When the Pennsylvania legislature made medical marijuana legal in the Commonwealth, it provided the Pennsylvania Department of Education (PDE) 18 months to promulgate regulations regarding the use of the same in school by employees and students. It appears that draft regulations will likely be issued in the spring of 2017. However, the use of medical marijuana has become permissible already and, not surprisingly, schools are already facing questions about this issue from parents of students who have been prescribed the same.
By way of background, it is important to note that marijuana, medical or otherwise, still remains illegal under federal law, which complicates this issue even more.
New Guidance From PDE
In order to address the pressing issue of the use of medical marijuana in the schools by students, until the regulations are finalized next year, PDE has issued some guidance, for now, that states that the parent, guardian, or caretaker of a student who is lawfully permitted to take medical marijuana should be permitted to come to school and administer the same to the student, provided that the parent provides the school with the documentation to show the student is permitted under Pennsylvania law to take medical marijuana.
Once that is the case, under the PDE guidance, the school should provide a private and secure place for the student to take medical marijuana and require the parent to take all remaining paraphernalia and any extra marijuana with them when they leave the school. By way of background, it if important to remember that under Pennsylvania’s Medical Marijuana Law, neither edible or smoked forms of marijuana are permissible. In addition, most forms of medical marijuana would appear to have a different effect on patients than when used for recreation, and likely do not result in the “high” traditionally associated with marijuana use.
Lastly, the guidance provided states that no student shall be in possession of medical marijuana. The guidance does not address in anyway the possession of the same by employees.
Bottom Line for Schools
This guidance raises a number of possible concerns. First, it does not address the issue of what to do about the fact that this is still illegal under federal law and under a number of grants and other distributions of federal money, schools are still required to keep schools drug-free, so compliance with the PDE guidance could violate federal law.
One option to address this would be to permit students to leave school for a period of time to receive medical marijuana from their parents off campus, although that too raises significant potential issues.
Second, this may be indicative of what PDE’s final regulations may look like. Other jurisdictions that have medical marijuana have forbidden its presence on school grounds through statute or regulation, although it appears, based on this guidance, that is not the direction that PDE will be going. School entities should determine if they wish to make concerns about this issue known to PDE prior to its promulgation of the proposed regulations in the hope that PDE may change direction.
Lastly, this leaves the issue of special education under the IDEA, Section 504, and Chapters 14 and 15 unresolved in that the guidance permits the presence of medical marijuana on school property, although admittedly limiting it to administration by parents only, which would appear to make it difficult for a school to deny a request for a student who needs this medication to have it in school under Section 504, IDEA or Chapters 14 or 15.
In addition, to the extent that schools become aware of the fact that a student is taking medical marijuana, they should consider if the student is eligible under the IDEA or Section 504, given the conditions that would permit someone to take this drug are likely indicative of a qualifying disability.
If you should have any questions, please contact your legal counsel or an attorney from KingSpry’s Education Law Practice Group.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
