Recently, the Maine Supreme Court issued a decision that surprised workers’ compensation professionals across the country. In Bourgoin v. Twin Rivers, 2018 ME 77, 2018 WL 2976309 (June 14, 2018), the court decided that a workers’ compensation carrier cannot be compelled to subsidize a claimant’s medicinal marijuana treatment. In that case, the claimant received a certification under the Maine Medical Use of Marijuana Act (MMUMA) for the use of medicinal marijuana to treat work-related injuries. The court determined that requiring the carrier to subsidize the claimant’s treatment would create a direct conflict between the state MMUMA and the federal Controlled Substances Act (CSA), because the carrier would be forced to aid and abet the claimant’s commission of a federal crime.
Despite federal law, federal policy has been noninterference with state medical marijuana programs. Starting in 2009, Deputy Attorney General David W. Ogden issued a memorandum stating that it was an inefficient use of limited federal resources to prosecute those that use or recommend medical marijuana in compliance with applicable state law. As early as 2014, under the appropriations rider known as the Rohrabacher-Blumenauer amendment, Congress currently denies the Department of Justice (DOJ) funding to prosecute those in full compliance with a state’s medical marijuana program. In United States v. McIntosh, 833 F. 3d 1163, 1175-77 (9th Cir. 2014), the Ninth Circuit upheld the rider as a prohibition on the DOJ to prosecute medical marijuana providers and recipients.
The Bourgoin decision comes as a surprise because a handful of state courts and workers’ compensation boards have relied on the federal policy of noninterference when compelling carriers to cover state certified medicinal marijuana treatment. Petrini v. Marcus Dairy, Inc., 6021 CRB-7-15-7, 2016 WL 6659149 (Conn. Work. Comp. Com. May 12, 2016) [Connecticut]; Watson v. 84 Lumber, CP 2009-15740 (NJ DWC 2016); Matter of Our Lady Victory of Homes, G085 6672, 2018 WL 2752819 (N.Y. Work. Comp. Bd. June 4, 2018) [New York]. Notably, New Mexico’s Workers’ Compensation Administration specified by regulation that marijuana may be a reasonable and necessary medical treatment in workers’ compensation cases, N.M. Admin. Code 11.4.7.9(D), as a result of decisions by the New Mexico Court of Appeals.
Specifically, in Vialpando v. Ben’s Automotive Services, 331 P.3d 975 (N.M. App. 2014), the New Mexico Court of Appeals considered the argument that federal law and federal public policy prevented the employer from reimbursing an injured worker for medicinal marijuana lawfully used pursuant to the state’s Compassionate Use Act. The court (1) relied on the fact that the employer did not state which federal statute it would be forced to violate, and (2) indicated that expressions of federal public policy of noninterference — evidenced through the Ogden Memo — were equivocal on the matter.
The Bourgoin Court also addressed the federal policy of noninterference, but through dismissing the Maine Workers’ Compensation Board’s reasoning in another case: Noll v. Lepage Bakeries, Inc., Case No. App. Div. 15-0061, 2016 WL 10428768 (ME. Work. Comp. Bd. Aug. 23, 2016). There, the board rejected a self-insured employer’s argument that “reimbursement would place it at risk of prosecution for violating federal law.” The board affirmed the Administrative Law Judge’s reasoning that federal policy is noninterference based on (1) the Ogden Memo, as interpreted through New Mexico’s Vialpando decision, and (2) the appropriations rider known as the Rohrabacher-Blumenauer amendment, as affirmed through the Ninth Circuit’s McIntosh decision.
However, while federal policy may maintain noninterference, marijuana remains illegal under federal law. Therefore, the court concluded finding that compelling a carrier under a state’s medical marijuana program is preempted by federal law with the following: “[T]he magnitude of the risk of criminal prosecution is immaterial in this case. Prosecuted or not, the fact remains that [the employer/carrier] would be forced to commit a federal crime if it complied with the directive of the Workers’ Compensation Board.” Bourgoin, 2018 WL 2976309 at *8. In essence, the court is the first decision to dismiss reasoning that not only workers’ compensation boards, but also state and federal courts rely on: the DOJ cannot use its resources to prosecute those in full compliance with state medical marijuana law.
To be clear, noninterference with state medical marijuana law is still federal policy. While Attorney General Jeff Sessions rescinded the Ogden Memo and reiterated that federal prosecutors are to decide — at their own discretion — which cases to prosecute, that discretion must be “in accordance with all applicable laws, regulations, and appropriations.” Read in the context of the Rohrabacher-Blumenauer amendment (i.e., an appropriations rider), it becomes clear that federal prosecutors are less likely to interfere in a state’s medical marijuana program so long as the federal budget deprives the DOJ of resources to do so.
To date, thirty-one states have some form of a medical marijuana program, but the drug remains a Schedule I drug under the CSA. Regardless of federal policy, the Bourgoin Court is an outlier interpretation of federal law and state medical marijuana programs. It remains to be seen if or when Congress (amending the CSA), the DEA (rescheduling marijuana or CBD), or the Supreme Court (overturning Bourgoin) will change or clarify how federal law relates to state medical marijuana programs.
If a medical provider requests authorization for medicinal marijuana, please feel free to reach out to determine the potential defenses and mechanism for reimbursement in order to protect your interests.