Seizures at College: Arizona Federal Court Says Concept Protections Do Not Extend to Healthcare Cannabis Use


We’ve written a lot about cannabis and the Controlled Substances Act.  From immigration to waste dumping. From the Fair Labor Requirements Act to the STATES Act, our articles run the gamut. Not lengthy ago we wrote about a choice by the Second Circuit that may possibly force the DEA to re- or deschedule marijuana following writing about the lawsuit when it was very first filed final year. This lawsuit, you may possibly recall, was brought by a group of 5 plaintiffs comprised of a kid who makes use of cannabis oil effectively to treat life-threatening seizures, a further kid who treats with cannabis for Leigh Syndrome, a terminal neurological disorder, a former NFL linebacker, an Iraq War veteran, and a nonprofit. As sympathetic a group of plaintiffs as there ever have been – and in my eyes equaled by the parents and kid in the discussion that follows.

A current federal court choice addresses the connection involving the Controlled Substances Act, the People With Disabilities Education Act (“IDEA”), and state laws permitting the health-related use of cannabis.  The ruling is Albuquerque Public Schools v. Sledge, Civ. No. 18-1029 KK/LF, Civ. No. 18-1041 KK/LF (D. Ariz. Aug. eight, 2019). (E mail me if you’d like a copy of the ruling.) Briefly, Concept tends to make accessible a “free and proper public education” (or FAPE) to eligible kids with disabilities. Concept calls for that schools present specific education solutions as outlined in a student’s Individualized Education System (“IEP”). The choice addresses various problems arising below the Concept, but due to the fact this is a cannabis weblog and due to the fact we are not education lawyers, this post focuses on the cannabis connected problems.

Parents seek to have their daughter treated with cannabis oil for seizures that happen at college

P.S.G. (“Student”) was born in 2013. She has Dravet Syndrome and as a outcome has had life-threatening seizures due to the fact infancy. Her medical doctors have prescribed legal drugs that have not generally worked and have brought on significant side effects which includes inconsolable screaming and respiratory depression. Student visited the emergency space regularly when these have been the only health-related therapies she took. In 2016, the New Mexico Division of Well being (“NMDOH”) gave Student’s mother (“Mother”) authorization to treat her daughter with cannabis pursuant to New Mexico’s Lynn and Erin Compassionate Use Act (“CUA”), whose goal is to permit the use of health-related cannabis in some situations.

Parents identified the administration of CBD 3 instances each day and cannabis oil at the onset of a seizure considerably lowered the frequency and duration of Student’s seizures without having any significant side effects.

In 2016, the Albuquerque Public Schools (“APS”) informed Mother that Student could not obtain cannabis oil on college grounds. Mother then requested permission from APS for “homebound solutions.” The APS held a meeting to create an IEP which proposed Student attend a specific education preschool for 1 hour a day. Student started attending preschool accompanied by Mother, who sat in the classroom each day so she could take away Student from college to administer cannabis oil in the occasion of a seizure. This continued till Student reached kindergarten age.

In 2018, the APS held a further meeting to create Student’s IEP for the 2018-19 college year – her kindergarten year. Mother wanted Student to obtain a public education and did not want to homeschool Student. APS proposed that Student attend complete-day kindergarten at a neighborhood college with an 1-on-1 educational assistant. Mother proposed an abbreviated schedule simply because she was unable to accompany her daughter to college all day each day and was unwilling to send her daughter to college without having the implies for her to obtain cannabis oil as a rescue medication.  APS rejected Mother’s proposal.

Parents then submitted a request for an Concept hearing. Parents proposed that their daughter attend kindergarten complete-time and obtain cannabis as necessary from educated college personnel. Soon after getting proof more than the course of 3 days, the hearing officer ruled that “[g]iven the child’s have to have for medication that the college can’t legally administer,” Student’s least restrictive atmosphere was “the homebound setting with socialization possibilities.” The hearing officer described this educational program as “a hybrid, homebound kindergarten placement” exactly where Mother may possibly attend college at her selection with the college nurse administering Epidiolex.

The hearing officer also identified that APS failed to present Student with the solutions necessary by Concept. APS appealed the ruling to the federal district court and argued the hearing officer erred working out jurisdiction more than problems connected to health-related cannabis and in concluding that Parents met their burden of proving that Student requirements cannabis to treat her seizure disorder. APS also alleged that “the Concept does not need a college district to accommodate the use of an illegal substance to present a FAPE.”

The federal court guidelines that the Concept does not need the Arizona Public Schools to administer or accommodate the administration of cannabis to satisfy its obligation to present students with a free of charge and public education

The court started its evaluation by explaining that with 1 exception, the possession, use, and distribution of cannabis for any explanation is criminalized below federal law. The court additional noted there are no federal exemptions for health-related use. This meant that applying federal preemption principles, the CUA ought to give way to federal law. (Exactly where state and federal law conflict, federal law wins.)

The court then addressed Parents’ claim that their daughter may possibly obtain cannabis “legally” below the CUA.  1st, stated the Court, the CUA does not make the possession, distribution or use of cannabis lawful but merely extends certified immunity to certified sufferers and their caregivers from state prosecution. This is unique from producing cannabis “legal,” and reading the CUA to do so would conflict with federal law (and federal law prevails).  The court also noted that the CUA did not extend its waiver to college employees who administer cannabis.

Subsequent the court ruled that the Concept can’t be interpreted to need APS to “accommodate” a federal crime to satisfy its obligations to present student with a FAPE.  In so ruling, the court relied on circumstances holding that the Americans with Disabilities Act does not need the accommodation of health-related cannabis use. The court then reasoned that cannabis could not be reasonably deemed a “related service” below the Concept.

This ruling leaves the parents of a 5-year old girl with undesirable possibilities: send her to kindergarten and hope she does not have a seizure due to the fact they can’t send her to college with what they know prevents seizures (cannabis oil), or homeschool her and present her “socialization possibilities.”

In this author’s view, this choice is a sound reading of federal law and establishes the have to have for reforming marijuana laws at the federal level. The media is abuzz with articles about the so-referred to as “vaping crisis,” but all also generally ignore critical stories like this in the ongoing conversation about marijuana reform.


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