Workers’ compensation insurers have slashed spending on opioids, reducing the risk of addiction and delayed recovery, but now they are under increasing pressure to reimburse injured workers for a new kind of elixir.
Six states now allow or require insurers to reimburse workers’ compensation claimants for medical marijuana if its use is deemed reasonable and necessary, according to an analysis by researchers for the National Institute for Occupational Safety and Health and the Workers’ Compensation Research Institute. Another 10 states haven’t staked out a position, meaning marijuana reimbursement may eventually be required.
The NIOSH paper also says there is little scientific evidence to support “the lengthy list of state-sanctioned qualifying health conditions” that marijuana is used to treat. A 2017 review of scientific literature by the National Academy of Sciences found evidence existed to support the use of cannabinoids for only three conditions: chronic neuropathic and end-of-life pain, spasticity due to multiple sclerosis or spinal cord injury, and for the control of nausea caused by chemotherapy.
The 36 states that allow use of medical marijuana allow for a much wider range of conditions. New York, for instance, lists cancer, HIV infection or AIDS, inflammatory bowel disease, post-traumatic stress disorder, and chronic pain as qualifying conditions.
New York is one of 19 states that also allow marijuana to be used for recreational purposes. Only a decade ago, non-medical use was illegal in every state in the nation.
Amid that growing tolerance, the authors of the NIOSH paper said they expect the number of states that allow workers’ comp reimbursement for marijuana to grow “as more workers petition state courts and administrative agencies for cannabis (workers’ compensation insurer) reimbursement.”
Should the states reconsider their guidelines given the limited evidence to support the clinical use of cannabis?
“States are in a tough spot when it comes to this question,” said NIOSH Director John Howard in an email to Claims Journal. “The studies needed by states to make listing decisions based only on scientifically sound efficacy studies are just not there at the present time.”
One reason for the lack of scientific evidence is that marijuana is a Schedule 1 controlled substance under federal law. Since 1968, federal regulations required researchers to use marijuana from a facility at the University of Mississippi under a contract with the National Institute on Drug Abuse, according to the paper. The regulations weren’t amended until late 2020.
The paper says determining what part of the marijuana plant is effective for health conditions and at what dosage is also a daunting task. Cannabis sativa contains approximately 565 chemicals, 120 which are called cannabinoids. Delta-9-tetrahydrocannabinol (THC) alters mood. Cannabidioil (CBD) is a non-psychoactive, potent anti-inflammatory.
Howard said more efficacy studies are needed but limited by the legal status of cannabis.
Nevertheless, anecdotal evidence has persuaded many physicians that therapeutic use of marijuana is justified. Interest in use of marijuana to relieve chronic pain increased just as government regulators began putting pressure on physicians to decrease the use of opioids because of an epidemic of addition and overdoses.
A study by the Workers’ Compensation Research Institute published in July found that state laws that require physicians to check prescription drug monitoring databases, which record the identify of patients who were prescribed controlled substances, reduced the amount of opioids prescribed by 12% in the first year. Regulations that limit the duration of opioid prescriptions resulted in a 19% decrease in the amount of opioids among claims where opioids were prescribed.
“It is not entirely clear that cannabis is superior to opioids in the absence of safety and efficacy studies of cannabis as a pain reliever,” Howard said. “For example, when prescribing is controlled (e.g., number of refills allowed, number of meds allowed per prescription), opioids can be safe and effective. What is clear is that cannabis does not have the same effect on the respiratory center in the brain that opioids have (i.e., respiratory depression causing death).”
Canada became the second nation in the world to legalize recreational use of marijuana in 2018, following Uruguay in 2013. However, marijuana is not an approved therapeutic drug in Canada. The nation’s health department does not endorse the use of medical cannabis.
Guidelines adopted by the Canadian provinces for workers’ compensation are a buzz kill when compared to the uses allowed in the United States. Nova Scotia, for example, limits the daily quantity of medical cannabis to three grams per day and limits the THC percentage to 9%, compared to an average level of 15% measured by the U.S. Drug Enforcement Agency in 2018, according to the NIOSH paper.
New Brunswick and Ontario confine medical use of marijuana to a narrow range of conditions that align with scientific data where efficacy has been shown; neuropathic pain, spasticity and nausea. New Brunswick adds the use of marijuana for harm reduction when it is offered to patients as an alternative to opioids.
The paper says Canadian provincial workers’ compensation boards has similar concerns as US workers’ compensation insurers about the lack of scientific evidence for the efficacy of cannabis for specific health conditions.
In the US, such attitudes seem to be changing rapidly.
Mark Pew, who runs a consulting business and writes a blog called The Rx Professor, said in 2015 he urged New Mexico state lawmakers to ensure that workers’ compensation insurers would not be required to reimburse injured workers for medical marijuana. He worked for utilization review provider Prium at the time. New Mexico courts had ruled that carriers can be liable for the cost of marijuana use if reasonable and necessary to treat a work injury.
Pew said his main argument at the time was that insurers were at risk of running into legal trouble with the federal government because of marijuana’s status as a controlled substances. Nowadays, he said, that argument doesn’t carry much wait.
The US Justice Department issued a directive in 2013 that instructed federal prosecutors to lay off on filing criminal charges involving small amounts of marijuana if legal under state laws. The fact that there has not been a federal prosecution after more than 20 years of legal marijuana shows that violating federal law is no longer a serious concern, Pew said.
Also, there is a growing body of evidence showing efficacy in treating a wide variety of conditions. Pew said even though research has been stymied in the US because of federal law, there are plenty of studies going on elsewhere. He said Mexico and China are both funding research.
“People tend to think there are no scientific studies, but there is a lot of real world data that is being accumulated,” he said.
New Mexico was the first of five states where courts ordered workers’ compensation insurers to reimburse injured workers for marijuana. The Connecticut Workers’ Compensation Review Board, an appellate court in New York and the supreme courts in New Hampshire and New Jersey followed. Minnesota enacted an administrative rule that cleared the way for reimbursement for marijuana, but it faces legal challenges, according to the NIOSH paper.
In each of those states, marijuana use is allowed only as a last resort after other treatment methods had failed.
Pew said some insurers have quietly accepted marijuana and have established internal guidelines for accepting reimbursement. He said claims departments generally keep their acceptance on the down low. Claims adjusters, supervisors and managers huddle with clinical experts and decide in what circumstances marijuana use is appropriate.
Pew said even though marijuana has been accepted by some states, the reimbursement method for workers’ comp insurers is completely different than the way drugs are usually handled in workers’ comp. He said typically, medical providers ask insurers for preauthorization before prescribing any drug. For marijuana, reimbursement is handled retrospectively — injured workers ask for reimbursement after they start using the substance.
New York may be the first to change that. The New York State Workers’ Compensation Board published rules in the Sept. 1 edition of the State Register that create a preauthorization process for medical marijuana.
“That is going to be the model going forward,” Pew said. “If you are going to think of marijuana as medicine, you need to start treating it as medicine.”
Not in writing
Pennsylvania is among 14 states that don’t require workers’ comp insurers to reimburse for marijuana, according to the NIOSH paper. But that may soon change.
In June, an administrative law judge ruled that an insurer was required to reimburse an injured worker for marijuana that he used to wean himself off of an opioid addiction.
The Pennsylvania Medical Marijuana Act states that insurers can be compelled to “provide coverage” for marijuana, but Abington, Pennsylvania claimants’ attorney Jenifer Kaufman argues that coverage is not the same thing as reimbursement.
Kaufman said the administrative law judge did not mention the language in the medical marijuana law when he ruled in favor of her client. He ordered reimbursement in the context of utilization review: the insurance carrier had sent her marijuana request through UR and the reviewing doctor recommended that the request be approved.
Kaufman said two cases are pending before the Commonwealth Court, which is Pennsylvania’s intermediate court of appeals, and she hopes for a decision that clears the way for marijuana reimbursement for injured workers who otherwise must depend on opioids.
Kaufman said marijuana will save insurers money. She said most of her clients spend $200 to $500 per month. Some of them have been able to kick opioid habits that lasted 25 to 30 years and caused other problems, such as constipation, that forced insurers to pay for other drugs. Opioids also put insurers at risk of paying death benefits in instances where an injured worker is killed by an overdose.
Kaufman said insurers are aware of the potential savings. She said one carrier set up a fund for a client who had lost all of his teeth because of an opioid addiction. He is now able to withdraw from that fund to pay for marijuana, although nothing is written down that acknowledges the carrier is paying specifically for that.
“Some if them are quietly paying for marijuana in Pennsylvania and elsewhere,” Kaufman said. “They don’t want to put it in writing.”
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