Medical Marijuana

NM Proposes Marijuana Reimbursement Rules for WC Payers

Despite ongoing controversy, the New Mexico Workers’ Compensation Administration is attempting to provide reimbursement guidance on medical marijuana.
By: | November 2, 2015

Injured workers in New Mexico could get up to 8 ounces/226.8 grams of marijuana per calendar quarter at a cost of $12.02 per gram. The proposed maximum payment came despite the controversy over requiring payers to foot the bill for a drug that is illegal under federal law.

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The proposal from the New Mexico Workers’ Compensation Administration follows recent state Court of Appeals decisions saying employers may be forced to pay for medical cannabis as a reasonable and necessary medical treatment. The WCA said it is charged with enforcing the state’s laws as interpreted by the courts.

“The proposed rule regarding medical cannabis is offered as a compromise and to provide some guidance to workers and payers,” the WCA said in its Response to Public Comment on Proposed Rulemaking.

The proposal from the New Mexico Workers’ Compensation Administration follows recent state Court of Appeals decisions saying employers may be forced to pay for medical cannabis as a reasonable and necessary medical treatment.

“The rule delineates certain eligibility requirements for reimbursement of medical cannabis and follows a method similar to the rules governing travel reimbursement to attend medical appointments.”

The WCA added medical marijuana to its Payment for Health Care Services as of Oct. 1, defining it as “medical cannabis in the form of flower, bud, cannabis derived products, edibles, oils, tinctures, or any other form regulated by the department of health.”

Medical marijuana would be allowed if an authorized provider certifies that other treatment methods have failed.

The specifics of payment are proposed in the health care provider fee schedule. The WCA outlined some of the initial concerns from the public in its response document.

“Opponents of the rule mentioned several consequences, including jeopardized eligibility for federally-based programs, exposure to criminal prosecution at the federal level, exposure to civil racketeering lawsuits filed on behalf of anti-marijuana and/or other stakeholder groups, and aiding and abetting and conspiring in the commission of a federal crime defined by the Controlled Substances Act,” the WCA wrote.

“A concern was also expressed about workplace safety because Colorado courts have had to address issues involving workplace deaths where the worker used marijuana.”

Additional concerns included:

  • The proposed regulations are not consistent with the state’s adoption of the Official Disability Guidelines.
  • Medical marijuana has not been proven as a safe and effective way to treat diseases or medical conditions.
  • There are no National Drug Codes assigned to medical marijuana.
  • Approval of medical cannabis to treat chronic pain has not been obtained.

Several people who commented had questions such as how the WCA would include the drug in the fee schedule when there are “diverse types of marijuana for purchase, including edible varieties.” Others asked what documentation would need to be furnished to show “that other treatment methods have failed.”

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The WCA amended some of the original provisions in the proposed rule as a result of the comments. For example, the reimbursement for paraphernalia as defined by the Controlled Substances Act “shall not be reimbursed,” the agency said.

As to questions about how fees for reimbursement will be determined, the WCA amended the proposed rule to say the “worker shall submit an itemized receipt issued by a licensed producer that includes the name and address of the licensed producer and the worker, the date of purchase, the quantity in grams of dry weight and form of medical cannabis purchased, and the purchase price.”

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]