We usually preserve our distance from medical hashish/marijuana.  We’re not a type of blogs.  But when authorized holdings of curiosity to us occurs to contain hashish, we’ll remark.  Thus, we deliver you Schmidt v. Schmidt, Kirifides & Rassias, PC, ___ A.3d ___, 2023 WL 7502499 (Pa. Commw. Nov. 14, 2023), holding that the price of authorized, physician-prescribed medical marijuana is legit medical expense reimbursable by way of the Pennsylvania Employee’s Compensation system, however such merchandise’ full lack of FDA approval.

The claimant had switched to a kind of prescription medical marijuana (cannabinoid (“CBD”) oil) and away from the opioid medication he had beforehand been taking for a work-related damage.  Id. at *1-2.  Nonetheless, the employer “refused to reimburse Claimant’s out-of-pocket CBD oil bills on the premise that CBD oil just isn’t a pharmaceutical drug.”  Id. at *2.  The executive legislation choose discovered that this remedy with medical marijuana was medically acceptable, and the truth that it was obtainable over-the-counter didn’t exclude it from protection.  Id. at *3-4.

Nonetheless, the board that oversees Pennsylvania’s employees’ compensation program reversed, holding that FDA warning letters regarding this product precluded reimbursement:

Based mostly on the acknowledged place and up to date actions of the FDA, an insurer or employer can’t be required to pay for hashish or cannabis-derived merchandise . . . .  Subsequently, Employer’s failure to reimburse Claimant . . . just isn’t a violation of the Act. . . .  Discovering a violation right here is concomitant to driving an employer to violate federal legislation.

Schmidt, 2023 WL 7502499, at *5 (quotation and citation marks omitted).

On additional enchantment, the Pennsylvania Commonwealth Courtroom (an intermediate appellate court docket with jurisdiction over, inter alia, administrative appeals) reversed.  That the treatment was bought OTC didn’t matter.  Somewhat,  the “Claimant want solely present that CBD oil is a drugs or provide.”  Id. at *12 (quotation omitted).  These phrases weren’t restricted to prescription-only merchandise:

[T]he time period “medical provides” is outlined as “[a]ny merchandise that’s important for treating sickness or damage.”  Right here, [claimant’s physician] prescribed CBD oil to Claimant to deal with his ache.  The CBD oil has benefitted Claimant’s well-being by lowering his ache, eliminating his want to extend using extremely addictive opioid medicines, and forestalling costly and dangerous surgical procedure. Accordingly, CBD oil suits inside the definitions of “medicines” and “provides.”

Schmidt, 2023 WL 7502499, at *14 (citations and footnote omitted).  Additional, decision of points like OTC standing was inside the scope of unbiased “utilization evaluate” (“UR”)  − a statutory “treatment” that the employer had failed to hunt.  Id. at *15.  Lastly, given the Employee’s Compensation Act’s “humanitarian targets,” if the act was to be construed to bar reimbursement of OTC merchandise, that may require legislative motion.  Id. at *20.

FDA non-approval of medical marijuana likewise made no distinction.  “FDA approval of a remedy just isn’t a requirement underneath the Act.”  Id. at *21  “[W]hether a remedy is FDA permitted for a specific objective must be raised inside the framework of the  UR course of.”  Id. at *15.  Having legalized medical marijuana, Pennsylvania was underneath no obligation to observe FDA limitations on what was medically reimbursable.  “[T]hat some corporations advertising and marketing CBD merchandise could violate federal legislation . . . doesn’t make Claimant’s use or Employer’s reimbursement for CBD oil unlawful.”  Id. at *17.  Nor did marijuana’s continued illegality underneath federal legislation make employer reimbursement by some means “unlawful.”  All of the employer was required to do was pay cash for medical remedy discovered “affordable and essential” underneath Pennsylvania’s employees’ compensation scheme:

For the reason that employer just isn’t prescribing marijuana, however quite reimbursing the claimant for his lawful use thereof, the employer just isn’t in violation of federal legislation. . . .  As a result of the employer wouldn’t be in violation of federal legislation by reimbursing the claimant for his lawful medical marijuana use, and the [administrative judge] concluded that the medical marijuana use was causally associated to the work damage, the employer is required to reimburse the claimant for his out-of-pocket prices underneath the [Workers’ Compensation] Act.

Schmidt, 2023 WL 7502499, at *18 (citations and citation marks omitted).  FDA non-approval didn’t matter the place a hashish product “is lawfully bought over-the-counter in Pennsylvania and all around the United States.”  Id. (quotation and citation marks omitted).

We’ve acknowledged quite a few occasions that state legislation, not FDA regulatory standing, governs the legality of off-label use.  Schmidt is attention-grabbing to us as a result of it goes one step past – medical marijuana, together with CBD oil, has no FDA approval for any use.  With nicely over half the states having legalized medical use of hashish, persevering with federal inaction on this situation dangers the FDA being left behind.