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REEFER MADNESS CLOUDS PENNSYLVANIA
By Kevin L. Connors, Esquire
Released in 1936, the movie classic Reefer Madness captured the social hysteria of drug addiction amid a cloud of marijuana smoke.
Originally titled as Tell Your Children, with alternate titles beingThe Burning Question, Dope Addict, Doped Youth, the movie was an American drama highlighting melodramatic events after High School students were lured by drug pushers to try smoking marijuana, resulting in their slow descent into madness due to marijuana addiction, in the course of which the students were involved in hit and run accidents, suicide, rape, hallucinations, and homicide.
80 years later, enlightened by time, science, and relativity, although marijuana remains a controlled and prohibited substance under Federal law, there is a growing consensus in the medical community that marijuana can serve a utilitarian purpose in the treatment of serious medical conditions, with 25 states, including Pennsylvania, having legalized medical marijuana.
On April 17, 2016, Governor Tom Wolf, signed the Pennsylvania Medical Marijuana Act (commonly referred to as “Senate Bill 3”, to be referenced herein as the “MMA”), into law, effectively making Pennsylvania the 24th state to legalize medical marijuana.
This enactment will effectuate sweeping changes in Pennsylvania, legalizing the use of medical marijuana, subject to its dispensing and utilization being regulated under the MMA, while marijuana still remains illegal under Federal law, specifically under the Controlled Substance Act (“CSA”), which went into effect in 1970, and classified cannabis as a Scheduled I substance.
Although marijuana is a controlled and prohibited substance under Federal law, the Federal Government is not forcing states that have legalized medical marijuana to criminalize its use, as there are no known cases of Federal prosecution involving the use of medical marijuana in the 25 states that have legalized its use.
In effect, cultivating, distributing, and/or possessing cannabis, even for medical treatment purposes, remains a Federal crime, complicating the issue of who will have to pay for medical marijuana treatment in Pennsylvania, once the MMA is fully implemented in Pennsylvania.
For this very reason, Section 2012 of the MMA, specifically states that “nothing in this Act shall be construed to require an insurer or a health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.”
So, where do you go to get into line to get your prescription filled?
First, it will take months, if not years, for the MMA to be fully implemented, before prescriptions are being dispensed.
Secondly, the MMA specifically requires that a patient must be diagnosed with a “serious medical condition” to qualify for medical marijuana. These conditions are listed below:
· Amyotrophic Lateral Sclerosis (ALS);
· Parkinson’s Disease;
· Multiple Sclerosis;
· Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity;
· Inflammatory Bowel Disease (IBS);
· Huntington’s Disease;
· Crohn’s Disease;
· Post-traumatic Stress Disorder (PTSD);
· Intractable Seizures;
· Sickle Cell Anemia;
· Severe Chronic or Intractable Pain of Neuropathic Origin or Severe or Intractable Pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective; and,
Conditions not specifically listed above are considered to be excluded, as the Legislature intended to limit the conditions considered to be serious enough to warrant the use of medical marijuana as a treatment therapy.
Reviewing the list of “serious medical conditions” identified under the MMA, there are several that could potentially impact on workers’ compensation claims, involving work-related injuries arising within the course and scope of employment, likely being limited to the potential contraction of HIV/Aids, sometimes occurring in the medical profession, spinal cord injuries with intractable spasticity, neuropathies, post-traumatic stress disorder, and severe chronic or intractable pain of neuropathic origin.
If diagnosed with one of the enumerated “serious medical conditions”, the next question is how would a patient go about gaining access to medical marijuana?
The MMA provides several provisions that impact on accessibility, to include the patient being required to secure a medical marijuana card that can only be issued to a patient with a “serious medical condition”. This will require the patient to be under the continuing care of a physician registered with the Pennsylvania Department of Health.
The physician will be required to provide a signed certification to the patient, stating that the patient has a “serious medical condition”, with that certification then permitting the patient to apply to the Department of Health for an identification card.
So identified, the patient can then purchase medical marijuana at an authorized dispensary.
So now that the patient has been diagnosed with a “serious medical condition” and has secured the requisite identification card, and has been prescribed medical marijuana by a properly-certified physician, where will the prescription be filled for the patient?
To regulate dispensement issues, the Pennsylvania Department of Health will require physicians, whether medical or osteopathic doctors, to apply to the Department of Health to become registered as “practitioners”, in the course of which the physicians must complete formal training before becoming a registered practitioner.
Being registered as a “practitioner” will allow physicians to certify patients to use medical marijuana.
Similar registration and training procedures will be implemented for pharmacies to dispense medical marijuana.
How will the enactment of the MMA impact upon workers’ compensation claims and litigation in Pennsylvania?
Well, the MMA contains several provisions, specifically impacting upon employment relationships, to include:
· An Employer cannot discharge, threaten, refuse to hire, or, otherwise, discriminate or retaliate against an Employee, solely on the basis of the Employee being certified to use medical marijuana;
· There is no requirement that an Employer must accommodate the use of medical marijuana on the premises or property of the Employer;
· There is also nothing in the MMA that would limit an Employer’s right to discipline an Employee for being “under the influence of medical marijuana” when working, nor does the MMA prohibit the Employer from disciplining an Employee whose performance falls below the standard of care normally accepted for that position “while under the influence of medical marijuana…”;
· There is also nothing in the MMA requiring the Employer to commit any act that would put the Employer in violation of Federal law;
· The MMA also allows an Employer to prohibit an Employee from performing certain tasks, deemed to be life-threatening to the Employee or other Employees, if the Employee has a blood content of more than 10 nanograms of active THC per milliliter of blood;
· The MMA also allows an Employer to prohibit an Employee who is prescribed medical marijuana from performing any duty or task that is a safety risk, regardless of the financial harm to the Patient/Employee; and,
· The MMA also does not allow an Employee to be under the influence of medical marijuana, or be impaired, during the work day, or while performing his or her duties in the workplace.
Signed into law 6 months ago, the Pennsylvania Department of Health estimates that the process of actually implementing the state’s Medical Marijuana Program will take between 18 to 24 months, before access is actually available.
An unresolved question for Employers, Workers’ Compensation Insurers, and Administrators, will be whether to accept or decline liability for paying for medical marijuana prescriptions.
Consider that two of the “serious medical conditions” listed in the MMA, to include neuropathy and severe chronic pain, are currently regularly treated with excessive opiates, while the alternative of using medical marijuana as a substitute for pain medications might actually result in significant savings for Employers/Insurers.
To date, no specifics have been provided regarding the billing and pricing for medical marijuana treatments, nor is there any requirement under the MMA for Employers and Insurers to be responsible for the payment of medical marijuana prescriptions.
The opening scrawl in Reefer Madness was “the motion picture you are about to witness may startle you. It would not have been possible, otherwise, to sufficiently emphasize the frightful toll the new drug menace, which is destroying the youth of America in alarmingly increasing numbers. Marijuana is that drug—a violent narcotic—an unspeakable scourge—the Real Public Enemy Number One!”
Has the world gone mad?
So, the truth is, beyond the “trust us, we just get it”, that we are not mad, and that we are about to embark on a regulatory framework that will have significant impact on not simply the administration of workers’ compensation claims, but upon the actual workplace, in terms of issues related to accommodation, discrimination, and performance.
Enactment of the MMA will almost necessarily create procedural and administrative frustrations for Employers and Insurers, as it could well take years to streamline the implementation of the MMA, and the regulations that will need to be enacted to manage its impact on treatment and dispensing.
Trust us, we just get it! It is trust well spent!
We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
Every member of our Workers’ Compensation practice group is AV rated. Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.