New York’s Medical Marijuana

New York’s Medical Marijuana Outlook

New York’s Medical Marijuana program has provided doctors with a new tool to help claimant’s deal with debilitating pain. Nevertheless, the legality of the treatment option does not mean that Workers’ Compensation carriers will accept paying for it.  The question then turns to whether the Workers’ Compensation Board will authorize that treatment over the objection of the carrier.

Legally speaking, the New York Workers’ Compensation Board has expressly noted that they have the authority to compel a New York State Workers’ Compensation carrier to pay for medical marijuana under the liberal construction of WCL § 13(a). Whether the Board finds that a doctor’s request meets the threshold to trigger that action is another matter. The Board has made it clear that a treating provider that requests the use of medical marijuana must satisfy a number of prerequisites before a finding is made that the treatment is appropriate.

The first hurdle for patients is to seek out a medical provider specifically licensed and registered by the Department of Health to prescribe medical marijuana. The provider then must certify that their patient has one of the qualifying conditions under the Public Health Law.

New York’s Public Health Law permits the use of medical marijuana to be recommended to treat severely debilitating or life threatening conditions such as cancer, HIV, ALS, Parkinson’s disease, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington’s disease (see Public Health Law § 3360[7]). The regulation also allows for the use of medical marijuana to treat severely debilitating pain as an alternative to opioids use as long as the underlying condition is expressly noted on the patient’s medical marijuana certification. To complicate matters further, the patient must also have an associated condition: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms (see Public Health Law § 3360[7][ii]; 10 NYCRR 1004.2[a][9]).

If the treating provider finds that the claimant does qualify for the use of medical marijuana, the next step is getting it authorized by the carrier. Provider’s must adhere to the New York State medical treatment guidelines when seeking a specific treatment option. If that option is not covered by the guidelines, the doctor must then file a MG-2.0 variance form specifically noting that the patient/claimant adheres to the use of medical marijuana and explain why treatment options covered by the guidelines are not appropriate or sufficient. The doctor must also provide proof of his registration to prescribe medical marijuana as well as a copy of the claimant’s certification to legally obtain medical marijuana in New York. Only then will the Board consider the merits of the doctor’s request.

Unfortunately for injured workers in New York, carriers have been overwhelmingly successful in overturning Law Judges’ decisions to approve the use of Medical Marijuana on appeal. That does not mean it is impossible to obtain approval for medical marijuana, but only that any request by a doctor must precisely adhere to the Board requirements if they expect the Board to authorize the treatment over the objection of the carrier.

In the event you are seeking the use of medical marijuana as a treatment option in your claim, consult with an experienced Workers’ Compensation attorney to help navigate this process.

Timothy Finnegan

Associate Attorney

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