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Medicare rules complicate settlements

Medicare rules

Workers compensation insurers in some states may have to reimburse injured workers for medical marijuana when the drug is considered a reasonable treatment. 

Some employer attorneys say the decision might affect future workers comp settlements. 

Bradley Andreen, a Pittsburgh-based comp defense attorney with the firm Rulis & Bochicchio LLC, said the issue may prevent some cases from settling. 

While many comp cases settle on the wage loss component, some settlements leave open future medical costs for injured workers, with the anticipation the case could settle at a later date, he said. 

Because many injured workers are on Medicare, settlements sometimes involve establishing Medicare set-aside trusts, since Medicare’s interests must be taken into account. 

But comp medical marijuana reimbursements could jeopardize settlements, which often contain wage loss and future medical components, because a federal program like Medicare would not be able to breach federal drug laws, Mr. Andreen said. 

“Medicare doesn’t pay for all medical expenses, and obviously they’re not going to pay for medical marijuana,” he said. 

Dan Anders, chief compliance officer for Delray Beach, Florida-based Tower MSA Partners, said comp settlements routinely include funds dedicated to non-Medicare-covered costs, but Medicare would likely just ignore a medical marijuana reimbursement request because it is illegal at the federal level. 

“Medicare’s not going to include the medical marijuana in the MSA (Medicare set-aside), so you’re not going to modify the cost of the MSA as a result,” he said. 

Brian Allen, vice president of government affairs for the pharmacy solutions team at Enlyte Group LLC subsidiary Mitchell International Inc., said that while a federal health program cannot reimburse for medical marijuana, he questions whether this would include Medicare set-asides since MSAs are considered comp settlements, not Medicare settlements. 

“I think it’s questionable,” he said. “It’s kind of a gray area. That’s one of the problems with the law the way it is right now, with all these conflicting federal and state statutes. It creates all these really nebulous areas of law.”