With more and more states hopping on the legalization bandwagon, more so for medical marijuana than anything else, the question of insurance coverage and medical cannabis was sure to surface. Earlier this year, a New Jersey administrative law judge issued the latest ruling on the issue and furthered precedent that flies in the face of not only federal prohibition, but also raises some serious contradictions concerning previous rulings on properly prescribed cannabis and the workplace.
Unfortunately, we have a long way to go before all of these legal idiosyncrasies are worked out, especially as long as the feds stick to their guns on cannabis prohibition. In the meantime, each case and each new ruling only builds precedent upon which further rulings could be based. This could be good news given that the first rulings on cannabis and insurance in the US have favored the patients rather than the insurance companies.
Medical Cannabis Case by Case
Andrew Watson is the New Jersey man who brought suit against Gallagher Bassett Services, a third-party administrator for 84 Lumber’s worker’s comp insurance. 84 Lumber is the company Mr. Watson was working for when he was injured in a power saw accident in 2008. Mr. Watson suffers from ongoing neuropathic pain in his left hand as a result of that accident, a condition that has left Mr. Watson to suffer chronic, unrelenting pain. In 2014, Mr. Watson received a prescription for medicinal marijuana in accordance with the state’s medical program and purchased marijuana out of pocket from a local dispensary for over three months.
Mr. Watson sought reimbursement from insurance company and was denied
As a result, Mr. Watson sought legal intervention. While the opinion issued by the court did not address the reimbursement of previous purchases, the court did end up ruling that the insurance company should cover future treatment.
The judge in the case, Judge Ingrid L. French, stated in her opinion, “the evidence presented in these proceedings show that the petitioner’s ‘trial’ use of medicinal marijuana has been successful. While the court is sensitive to the controversy surrounding the medicinal use of marijuana, whether or not it should be prescribed for a patient in a state where it is legal to prescribe it is a medical decision that is within the boundaries of the laws in the state.” The interesting thing about this opinion is the language limiting the scope to state law and deferring to the medical decision made by the patient and physician.
In New Mexico, a similar decision was reached not once, but twice. In 2014, Vialpando v. Ben’s Automotive Services resulted in the Court of Appeals directing an employer and insurer to reimburse a worker for their medical marijuana expenses. Again in 2015, in Lewis v. American General Media, this decision was reaffirmed. In an opinion by Judge James J. Wechsler it was indicated that despite contradiction with federal law, the Department of Justice’s willingness to allow states to determine their own marijuana policies and congressional refusal to use federal funds to prevent states from implementing these policies created enough ambiguity that state law should prevail.
Insurance and Medical Cannabis
So where does that leave us? It’s important to note that all of the rulings made to this point have pertained to workers comp, a form of insurance that is subject to more legal restrictions than your typical health insurance. While the ACA requires that insurance companies cover a drug from each of the classes defined in US Pharmacopeia guidelines, insurance companies do not have to cover any specific drug (especially not one that is federally a Schedule I controlled substance). For example, an insurance company may have to cover a form of oral contraceptive, but they do not have to cover a specific brand or formulation.
Typical health insurance coverage is dependent on the terms and conditions the patient agrees to when purchasing coverage
These terms and conditions outline what prescriptions are covered by your policy. Many argue that in terms of initial expense, the side effects created by other prescriptions meds, and treatment of those side effects in the long run, covering medical marijuana may be a safer financial bet for insurers. Unfortunately, until federal prohibition is addressed, especially since many insurers are multi-state operations, this is not a legal battle insurers are willing to engage in. Given the uncertain climate of health care in the US right now, I wouldn’t bet on insurers taking any risks of any kind any time soon.
The Future of Medical Cannabis Costs
So, as it stands, medical marijuana, no matter how invaluable to millions of patients, is largely going to be an out of pocket expense, at least for now. In the future, should we see marijuana rescheduled and/or prohibition ended, this could change and we could see this vital medicine treated as just that, a medicine, a medicine covered by your required health care coverage, but until then, the cost lies with us as individuals. This is why it is so important to support efforts by both states and private non-profits to help defray the cost of cannabis for low-income individuals. Nobody should be denied necessary medication and treatment due to lack of financial resources, especially when they are already doling out copious amounts of money for insurance and other medical treatments.
As with all things cannabis, there is still a lot of work to be done to bring it out of the shadows and into its rightful place as a legitimate medicine and safe recreational indulgence
This includes petitioning your legislators to end prohibition and promote research so that insurance companies are willing to take on medical marijuana just as they would any other medication. As much progress as we’ve made on a state level, change is necessary from the federal level before we can see progress in insurance and research.