Medicare does not cover CBD oil, but as research continues, that could eventually change. Prescribing CBD oil still is relatively unexplored territory for physicians in terms of legal liability. But medical boards want clarity.
CBD products are everywhere. But do they work?
By now, you’ve probably run into a product containing cannabidiol, also known as CBD. It’s in everything from drinks and pet products to lotions and chewable gummies. Even major drugstore chains have announced they will start carrying CBD products in certain states.
But many people still don’t really know what CBD is. Is it marijuana? Is it legal? Does it actually work? Is it safe?
The answers to those questions aren’t necessarily straightforward. The only thing that is clear at this point: The marketing has gone way ahead of the science and the law when it comes to CBD products.
That said, CBD is thought to be a safe and effective option for certain conditions. Below, we sort through the confusion by answering some of the most common questions about CBD.
Is CBD marijuana?
Yes and no. Cannabidiol is one of the two best-known active compounds derived from the marijuana plant. The other is tetrahydrocannabinol, or THC, which is the substance that that produces the “high” from marijuana.
CBD does not get you high, but the idea that it’s not psychoactive is something of a misconception in his opinion. It does change your consciousness. You may feel mellow, experience less pain, and be more comfortable. In addition, some CBD products do contain small amounts of THC.
While CBD can come from marijuana, it can also be derived from hemp. Hemp is a related plant with 0.3% or less of THC. This plant is often used to make fabrics and ropes. As of 2018, Congress made hemp legal in all 50 states, and consequently CBD derived from hemp is also legal. The rules around marijuana-derived CBD, however, are far less clear.
Is marijuana-derived CBD legal?
Again, yes and no, depending on where you live. In some states marijuana is legal for both recreational use and medical use. In other states, it’s legal only for medical use. And in some areas, it’s not legal at all.
When it comes to CBD products, the FDA is still trying to get its arms around the issue. The agency is just starting the process of hashing out some rules regarding CBD sales. Officials recently formed a working group to create guidelines that could allow companies to legally market CBD products. Currently, CBD products are considered supplements, which aren’t FDA-regulated, and it is illegal for companies to make health or therapeutic claims about the products in their marketing. In announcing its effort to set CBD marketing rules, the FDA also signaled that it is cracking down on CBD companies that are using “egregious and unfounded claims” to market their products to “vulnerable populations.”
Currently, there is only one CBD product that has FDA approval: a prescription medication called Epidiolex, used to treat some rare severe seizure disorders in children. The bottom line is that in order to understand whether CBD is legal where you live, you’ll need to consult your state health department website or professionals in your community.
Does CBD work?
Yes, there is evidence that CBD works for some conditions, but certainly not all the conditions it is being promoted for these days. There’s no evidence, for example, that CBD cures cancer. There is moderate evidence that CBD can improve sleep disorders, fibromyalgia pain, muscle spasticity related to multiple sclerosis, and anxiety.
People report that oral CBD helps relieve anxiety and pain and also leads to better sleep. However, the same may not be true for a host of other CBD products on the market today, in particular those that are rubbed on the skin. It’s hard to know whether these have any clinical benefit, because they haven’t been tested sufficiently.
Testing also shows that many products don’t contain what’s claimed on the label. For example, they may have less CBD than advertised. So, buyer beware.
Where should you purchase CBD products?
If you are interested in trying a CBD product, it’s best to seek one through a dispensary, which is an establishment legally licensed to sell marijuana, if they are available in your state. Dispensary products must be labeled so you can see exactly how much CBD is in the product and whether it also contains THC. A small amount of THC in a CBD product isn’t typically problematic. But larger amounts could cause a “high” and may present a risk if you are going to drive.
Also, keep in mind that CBD products aren’t standardized and will vary. It helps to keep a journal recording what type of CBD product you took, how much, and your response to it. This will help you track what works and what doesn’t for your condition.
Is CBD safe?
The safest way to take CBD is orally, as a tablet, chewable, or tincture (a concentrated liquid typically administered with a dropper). Steer clear of any illegally sold synthetic CBD products, sometimes called “spice” or “bath salts.” These products have induced psychotic reactions in some people and pose a major health risk.
For adults, CBD appears to be a very safe product. CBD does produce side effects for some people, including nausea, fatigue, and irritability. It may also interact with certain medications, so always check with your doctor before use.
But for children under age 21 it’s a different story. It’s also not clear if any amount of CBD is appropriate for children.
Evidence regarding CBD is still building. Now that some states have legalized recreational and medical use of marijuana products, including CBD, scientists are finding it easier to conduct research. More will be known in the next 5 to 10 years, including whether there are yet undiscovered problems associated with long-term use.
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Why Medicare Still Doesn’t Cover CBD Oil, And How That May Change
Cannabidiol (CBD) is now decidedly mainstream. In fact, CBD-based products have flooded the shelves of many pharmacies and grocery stores in various states. But what about CBD and Medicare? Medicare doesn’t cover CBD, despite its growing popularity.
Who Uses CBD Oil, and What Can it Treat?
A 2019 Gallup poll found that 14% of Americans report using CBD products such as chocolates, oils, fragrances, bath products, capsules, and lotions.
Despite limited research on the benefits of CBD, CBD proponents and manufacturers claim it can treat everything from cancer to anxiety. 40% of CBD users say they seek relief from pain. Other popular uses include anxiety (20%), insomnia (11%) and arthritis (8%). These conditions are notoriously difficult to treat. Traditional prescription drugs may cause unpleasant side effects, and do not offer relief to all sufferers. So the promise of a natural substance offering relief for these symptoms is very appealing.
CBD does have one clear, proven benefit. It can treat seizures associated with two types of epilepsy—Dravet syndrome and Lennox-Gastaut syndrome. In 2018, the U.S. Food and Drug Administration (FDA) approved a CBD-based drug, Epidiolex, for the treatment of these severe, rare forms of epilepsy.
Why Doesn’t Medicare Cover CBD?
Original Medicare (Parts A and B) only covers treatment received in a medical facility such as a hospital or doctor’s office. Part B covers a very limited number of prescription drugs, and CBD medications are not on that list.
Medicare beneficiaries have the option to purchase a Part D prescription drug plan in order to expand their drug coverage. They may also opt for private insurance through a Medicare Advantage (Medicare part C) plan, many of which cover prescription drugs.
However, even with a prescription drug plan, you cannot get coverage for CBD oil and other over-the-counter products. There are at least two reasons for this:
- There are no drug products containing CBD, other than Epidiolex, that are approved by the FDA.
- According to the Centers for Medicare & Medicaid Services, Part D plans only cover drugs that have been approved by the FDA.
If you have a prescription for Epidiolex and your Medicare Part D or Medicare Advantage plan covers the drug, then you can use Medicare to access this one medication containing CBD. However, a recommendation from a doctor that you try over-the-counter CBD oil is not sufficient for using Medicare to pay for any other product containing CBD.
Will Medicare Cover CBD Oil in the Future?
With so many potential uses of CBD, research is ongoing. If scientifically-rigorous evidence finds support for other CBD uses, manufacturers could develop CBD-based drugs for many conditions.
If these future drugs receive FDA approval, they could also become medically-recognized prescriptions. That would open the door to Medicare coverage. No such drug approvals are on the immediate horizon, althoughsearch leaves open the possibility that Medicare may eventually cover other prescription forms of CBD.
CBD oil and physician liability
Cannabidiol oil (CBD), a cannabinoid derived from cannabis that doesn’t create the “high” associated with marijuana since it lacks the cannabinoid THC, is gaining interest among health practitioners for its long list of potential benefits.
CBD oil for pain is one of the most widely discussed medical uses for the oil, although the list is much longer and includes seizure reduction, cancer treatment, anxiety relief and more cosmetic purposes such as acne reduction, among others.
There are three main issues with CBD oil for physicians who might prescribe it, however. First, cannabis and CBD oil remain illegal under federal law since it is classified as a schedule 1 drug under the Controlled Substances Act. More than 23 states have decriminalized its use for medical purposes, but this still comes in conflict with federal law and the Drug Enforcement Agency. Going near CBD oil in a healthcare setting is tricky.
Second, its status as an illegal substance makes it hard to test and run clinical trials that definitively prove its medical efficacy. This creates a vicious circle where marijuana and CBD are not fully legal because there is no data on its safety and efficacy, and its medical use in not proven because there is not enough testing due to being illegal.
Then there’s the liability of prescribing CBD oil and any product related to cannabis. Does the regulatory environment and the risk of malpractice outweigh the benefits for patients? This article will focus on this third challenge related to CBD oil for medical use.
Currently, prescribing CBD oil still is relatively unexplored territory for physicians in terms of legal liability. But medical boards want clarity.
In 2016, the Federation of State Medical Boards (FSMB) surveyed member boards regarding the issues related to cannabis and medical regulation. The survey found that the issues most important to board about CBD and marijuana included guidance on handling recreational use by physicians (31.4%), guidance on handling marijuana products for medical use by physicians (47.1%), and model guidelines for recommending marijuana products for medical purposes to patients (49.0%).
The trouble is that CBD oil, despite its potential medical benefits, lacks the certainty of an FDA-approved drug. The legal framework for that just isn’t there yet, which puts physicians in a bind.
To reduce the risk of liability, however, the FSMB has developed some guidelines for the recommendation of cannabis and cannabinoids such as CBD oil in medical settings as part of its Workgroup on Marijuana and Medical Regulation.
Guidelines for Minimizing Liability Around CBD Oil Recommendation
The FSMB workgroup recommends several conditions for safeguarding the ethical recommendation of cannabis-based products such as CBD oil for medical use.
1. Establish a Preexisting Medical Relationship with the Patient
To avoid questions of inappropriate prescription of CBD oil for medical conditions, the FSMB recommends that physicians first make sure they have a documented, existing medical relationship with the patient before recommending products such as CBD oil.
Consistent with prevailing ethical standards, physicians also should not recommend, attest or authorize CBD oil for themselves or family members.
2. Documented Patient Evaluation
A second key to reducing liability around recommending CBD oil for medical use suggested by the workgroup is taking extra pains to document that an in-person medical evaluation and collection of relevant medical history is performed before considering if CBD oil is appropriate for the patient.
While less applicable to CBD oil because it lacks the high of THC that is present in medical marijuana prescriptions, physicians should nonetheless also ensure the patient does not have a history of substance abuse. This ensures that physicians are covering their bases even if THC is not present in CBD oil.
3. Advise and Decide Together with the Patient
Physicians should discuss the risks and benefits of CBD oil with the patient before making a recommendation because CBD oil is clinically unproven and lacks the standardization present with many other potential treatments, according the FSMB workgroup.
This is key for minimizing the potential for liability because then the choice is not made by the doctor alone, shifting responsibility. It also is important because due to the current legalities of cannabis-related treatments, physicians cannot actually prescribe CBD oil—they can only recommend it as a possible treatment.
4. Include a Treatment Agreement
Physicians that recommend CBD oil should also document alternative options available to the patient in the form of a treatment agreement.
- Review of other measures attempted to ease the suffering caused by the terminal or debilitating medical condition that do not involve the recommendation of CBD oil.
- Advice about other options for managing the terminal or debilitating medical condition.
- Determination that the patient with a terminal or debilitating medical condition may benefit from the recommendation of CBD oil.
- Advice about the potential risks of the medical use of CBD oil, including the variability of quality and concentration of CBD oil.
- Additional diagnostic evaluations or other planned treatments.
- A specific duration for the CBD oil authorization for a period.
- A specific ongoing treatment plan as medically appropriate.
5. Avoid Any Other Relationship with Cannabis-based Products
Finally, one of the most important ways that physicians can reduce the potential liability from recommending CBD oil is by having a clear and impartial relationship to CBD oil and marijuana in general.
That means that doctors should not have a professional office at or near a marijuana dispensary or cultivation center, or receive compensation from or hold a financial interest in a CBD-related business.
By clearly demonstrating that the recommendation of CBD oil is for medical purposes and not based on personal considerations, physicians will help cut the liability associated with CBD recommendation.
That noted, there is no clear-cut way to completely reduce liability when recommending CBD oil to a patient any more than there is a way to completely eliminate the chances of malpractice when advising patients. Some potential for liability is inherent.
As the use of CBD oil and marijuana for medical purposes increased, and further standards and regulations develop, recommending it should become less legally fraught. Until then, reducing the potential risk of liability is the best that physicians can do in the case of CBD oil.
This article is for information only, and does not constitute legal advice.