The Nova Scotia Human Rights Commission has ruled a benefits plan must cover a member’s medical marijuana prescription.
“Employee benefit plans are not required to cover the sun, moon, and the stars,” Benjamin Perryman, chair of the board of inquiry, wrote in his ruling. But if a member with a disability requests coverage similar to what other beneficiaries receive that’s consistent with the plan’s purpose, “more is required from a plan administrator than simply an assertion that its hands are tied by its policy and forms.”
Jonathan Zaid, the founder and executive director of Canadians for Fair Access to Medical Marijuana, won the right to have his medical marijuana prescription covered under his group benefits plan in 2015. He says the ruling is a great step forward for patients’ rights. “This is another thing that they can use to advocate to their plan sponsor to demonstrate the feasibility of covering medical cannabis.
“I think it has the potential to continue the conversation that patients are looking for coverage and it should be treated like any other medical necessity that’s covered under the plan.”
On Aug. 13, 2010, Gordon Skinner was working as an elevator mechanic for ThyssenKrupp Elevator Canada when he got into a motor accident while on the job. Because of physical and mental injuries sustained during the accident, he became unable to work and qualified for extended earnings disability benefits. In the two years following the accident, his injuries were treated with pain medication and anti-depressants, but both proved ineffective. So in the summer of 2012, he was prescribed medical marijuana, which provided significantly more pain relief.
Initially, ThyssenKrupp Elevator’s auto insurer, Cunningham Lyndsey, paid for the marijuana. But in May 2014, Skinner reached the policy’s $25,000 limit. He then approached his group benefits provider, the Canadian Elevator Industry Welfare Trust Fund, which is administered by Manion Wilkins and Associates Ltd. Manion Wilkins hasn’t responded to Benefits Canada‘s request for comment about the ruling.
The trustees denied coverage, however, because medical marijuana doesn’t have a drug identification number since Health Canada hasn’t approved it. They also determined that Nova Scotia’s public plan should cover Skinner’s medical expenses, since they resulted from a compensable workplace accident. Skinner unsuccessfully sought reconsideration in May and June 2014.
In October 2014, Skinner filed a formal complaint with the Nova Scotia Human Rights Commission, in which he alleged “discrimination in the provision of services on account of physical and mental disability.” In February 2016, the commission referred the complaint to a board of inquiry.
In his ruling, Perryman noted the welfare plan covers “reasonable and customary charges incurred for medically necessary drugs and medicines,” which include “all generic drugs and life-sustaining medications.” Its exclusions include over-the-counter drugs and non-medically necessary drugs such as weight loss pills.
Perryman also found the plan doesn’t limit the drugs it covers to those approved by Health Canada and noted it was significant that it includes both drugs and medicines. He also pointed to the main exclusion for drugs that don’t require a prescription. “Since medical marijuana requires a prescription by law, this suggests that it does not fall within this particular exclusion,” he wrote.
“The respondent shall forthwith begin providing coverage of medical marijuana for the complainant, up to and including the full amount of his most recent prescription,” Perryman concluded. “This coverage will continue until such time as: 1) the parties are able to reach an agreement regarding remedy that has been finalized by the board; 2) the board issues a final decision on remedy; or 3) an appropriate court has ordered otherwise.”
In a statement on the case, the Canadian Life and Health Insurance Association noted that it’s generally up to the employer to decide if it wants to cover medical marijuana under its group benefit plan. “We do not anticipate any impact on group benefit plans as each plan is unique but will be reviewing the ruling.”