Major changes are underway in Illinois when it comes to the use of medical marijuana. On August 28, 2018, Gov. Bruce Rauner signed Senate Bill 336, a measure that significantly expands Illinois’ medical marijuana program by enabling patients to access medical marijuana in place of pharmaceutical opioid medications.
The new law, known as the Alternative to Opioids Act, is effective immediately and physicians will have the authority to offer medical marijuana as an alternative to any patient holding prescriptions for painkillers, such as Vicodin or Oxycontin.
SB 336 also lifts restrictions included in Illinois’ original medical marijuana law, the Compassionate Use of Medical Cannabis Pilot Program Act, which took effect January 2014. That law required providers to fingerprint and perform criminal background checks on all applicants. According to Illinois Policy, in 2017, the Illinois Department of Public Health denied 635 qualifying patients, some solely on the basis of failed background checks. The new law eliminates the fingerprint and background check requirements.
Prior to the passing of the Alternative Opioids Act, the Illinois Cannabis Pilot Program (ICPP) had approximately 38,000 licensed users. To qualify for medical marijuana under ICPP, you needed to certify that you have one of the 41 qualifying conditions. Under the new AOA, this number looks to increase substantially. In 2017, more than 2 million people received opioid prescriptions. Obviously the AOA will greatly expand the number of individuals who can qualify for medical marijuana.
The AOA is effective through June of 2020 (identical to the Illinois Cannabis Pilot Program).
As it stands now, it is unclear as to whether or how workers’ compensation insurers in Illinois will be required to pay for medical marijuana. Cannabis is still a Schedule 1 drug under Federal law. Schedule 1 controlled substances are defined as drugs, substances, or chemicals with no currently accepted medical use and have a high potential for abuse. However, there are 5 states that mandate the reimbursement of medical marijuana (Connecticut, Maine, Minnesota, New Jersey, and New Mexico). Conversely, Michigan is the only state that has passed legislation clarifying that employers are not required to reimburse injured workers for charges associated with medical marijuana treatment.
Also consider, effective January 1, 2016, the Illinois Compassionate Use Act provides what is often referred to as an “exclusionary provision.” It states “[n]othing in the Act may be construed to require a government medical assistance program, employer, property and casualty insurer, or private health insurer to reimburse a person for costs associated with the medical use of cannabis” (emphasis added). Other jurisdictions with similar language have struggled with how this language should be applied in the context of workers’compensation claims. The dispute is whether third party administrators or workers compensation insurers qualify as a “government medical assistance program, employer, property and casualty insurer, or private health insurer” to implicate this exclusionary provision. One major difference between the Illinois provision and other jurisdictions is that the Illinois exclusionary provision includes “employer” and “casualty insurer” which should support arguments that the exclusionary provision applies. Without further clarification, litigation seems likely.
Thus far, the Federal government has taken a “hands off” approach to medical marijuana laws enacted in state legislatures. It appears to be only a matter of time before recreational marijuana is legalized. Though the Commission has not weighed in on the reimbursement of medical marijuana, it likely will and when it does, it may well favor the petitioner if the general mood regarding marijuana is any indicator. In addition, it would not be surprising for the Legislature to mandate the reimbursement of medical marijuana as other states (listed above) have done so already.
For that reason, it is best practice to do the following when handling a case regarding medical marijuana:
- Obtain either a Utilization Review or a Section 12 examination for an opinion as to whether medical marijuana (and opioid prescription for that matter) is reasonable or necessary.
- Review drug, alcohol, and anti-smoking policies.
- If company policy includes a zero-tolerance provision, enforce it non-discriminately.
- Add provision to the drug policies for registered qualified patients making it clear that they cannot be under the influence at work.
I&F has presented extensively on this topic, as well as chronic opioid issues, in the past. If your organization would like to have us speak about these issues and strategies to effectively manage the changing environment, please do not hesitate to reach out to us.
Thanks to Frank Johnston for another timely update. Frank covers legislative issues and worker’s compensation claims on behalf of Illinois employers from the firm’s Champaign office.