Medicare And Medicaid Officials Seek To Clarify That Marijuana And CBD Aren’t Covered By Federal Health Programs

The federal Centers for Medicare & Medicaid Services (CMS) is moving to clarify that marijuana products are not eligible for coverage under certain health plans for chronically ill patients because “they are illegal substances under Federal law.”

The agency is also including CBD on a separate list of items that cannot be covered as a supplemental benefit.

In a notice set to be published in the Federal Register on December 10, CMS proposed a series of policy and technical changes for its Medicare Advantage (MA) program and other services, including rulemaking related to cannabis products.

CMS, which is part of the U.S. Department of Health and Human Services (HHS), said it is proposing to “codify a non-exhaustive list of non-primarily health related items or services that do not have a reasonable expectation of improving or maintaining the health of a chronically ill enrollee and therefore cannot be offered as” special supplemental benefits for the chronically ill (SSBCI).

The agency put “alcohol, tobacco, and cannabis products” on that list, which also includes funeral expenses, life insurance and hospital indemnity insurance.

“CMS has received inquiries from MA organizations about whether they are permitted to offer cannabis-based products as a supplemental benefit,” it said. “In response to these inquiries, CMS has stated that medical marijuana or derivatives, such as cannabis oil, cannot be covered by MA organizations as they are illegal substances under Federal law.”

CMS separately said that it is proposing to include cannabidiol, or CBD, in a list of items the agency “determined not to be permissible MA supplemental benefits because they do not meet the requirement that the item or service be primarily health related.”

CBD was among numerous examples of products that CMS developed after getting feedback that a “non-exhaustive list of acceptable and non-acceptable items” could “provide further clarity for MA organizations” when considering what can be covered under their plans.

“We solicit comment on these listed items and may revise the list based on feedback received,” CMS said.

After the proposed rule is formally published in the Federal Register, a public comment period will be open through January 27 to collect input ahead of any final rulemaking decision.

In 2021, HHS and the governor of California’s office looked into whether hospitals and other healthcare facilities in legal marijuana states can allow terminally ill patients to use medical cannabis without jeopardizing federal funding.

The move came in response to a request from California Sen. Ben Hueso (D), who sponsored a bill that was meant to codify that California hospitals can permit such treatment.

At the time, the senator had received a letter from CMS stating that there were no federal regulations in place that specifically addressed this issue and that it wasn’t aware of any cases where funding has been pulled because a hospital allows patients to use medical cannabis.

Meanwhile, President-elect Donald Trump recently selected physician and TV personality Dr. Mehmet Oz to oversee CMS, potentially adding a pro-medical marijuana voice to the forthcoming administration. It’s unclear how that might affect the agency’s rulemaking, including this latest CMS proposal.

Robert F. Kennedy Jr. is Trump’s pick to lead HHS, which oversees CMS. And if confirmed, he’ll have the chance to advance major drug policy reforms he’s championed such as promoting access to psychedelics therapy and reshaping federal marijuana laws.