View

Trump Administration May Have Triggered Process to Legalize Prescription Medical Marijuana

On October 10, 2018, the Food and Drug Administration (FDA) issued a notice for public comment on the impact of drug scheduling on the availability of 16 substances for medical use, including cannabis, under the International Drug Scheduling; Convention on Psychotropic Substances. The comments will be used by the Secretary of Health and Human Services to prepare recommendations, which will be submitted to the World Health Organization (WHO) to consider whether cannabis should be removed from Schedule I, and reclassified or unclassified as a controlled substance. This issue is currently under critical review by the WHO, and will be addressed at the Expert Committee on Drug Dependence Meeting in November.

Currently, under the Convention on Psychotropic Substances, cannabis is classified as a Schedule I drug, making it illegal in the signatory states. The Schedule I designation precludes the drug from being prescribed by healthcare professionals, and restricts its use in medical research.
If the United Nations removes cannabis from Schedule I and reclassifies it to a lower schedule, this could pave the way for cannabis being removed from Schedule I under the U.S. Controlled Substance Act. Section 811(d) of the Controlled Substance Act provides a mechanism for scheduling, or rescheduling, a controlled substance whenever the U.S. receives notice of a change in designation of a controlled substance under the Convention of Psychotropic Substances.

The reclassification of cannabis from Schedule I to a lower classification could have a significant impact on whether or a not a workers’ compensation insurance carrier must pay for an injured worker’s medical marijuana.

While Section 2102 of the Pennsylvania Medical Marijuana Act states, “Nothing in this Act shall be construed to require an insurer or health plan whether paid for by Commonwealth funds or private funds to provide coverage for medical marijuana”, there is nothing specifically prohibiting an insurance carrier from paying for medical marijuana. Because cannabis is currently classified as a Schedule I controlled substance under Federal law, doctors cannot prescribe cannabis, but can make a recommendation for its use under the Medical Marijuana Act.

Under the Pennsylvania Workers’ Compensation Act, an employer/insurance carrier is required to pay for all reasonable, necessary, and related treatment for a compensable work injury. A treatment’s reasonableness and necessity is determined under the Act through the utilization review process. As long as cannabis remains a Schedule I controlled substance, there is a valid argument that its use as treatment cannot be considered reasonable as a matter of law, because the prescribing, sale, purchase, and use of cannabis is a violation of the Controlled Substance Act. However, if the Schedule I designation is removed from cannabis, it appears that medical marijuana can be prescribed legally under federal law, and therefore, should be reviewed under the utilization review process as any other non-Schedule I medication.

For anyone wishing to submit a comment to the Food and Drug Administration, all comments must be received on or before October 31, 2018 at www.regulations.gov