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April 26, 2018
The N.S. Court of Appeal has reached two decisions ending one employee’s quest for coverage of the costs of his medical marijuana – at least for now. On April 12, 2018, the Appeal Court disagreed with the Human Rights Board of Inquiry’s decision that denial of coverage for the medical marijuana under his health benefits plan was discriminatory in Canadian Elevator Industry Welfare Trust Fund v. Skinner. This follows the Court’s March 9, 2018 decision that upheld the Workers’ Compensation Tribunals’ decision to deny the employee compensation for medical aid in the form of medical marijuana under Workers Compensation Act in N.S. Workers’ Compensation Act in Skinner v. Nova Scotia (Workers’ Compensation Appeals Tribunal).
The Appeal Courts’ decisions settle two key medical cannabis coverage questions. Whether the employee will apply to the Supreme Court of Canada for permission to appeal both decisions to that Court remains unanswered. And health benefits providers still need to answer the question: what’s your medical cannabis coverage strategy?
Key Considerations for a Medical Cannabis Coverage Strategy
For health benefits providers, developing an overall medical cannabis strategy and ensuring plan provisions accord with that strategy is critical to their ability to prudently and fairly process claims, including justifying benefits coverage denials. The strategic question to ask: exclude coverage of medical cannabis altogether – or cover it, but focus on cost control?
Exclude Medical Cannabis Coverage. This strategy entails benefits providers clearly and justifiably expressing any medical cannabis coverage exclusions, and doing so in relation to the plan coverage language as a whole. This includes narrowly defining one or all of “drug”, “prescription drug”, “medicine”, “prescription” and “medically necessary”.
Control Medical Cannabis Costs. This strategy entails covering medical cannabis, but controlling the costs. Examples include limiting coverage by:
N.S. Court of Appeal Puts a Lid on Medical Pot Coverage
Here’s how the N.S Court of Appeal put the lid on medical pot coverage under a health benefits plan and the N.S. Workers’ Compensation Act.
No Coverage Under Health Benefits Plan. The Appeal Court’s April 12, 2018 decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner answers the question raised by the N.S. Human Rights Board of Inquiry decision: can exclusion of medical cannabis coverage, even if the plan language excludes it, still be discriminatory on the basis of disability under human rights law? The insured’s doctor prescribed him medical cannabis that, admittedly, worked when conventional drugs didn’t. The insured applied for coverage of the medical cannabis under his health benefits plan. The benefits provider denied coverage because the plan wording excluded drugs Health Canada hasn’t approved (which includes medical cannabis). The insured lodged a human rights complaint alleging the denial discriminated against him based on physical disability and the N.S. Human Rights Board of Inquiry agreed. The health and welfare trust appealed to the N.S. Court of Appeal. The high stakes of this appeal were evident by the facts a medical cannabis producer said it would fund the insured’s defence of the appeal, and multiple other groups intervened in the appeal. The Court disagreed with the Tribunal and concluded it is not discriminatory for a private drug plan to limit reimbursement for the cost of drugs to only those approved by Health Canada. Acknowledging that “[b]enefit plans are necessarily limited in many ways”, the Court concluded:
No Medical Aid Under Workers’ Compensation Act. The Appeal Court’s March 9, 2018 decision in N.S. Workers’ Compensation Act in Skinner v. Nova Scotia (Workers’ Compensation Appeals Tribunal) answered the question raised by the N.S. Workers’ Compensation Appeals Tribunal (WCAT): is the N.S. Workers’ Compensation Board’s (WCB) Policy restricting medical aid to health care that (among other things) is “consistent with standards of health care practices in Canada” valid? The employee sustained his original injury in the course of employment so he also applied for medical aid in the form of the prescribed medical marijuana under the N.S. Workers’ Compensation Act. The case manager and then the case worker denied the claim for the same reason: per the WCB Policy, medical aid is available only for healthcare that is “consistent with standards of health care practices in Canada”, and prescription use of medical marijuana was not consistent with Canadian health care standards. The WCAT agreed and dismissed the worker’s appeal. The worker appealed to the N.S. Court of Appeal, which concluded the WCB Policy is valid – and so is the denial of coverage.
Please contact your McInnes Cooper lawyer or any member of the Pensions & Benefits Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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