“High Anxiety” for Carriers: Medical Marijuana Progressing in New York

For New York workers’ compensation carriers, the budding industry of medical marijuana will likely provide an interesting new set of challenges and concerns in the administration of treatment for eligible patients and injured workers.

The growing trend across the United States has recently been towards expansion of medical marijuana programs — and as of March 31, 2017, approximately 28 states, including New York, have legalized some form of medical marijuana usage. New York’s Compassionate Care Act specifically details that patients with specified conditions (cancer, HIV infection or AIDS, amyotrophic lateral sclerosis [ALS], Parkinson’s disease, multiple sclerosis, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington’s disease) with the associated or complicating conditions of cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms are eligible for medical marijuana. Of note, additional conditions are potentially in the pipeline for review including Alzheimer’s, muscular dystrophy, dystonia, post-traumatic stress disorder, and rheumatoid arthritis, which are going to be evaluated during the next 18 months as potentially qualifying conditions which may shake this list up further.

In New York, patients seeking to cure their ailments with this medication must discuss eligibility for the drug with their doctor as part of an ongoing joint discussion with respect to their specific medical needs and then submit a registration and $50.00 fee if their doctor determines they are an eligible candidate. Since the July 2014 rolling out of the medical marijuana program, just over 900 medical practitioners have registered to prescribe medical marijuana and 16,000 patients have been certified to receive the high-profile drug in New York. From a packed crowd of applicants looking to make some “green,” just five companies were initially licensed to grow and sell this controversial kind of medication in New York: Bloomfield Industries, Inc., Columbia Care NY, LLC, Etain, LLC, PharmaCann LLC, and Viero Health of New York LLC (formerly known as Empire State Health Solutions), each of which have manufacturing and dispensary locations spanning the state.

Given the relatively recent legalization of medical marijuana, providers are facing some growing pains and recent moves by local companies have ignited industry competition and innovation. Columbia Care has recently branched out by commencing a pilot program involving direct home delivery of medical marijuana to registered patients with the goal of providing statewide coverage. In an attempt to garner a larger piece of the market, Etain has engaged in a plan to outreach specifically to residents of senior and long-term health care centers and to assist with completion of the forms for patients to register to become eligible for medical marijuana.

However, not all companies have met with success with one company already burned out by financial concerns and others loudly complaining that a takeover of Bloomfield has resulted in their businesses’ market share taking a hit. Among complaints that the industry has not been economically viable and shortage of demand, Bloomfield has been sold to MedMen, a California firm which incidentally also has ties to a partner that is a significant investor in PharmaCann, raising concerns of the move blunting competition in the local industry.

Numerous significant concerns are likely to crop up for insurance carriers in New York as the medical marijuana experiment continues.

Chief among the issues that should spark concern for workers’ compensation insurers, New York’s Workers’ Compensation Non-Acute Pain Medical Treatment Guidelines presently have no comment on the use of medical marijuana, including dosages, methods of delivery, and recommended timetables for short-term trials, unlike several opioid medications.

Another concern is the size of the pool of patients who will qualify for the medication through a somewhat strained interpretation of eligibility criteria. While by and large the covered conditions cover specific and detailed conditions, it remains to be seen whether claimants with very marginal diagnostic findings involving the neck or back alleging chronic pain will easily be able to obtain the medication.

Also likely to be hashed out in litigation is whether medical marijuana is going to be a replacement to current modalities or a complementary type of treatment with current medications. Carriers in New York and other states already have reason to be fired up by being required to shell out for expensive and potentially dangerous opioid medications and whether medical marijuana will be a cost-effective treatment remains to be seen.

Another potentially hazy issue for employers is whether medical marijuana prescriptions for injured claimants who return to work while taking this medication will result in legal battles centering around conflicts with employers’ established drug testing policies and concerns of future accidents involving workers who have recently taken the medication.

Finally, legal concerns regarding all states’ use of medical marijuana remain globally as the Trump administration has signaled an intent to expand enforcement of federal marijuana laws which still list medical marijuana as an illegal substance. However, whether the government is currently “blowing smoke” on this matter is yet to be determined.

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