Enforcement Administration

•  DEA’s Position “Properly Categorized” as Schedule I Substance”

–  U.S.C. § 801, et seq. The clear weight of the currently available evidence supports this classification, including evidence that smoked marijuana has a high potential for abuse, has no accepted medicinal value in treatment in the United States, and evidence that there is a general lack of accepted safety for its use even under medical supervision.

Medical Marijuana in WC

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Medical Marijuana in WC

•  In WC, predominantly requested to manage chronic pain –  Studies on efficacy for pain management produce conflicting results –  Some studies had positive results, but they were small in scale –  Others showed synergistic effects when using marijuana with opioids,

which could lower opioid dosage and abuse –  However, no large-scale randomized controlled human trials have been

conducted on medical marijuana –  Lack of definitive medical evidence continues to be a barrier to

adoption, and as a Schedule 1 drug, obstacles remain with regard to testing and prescribing

•  Side effects, may be less risky than opioid pain relievers

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Claims Best Practices: Medical Marijuana in WC

•  Schedule I drug per Controlled Substance Act (CSA) –  Illegal to distribute, prescribe or purchase in U.S. –  Prohibits assigning NDC or procedure code for billing purposes –  Not FDA-approved to treat any medical conditions or diseases –  Not FDA-approved to treat any common WC injuries

•  Payers deny medical marijuana claims for WC –  Several states, including Colorado, Michigan, Montana, Oregon, and Vermont,

contain provisions. WC not required to cover cost of medical marijuana. –  Not approved in the ODG or ACOEM practice guidelines or any of the state

medical treatment guidelines and denied by UR if recommended by a treating physician

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Reasonable & Necessary Treatment

•  Defining “reasonable and necessary” treatment is an enduring challenge –  Determinations of “necessary” care rely on medical evidence, as

encapsulated in clinical guidelines –  Determinations rarely straightforward, given the complexity of individual cases –  Evidence based medicine – consider that there are currently no WC treatment

guidelines that support marijuana recommendations

•  In many states, medical marijuana can be recommended but not prescribed by a doctor. –  Treatment guidelines – will claimants find support

in states?

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Case in Point: Medical Marijuana in WC

•  2014, a judge in New Mexico ruled that the employer and its workers’ compensation carrier had to reimburse employee –  For costs associated with purchase of medical marijuana

(Vialpando v. Ben's Auto. Servs. And Redwood Fire & Casualty, 2014-NMCA-32, 920, N.M. Court of Appeals, May 19, 2014)

–  Back injury case, illustrates that once medical marijuana is available in a state, expanding the conditions it is used for as a treatment is quite common

–  Since marijuana is still classified as an illegal substance under federal law, insurance carriers are prohibited from paying for it directly

–  In this case, the carrier was required to reimburse the injured worker, not to pay for the marijuana directly

–  This decision is being challenged in the New Mexico Supreme Court –  No ruling has been handed down

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Other Jurisdictions Issues

•  Nov. 2015 - New Mexico became first state to propose a reimbursement rule for medical marijuana –  State’s 2016 fee schedule set maximum payment injured workers could be

reimbursed: $12.02 per gram, could receive 0.5 pound every 3 months •  Louisiana also support reimbursement

–  State’s Court of Appeals upheld a WC judge’s ruling that an employee’s prescription for a drug containing THC was a “necessary medical expense”

–  Ordered employer to reimburse claimant, but did not assess penalties against the employer, did not require employer to pay claimant's attorney fees

•  Dec. 2015 - Minnesota’s health commissioner included “intractable” pain as condition that could be treated with medical marijuana –  Opens the door for claimants’ attorneys to file claims for WC insurers to cover

the cost of medical marijuana – one claim has been filed, decision hot not yet been reached

Tolerance in the Workplace

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Affect on Work Performance

•  Marijuana affects each user differently, depending on: –  Person's mood, personality, size, and weight –  Amount taken and whether it is mixed with anything else –  Environment in which drug is used

•  If used in workplace, it can affect health and safety of workers •  Marijuana has following effects (Wadsworth EJ et al, 2006):

–  Short-term memory problems –  Impaired thinking –  Loss of balance and coordination –  Decreased concentration

•  Marijuana has following effects (Wadsworth EJ et al, 2006): –  Hazardous, if operating heavy machinery or driving a vehicle –  Greater risk of accident, due to poor performance of simple manual tasks –  Regular users will exhibit loss of energy and interest in tasks –  Difficulty in learning new work skills

–  Changes in sensory perception –  Impaired ability to perform complex tasks –  Decreased alertness –  Decreased reaction time

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Driving on the Job

•  Legal limit for DUI of marijuana –  5 nanograms of active THC in blood –  No recognition in the legislation that the effects of marijuana and alcohol

together may be more than the sum of their parts

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Cannibuster

Cannibuster video shown here…

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Cannibuster

•  A roadside marijuana test –  May be the Holy grail for states were marijuana is legalized –  Similar to the breathalyzer, uses saliva test –  On the spot results –  No way to determine level of intoxication when marijuana, alcohol and

prescription drugs are used in combination

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Drug Free Workplace & Random Drug Testing

•  Workplace drug testing can identify a marijuana user –  Stored in fatty tissues, slowly released into bloodstream and excreted from

body

•  Traces of marijuana can be found: –  In urine for 1-5 days after occasional use

–  Up to six weeks (or more) in regular users (3x a week over a number of years)

–  Identified for a much longer time period compared to most other drugs

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Workplace Tolerance: From Termination to Acceptance

•  Coats v. Dish Network case in Colorado –  Brandon Coats, became quadriplegic in car accident, used medical

marijuana to control leg spasms

–  2015, off-duty use of medical marijuana, failed random drug test and fired

–  June 15, 2015 – Colorado Supreme Court upheld businesses right to fire employees for medical marijuana use, even if use occurred while off duty

•  According to a study conducted by EMPLOYERS, a WC insurance services provider, 1 out of 5 small employers would allow employee with a doctor’s recommendation to use the drug while at work

Reclassification: Is it Possible?

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Future Outlook: Is Reclassification Possible?

•  Cultural outlook and public opinion polls support marijuana use •  Significant momentum at state legislative level

–  Some experts feel it’s only a matter of time before the federal government reclassifies marijuana, allowing legal use

•  Reclassification would create significant upheaval in employers’ “drug free” workplace policies –  Transition from “zero tolerance” to “impairment” policies, similar to alcohol

•  Would need standards for measuring THC impairment and determining if someone is “under the influence” of marijuana –  No research on marijuana impairment levels – affects people differently –  Blood tests are unreliable

–  No breathalyzer

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Sens. Paul, Booker, & Gillibrand Announce CARERS Act

•  New Bipartisan Medical Marijuana Bill to Allow Patients – Including Veterans – to Access Necessary Care without Fear of Federal Prosecution –  Recognize States’ Responsibility to Set Medical Marijuana Policy & Eliminate

Potential Federal Prosecution –  Reschedule Marijuana from Schedule I to Schedule II, Recognizing “Accepted

Medical Use” –  Allow States to Import Cannbidiol (CBD), Recognized Treatment for Epilepsy

and Seizure Disorders –  Provide Veterans Access –  Permit Financial Services and Banking for Marijuana Dispensaries –  Expand Opportunities for Research

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Congress Rethinks Policy on Medical Marijuana

•  Regulate Marijuana Like Alcohol Act, Rep. Jared Polis (D-Colo.) –  Remove marijuana from the Controlled Substances Act's schedules –  Transfer oversight from Drug Enforcement Administration to Bureau of

Alcohol, Tobacco, Firearms and Explosives –  Regulate marijuana in way similar to alcohol in U.S.

•  Marijuana Tax Revenue Act, Rep. Earl Blumenauer (D-Ore.) –  Set up a federal excise tax for regulated marijuana

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Takeaways

•  At the federal level, marijuana is classified as an illegal drug –  May carry a fine or criminal conviction –  Zero tolerance, there is no protection for employees who use medical

marijuana, even if prescribed by a physician and even if used after-hours •  Use of marijuana is currently not acceptable in the workplace

–  Affects work performance, employee safety must be considered •  WC policies must be based on federal law

–  Currently, WC payers without exception deny claims for medical marijuana –  Work with service providers, such as TPAs and pharmacy benefit managers, to

establish and enforce policies; re-review as new case verdicts emerge •  Monitor state and federal legislation

–  More states may legalize medical marijuana, creating additional pressure to reclassify marijuana at the federal level

–  Stay abreast of new cases, judgments and verdicts that may forecast a change in public sentiment, which could then impact policies

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Q&A

Kevin Glennon, RN, BSN, CDMS, CWCP, QRP VP of Clinical Education & Quality Assurance

One Call Care Management Kevin_Glennon@onecallcm.com

www.onecallcm.com