Monday, April 20, 2015

Marijuana Back in the News

Is Medical Marijuana an oxymoron? In January 2015 I worked through some of the conflicts inherent in the use and prescription of Marijuana. Essentially, the law designates various substances for regulation by listing them in one of five "schedules" in the Controlled Substances Act. Marijuana is listed in Schedule 1. That means that it has "no accepted medical use in treatment," and a high potential for abuse. 

Marijuana is in the workers' compensation news periodically. One of the large pharmacy management companies provides a great overview of recent efforts to legalize marijuana. This spring marijuana is in the workers' compensation news. In April, WorkCompCentral (subscription) reported that the California system had denied payment for medical marijuana in a workers' compensation case. That article includes an extensive overview of how various states have dealt with the marijuana question. 

The same day, WorkCompCentral reported that the "nation's views" regarding marijuana are shifting. There is a perception that more Americans are comfortable with legalization. The Journal of Occupational and Environmental Medicine has recently published guidance for dealing with marijuana in the workplace. 

This appears to be a recognition that it will become more widespread. States will have to deal with the substance and the states' decisions to ignore federal law prohibiting it may lead to issues. Earlier in April, Arizona passed legislation that clarified medical Marijuana is not part of the basket of benefits provided by workers' compensation there. 

If someone is under the care of a doctor, and marijuana is prescribed (ignoring that the physician is prescribing something that  by definition has "no accepted medical use in treatment"), how will states justify treating some patients, workers' compensation patients, differently than patients in the general health system. Some will argue that the equal protection clause is implicated. 

In the federalist system in which we live, there will also be differences among the states regarding laws and regulations. As states make their own decisions regarding enforcement of marijuana laws, questions about it in workers' compensation will occur. 

Marijuana is not legal in Florida. If a worker is injured in Florida, and then moves to Washington, might the employee be able to obtain and use Marijuana as part of ongoing workers' compensation treatment at the expense of the Florida employer/carrier? 

Some of the complexity of all of this would be alleviated if the states respected federal law regarding marijuana. Likewise, the complexity would be alleviated if use of marijuana was not illegal under federal law. Congress could certainly remove it from the Schedule I listing. 

The US News reported on April 16, 2015 that a federal judge had been asked to remove Marijuana from Schedule I of the Controlled Substance Act by judicial conclusion. Advocates of legalization sought to have the courts intervene and change the federal law. There have been a variety of circumstances in which judicial activity has changed law in the United States. The judge in this instance was reportedly "initially prepared to rule that marijuana should not be a Schedule I drug." 

Ultimately, the judge declined to enter that ruling, concluding "it was up to Congress to change the law." She held that courts are not makers of public policy, and followed instead of overturning the law. The judge did make some findings. She noted that the Controlled Substance Act is 45 years old and that "the landscape has changed" during that time. 

The context of this particular case was not about workers' compensation. It involved a criminal prosecution which the US News story describes as pitting "federal authorities against states that have legalized medical marijuana." There remain questions of "legality" despite state actions regarding marijuana. Though a state may legalize, the fact remains that marijuana is illegal under federal law, and the Constitution makes federal law the "supreme law" of the land. 

Marijuana advocates claim that the substance is not as potentially harmful as other drugs, which are less regulated. They argue therefore that classification of Marijuana as a "Schedule I" substance is "arbitrary in violation of the Constitution."

The article says that some contend that the "majority of the public has already concluded" that "marijuana does not meet the three criteria of a Schedule 1 drug." There is anticipation that this federal ruling will be appealed. As the court is in Sacramento, California, the appellate issue will be for the United States Circuit Court for the Ninth Circuit. All of the states in this Circuit have "legalized" medical marijuana, except Idaho, according to the Helios overview cited above. One state, Washington, has also legalized recreational marijuana use. 

Will change to the Controlled Substance Act come through judicial intervention by the federal courts? If that is the course, will this be the case in which it happens? Or, as the judge ruled in April, is the decision to amend the Act up to the legislative branch of government? 

In the meantime, the states will continue to struggle with the implications of marijuana. It will be a challenge in the workplace and in workers' compensation.

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