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(This story is part of the cover package in the November-December issue of MJBizMagazine.)
Moving marijuana from Schedule 1 to Schedule 3 under the Controlled Substances Act could influence whether and how doctors recommend medical cannabis.
It also could have important ramifications for persuading insurance companies to pay for marijuana treatments for medical patients.
Currently, doctors do not prescribe state-regulated medical cannabis because they risk losing their licenses for prescribing something not approved by the U.S. Food and Drug Administration.
That would not change if the U.S. Drug Enforcement Administration reschedules marijuana: Doctors would still be barred from prescribing state-regulated MMJ products.
Doctors could, however, continue to recommend state-regulated, non-FDA-approved marijuana products to people seeking MMJ cards so they could register as cannabis patients with the state.
If the DEA moves cannabis to Schedule 3, doctors would be allowed to prescribe FDA-approved cannabis medicines.
That’s because physicians currently are permitted to prescribe Schedule 3 products only if they have FDA approval, such as Tylenol with codeine.
“Assuming that there are new, FDA-approved cannabis drugs, a licensed physician with proper DEA registration to prescribe controlled substances would be able to prescribe that drug,” said attorney Eric Berlin, who heads the U.S. and global cannabis practice at international law firm Dentons.
“In the state-legal (marijuana) system, a physician is recommending.”
Leah Sera, the co-director for the University of Maryland’s Graduate Studies in Medical Cannabis program, agreed.
“Physicians prescribe Schedule 3 substances, so (rescheduling) would be a huge change,” Sera said.
She cautioned that “it’s not likely to be as broad as … the things that are currently in dispensaries. So even if (rescheduling) occurs, drugs would have to go through the FDA approval process and be approved before they could be prescribed and sold and dispensed in pharmacies, like we think about with regular prescription drugs.”
Rescheduling could induce greater research and cannabis drug development.
But receiving FDA approval takes years, so it would likely be a long time before any prescriptions are written for new marijuana-related products, said Justin Brandt, partner with the Bianchi & Brandt law firm in Scottsdale, Arizona.
The one cannabis plant-based drug that doctors can prescribe is Epidiolex, which the DEA removed from the controlled substances list in 2020 and is used to treat seizures in certain patients.
Doctors would be allowed to write prescriptions not just for Epidiolex but also other cannabis products that receive FDA approval, something that would become more common as companies research and develop cannabis-based products, Brandt said.
Encouraging marijuana knowledge
While rescheduling would not permit doctors to prescribe medical marijuana sold at state-licensed dispensaries, Sera is hopeful that rescheduling could warm skeptical physicians’ attitudes toward cannabis.
“Acknowledging cannabis as medicine is a big step forward in reducing the stigma associated with cannabis,” Sera said.
“Whether that means that physicians or other prescribers will be more comfortable recommending non-(FDA)-approved cannabis products, I don’t know.
“But I do think that if this happens, it will mean that prescribers will be more comfortable talking to patients about cannabis and the potential benefits and the potential risks of using it, whether or not they’re actually prescribing medications.”
That’s a good thing, Sera said, because the public is hungry for information about medical marijuana, but “many medical providers aren’t knowledgeable or comfortable with having those conversations.”
Rescheduling, she added, would motivate medical providers to become more knowledgeable about medical marijuana so that they can have informed discussions with patients and “participate in shared decision making about cannabis and its medical value.”
If marijuana is moved to Schedule 3, FDA-approved marijuana products will become eligible for insurance coverage, Dentons attorney Berlin noted.
“Insurance will cover FDA-approved drugs, but it will not cover non-FDA-approved drugs,” he added.
That said, there are at least six states that explicitly allow workers’ compensation reimbursement for medical marijuana, according to the American Academy of Actuaries: Connecticut, Minnesota, New Hampshire, New Jersey, New Mexico and New York.
The organization also reported that in 14 states, insurance carriers aren’t required to reimburse an injured worker for medical marijuana, which leaves open the possibility that insurance companies could voluntarily reimburse MMJ costs.
Some states, such as Massachusetts, outright prohibit insurance coverage for medical marijuana.
Julie Schum, a partner with the law firm Quintairos, Prieto, Wood & Boyer, where she focuses on workers’ comp and cannabis practices, told PropertyCasualty360, an insurance industry trade publication, that insurers might find that covering medical marijuana is more cost-effective than covering opiates.
In 2022, more than 30% of workers’ comp claims had at least one opiate prescription – and 27% had more than one, according to the Centers for Disease Control and Prevention.
“I had a case when the MSA (Medical Savings Account) was $550,000. We transitioned the person to medical cannabis and the MSA dropped to $100,000,” Schum told PropertyCasualty360. MSAs are private companies that the federal government pays to administer Medicare and Medicaid benefits.
“We upped the settlement by roughly $50,000 to account for the cost of cannabis for the rest of their life. So, $150,000 as opposed to $550,000.”