A lawsuit challenging the refusal of health insurance companies to cover the cost of medical cannabis has been moved to federal court, for now.
The lawsuit, filed earlier this year by a group of medical cannabis patients and a marijuana company, originally asked a federal court judge to order New Mexico health insurance companies to cover the cost of medical cannabis to members. The seven insurers filed the lawsuit in federal court, arguing that it is the proper venue because the plaintiffs’ claims are subject to federal law.
In June, six New Mexico cannabis patients and cannabis manufacturer Ultra Health filed a class action lawsuit, arguing that the recent implementation of a state law requiring insurers to pay for medical practices should also include medical cannabis. Also, last week, lawyers for the insurance companies moved the case to federal court, arguing that the federal Employee Retirement Income Security Act, which sets standards for most health insurance plans, “supports” the plaintiffs’ claims. Lawyers for the insurance companies also agreed to move the case to federal court because the case “raises controversy and conflicts of federal law,” especially if the federal Controlled Substances Act allows the government to order the supply of substances that were not approved by the state. The final ruling justifying the move to federal court states that the type of lawsuit the defendants filed must be in federal court.
The case came just a few months after it was launched state law which restricts cost-sharing for behavioral health. After signing the bill into law, Governor Michelle Lujan Grisham praised the bill in a press release.
“We can make a real, meaningful difference by lowering the cost of insurance for those seeking help by eliminating copays for health services — and I’m proud and excited to sign this,” said Lujan Grisham.
The government agency responsible for managing insurance said the department, which is one of the governor’s ministries, does not have the power to compel insurance providers to pay for cannabis.
One of the plaintiffs is an Albuquerque attorney and Sen. Jacob Candelaria of the state of New Mexico. Candelaria, who is not a lawyer in the case, has been open about her marijuana use and her role as a marijuana patient for several years. He has litigated workers’ compensation cases in the past.
Candelaria said NM Political Report that he sees the case being moved to federal court as a means of representation.
“I am not at all surprised by the process to be moved except that it is not the first option to be moved “We’ll see from them,” said Candelaria. “But I have every confidence that this case will be heard in state court, not federal court, where a federal judge will see what New Mexico is, as enacted by the Senate Bill 317.”
The federal judge assigned to the case could send the case back to state court or the plaintiffs’ lawyers could file a motion to return it to a lower court. And while Candelaria is not part of the legal negotiations, he said based on his legal experience, nothing would require a federal judge’s decision.
“In order to succeed, we must show that Senate Bill 317 says what it says. This does not require any court to know what the federal law means, does not allow, etc.,” said Candelaria. “The judiciary passed this law knowing what the government is saying.”
Duke Rodriguez, CEO and president of Ultra Health, has filed numerous legal cases related to cannabis, and his previous positions include Chief Operating Officer of Lovelace Health Plan and the New Mexico Secretary of Human Services, agreed with Candelaria that moving to federal court is a last resort. But Rodriguez said the federal court filing, which lawyers for the insurance claims included about cannabis, found Rodriguez “deeply offensive, offensive, even discriminatory.”
“In their plea, they deny using the word cannabis,” Rodriguez said. “And everything that is said is marijuana.”
Although cannabis is the scientific term for the plant, many have objected to the use of the term marijuana, claiming that the term originated in the US. because of discrimination.
Rodriguez said he hopes insurers consider the hundreds of thousands of medical cannabis patients in New Mexico who are also enrolled in one of the provider’s plans.
“These insurers need to think carefully about the message they are sending to the 135,000 elderly Mexicans when they choose a health plan, which they enroll in.
According to the New Mexico Department of Health, there were 134,101 patients enrolled in the state’s Medical Cannabis Program. Of the patients, more than 50 percent received recommendations from medical professionals to use medical cannabis to reduce the symptoms of post traumatic stress disorder. Opioid use disorder and autism spectrum disorder each account for less than 1 percent of medical cannabis patients in New Mexico.
The state’s Department of Regulation and Licensing reported more than 16.5 million transactions in the sale of cannabis in June. This figure is down nearly $1 million from sales in May. Sales of medical marijuana in May also fell by about the same amount compared to April, when sales for recreational use took off.
Regardless, the sale of cannabis in June drops to $120 per registered patient. The price of cannabis flowers in New Mexico ranges from about $8 to $15 per gram. It’s hard to say what constitutes light, moderate or heavy use of cannabis and some illnesses may require frequent use, but Candelaria, who uses marijuana to deal with PTSD symptoms from childhood abuse, said she’s lucky that they can afford it. $1,000 a month spent on marijuana.
“I can pay out of pocket,” he said. “I spend $1,000 a month on marijuana, and I can afford it. A lot of people can’t afford it, that’s why I’m in this fight.”