Medical marijuana (“MMJ”) is the use of the unprocessed marijuana plant, or its basic extracts, to treat a disease or symptom. Studies have shown that medical marijuana can assist patients suffering from serious medical conditions by alleviating pain and improving their quality of life.
Governor Tom Wolf signed Act 16 into law on April 17, 2016, legalizing the production, sale, and use of MMJ in Pennsylvania. While implementation of the Commonwealth’s MMJ program is to be completed in 2018, the Department of Health is currently issuing “Safe Harbor Letters” (“Letter”) to enable parents, legal guardians, caregivers and spouses of minors under the age of eighteen (18) who have been certified as having serious medical conditions to possess MMJ in approved form and administer it to their minor within the Commonwealth.
What do Pennsylvania school districts do when parents show proof of their Letter and request that MMJ be administered on school grounds to their child?
First, remember: maintaining drug-free educational environments is a particular requirement for public school funding under the Every Student Succeeds Act (see, e.g., 20 U.S.C.A. § 7118). Under the Uniform Grants Guidance, a condition of federal funding is to comply with federal laws, and at this point, possession of marijuana anywhere remains a criminal offense, with enhanced penalties for acts occurring in or near schools.
Therefore, unless there is some change in federal law with regard to state-authorized MMJ use, this requirement puts public schools in a bind that state laws and regulations cannot undo. Let’s hope the pending Pennsylvania regulations clear this up.
The Letter regulations explain that the Letter allows the applicant (for the Letter) to administer MMJ to a minor. Note that this is not a letter “held” by the student, but is a letter conveying a right to an adult to administer the MMJ to a minor. Neither the regulations, nor the recent PennLINK, allow school staff to handle MMJ products in school at this time. The Letter regulations also state, “The United States Government has determined that marijuana is a controlled substance. Growing, distributing, transporting, possessing, and using marijuana in any capacity, except as part of a Federally-authorized research program, is a violation of Federal law.” So the Pennsylvania regulations allow the administration of MMJ to a minor, but make it clear that it is a federal crime.
Great information, but what do districts do?
Because districts would be violating those federal laws if they knowingly permitted a parent/caregiver (person allowed to administer) to bring MMJ onto their campuses during the school day to administer it to their children, and although districts do not want to interfere with the medical needs of students (and may have an obligation under federal and state laws to accommodate a disability), districts should temporarily release a child to the parent/caregiver to whom the Letter was issued during the school day, for the purpose of off-campus administration of MMJ. This is the only way to allow the student’s medical needs to be addressed (if MMJ even needs to be administered during the school day rather than before/after) while avoiding the conflict between state and federal law and potentially risking receipt of federal dollars.
NOTE: Safe Harbor Letters are only valid until:
- May 17, 2018 or if the Commonwealth’s Medical Marijuana Program becomes effective, whichever occurs first;
- The minor reaches the age of 18;
- The applicant (adult) dies or is no longer capable for carrying out the applicant’s responsibilities;
- The minor changes physicians;
- The minor no longer suffers from the serious medical condition that required use of MMJ; or
- The minor establishes residency in another state.
If/when parents indicate they have a Safe Harbor Letter for their child, it will be your obligation to work with the family and your district to assure the family that they can administer the MMJ during the school day but it cannot be on district grounds.
For more information, contact our School Law Group.