advice. 1 STUDENTS WITH DISABILITIES: SECTION 504 AND ...pre.tristate.pitt.edu/wp...State-Medical-Marijuana... · MEDICAL MARIJUANA ACT •On April 17, 2016 Pennsylvania passed the

STUDENTS WITH DISABILITIES: SECTION 504 AND MEDICAL

MARIJUANATRI-STATE

DECEMBER 6, 2018

© WBK LLC 2018 This presentation is informational only and does not constitute legal advice.

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WHAT WE WILL COVER

• Medical Marijuana Act

• What is Medical Marijuana

• Who is Eligible to Posses Medical Marijuana

• PDE Guidance

• IDEA and 504 implications

• Practical Tips

• 504 Updates


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MEDICAL MARIJUANA ACT

• On April 17, 2016 Pennsylvania passed the Medical Marijuana Act, 35 P.S. 10231.101 et seq. which allows for the use of medical marijuana within the state

• The law specifically states that use or possession of medical marijuana is lawful in Pennsylvania

• However, it is still unlawful to smoke medical marijuana, to incorporate into an edible form, to grow medical marijuana if you have not received a permit from the State


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MEDICAL MARIJUANA ACT

• Section 2104 of the Act placed a requirement on the Department of Education to create and disperse regulations related to the use of medical marijuana within 18 months (October of 2017) of the date of the Act.

• The regulations were intended to address the following issues:• Possession and use of medical marijuana by a student on the grounds of a preschool, primary

school and a secondary school;

• Possession and use of medical marijuana by an employee of a preschool primary school and a secondary school on the grounds of such school.

• This has still not occurred


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WHAT IS MEDICAL MARIJUANA

• The law allows medical marijuana to be produced in a pill, oil, gel, cream, ointments, vapor, nebulizer, liquid, or tincture

• Dry leaf or plant forms are not permitted in most circumstances


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WHO CAN POSSESS MEDICAL MARIJUANA

• Patient or a Caregiver • In order to qualify as a patient, you must (1) have a serious medical

condition; (2) meet the requirements for certification under the Act; and (3) be a resident of Pennsylvania.

• Patients under 18 must have a caregiver who possesses the medical marijuana.

• A Caregiver must be a parent or legal guardian of the patient; an individual designated by a parent or legal guardian of the patient; or an appropriate individual approved upon a sufficient showing that no parent or legal guardian is appropriate or available.

• Either the patient or the caregiver must obtain an “identification card”


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WHO QUALIFIES FOR MEDICAL MARIJUANA?

• (1) Cancer• (2) Positive status for human immunodeficiency

virus or acquired immune deficiency syndrome • (3) Amyotrophic lateral sclerosis• (4) Parkinson's disease• (5) Multiple sclerosis• (6) Damage to the nervous tissue of the spinal

cord with objective neurological indication of intractable spasticity

• (7) Epilepsy• (8) Inflammatory bowel disease• (9) Neuropathies

• 10) Huntington's disease• (11) Crohn's disease• (12) Post-traumatic stress disorder• (13) Intractable seizures• (14) Glaucoma• (15) Sickle cell anemia• (16) Severe chronic or intractable pain of

neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective

• (17) Autism


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PDE GUIDANCE

• There are still no regulations in place!

• However, PDE and the Pennsylvania Department of Health have issued guidance for schools and school districts

• A parent or legal guardian may administer medical marijuana to their child/student on school premises provided that the parent, legal guardian or caregiver does the following: • Provide the school principal with a copy of the Safe Harbor Letter;• Notify the principal in advance of each instance a parent or caregiver will be

administering the medical marijuana to the student; • The principal shall provide notice to the school nurse in each instance where

medical marijuana is going to be administered.


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DEPARTMENT OF HEALTH GUIDANCE

• A parent, legal guardian, or caregiver shall comply with all school visitor rules while on the premises

• A parent, legal guardian, or caregiver shall bring to the school and administer the medical marijuana without creating a distraction and shall remove any excess medical marijuana from the premises

• The school shall provide a secure and private location for the parent, legal guardian, caregiver to administer the medical marijuana

• Students shall not be permitted to possess any form of medical marijuana at any time on school property or during any school sponsored events


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SAFE HARBOR LETTER

• Form to be filled out by both the parent/legal guardian/ caregiver/ spouse as well as the Pennsylvania Licensed Physician who is prescribing the Medical Marijuana and then finalized by the Department of Health for approval

• Information should be given to include the serious medical condition, the individuals name and other relevant information, the caregiver’s name (if applicable) as well as the physician’s professional information


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SAFE HARBOR LETTER REGULATIONS

• According to 28 Pa. Code 1131.4 – the Safe Harbor Letters expired as of May 17, 2018; however, no additional guidance has been issued by the PA. Department of Health or the PA. Department of Education


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APPLICABLE FEDERAL LAW

• Nothing in the Safe Harbor Letter, nor in the state law Medical Marijuana Act protects against federal criminal prosecution

• The U.S. Department of justice still has the authority to enforce civil and criminal federal laws relating to marijuana possession and use, regardless of state law


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DRUG-FREE SCHOOL ZONES

• 18 Pa. 6317 - A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:

• (1) subject to this section; and

• (2) for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.

• If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable.


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504 AND IDEA IMPLICATIONS

• Chapter 15 states that “school districts are required to provide students with aids and services and accommodations that are designed to meet the educational needs of protected handicapped students . . . These aids, services, and accommodations may include, but are not limited to, special transportation, modified equipment, adjustments in the student’s roster, or the administration of needed medication”

• This could also be required under the IDEA for a student who requires medication management as a part of his or her IEP


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CASELAW – EUGENE SCHOOL DISTRICT, 104 LRP 42399

• A student with an Emotional Disturbance and hearing impairment who was provided services under an IEP brought medical marijuana on school grounds. The District responded to the incident by suspending the student for nine (9) school days

• The District had a drug policy that expressly prohibited the possession of illegal drugs on school grounds

• The District communicated with the family and student to remind them that the possession of illegal drugs was prohibited

• No IEP meeting was held at this point


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EUGENE SCHOOL DISTRICT – FACTS

• A month after the first incident, the student brought medical marijuana to school again

• The District suspended the student for five (5) days following this incident and scheduled and held a manifestation determination meeting


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EUGENE SCHOOL DISTRICT – FACTS

• The District and parents concluded that the possession of drugs on school grounds was a manifestation of the student’s disability, however, due to the fact that the incident regarded the possession of drugs, the District moved forward with a 45-day interim alternative educational placement recommendation

• The parents disputed this determination and filed a complaint stating that the District could not remove the student for 45 days because the use and possession of marijuana did not constitute an “illegal drug” as it was legally prescribed to him


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EUGENE SCHOOL DISTRICT – LEGAL ANALYSIS

• What the law says: A drug violation occurs if the student "knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency." 34 CFR 300.520(a)(2)(ii); OAR 581-015-0555(1)(b).

• "Illegal drug" means "a controlled substance; but does not include a substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under [the Controlled Substances Act, 21, USC 812(c)] or under any other provision of Federal law." 34 CFR 300.520(d)(2); OAR 581-015-0555(1)(a).

• A "controlled substance" means "a drug or other substance identified under schedules I, II, III, IV, or V of the Controlled Substances Act (21 U.S.C. 518(c))." 34 CFR 300.520(d)(1).


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EUGENE SCHOOL DISTRICT – LEGAL ANALYSIS

• The Controlled Substances Act defines marijuana as a Schedule I controlled substance. 21 U.S.C. § 812(c)(c)(10). Under the Controlled Substances Act, a Schedule I controlled substance is a drug that "has no currently accepted medical use in treatment in the United States." 21 U.S.C. § 812(b)(1)(B). In other words, marijuana is one of the Schedule I controlled substances that a physician may not lawfully prescribe under federal law.

• Marijuana remains a "controlled substance" for purposes of IDEA (through reference to the Controlled Substances Act): "Unless specifically excepted or unless listed in another schedule" ... 21 U.S.C. § 812(c)(c). The Department concludes that it was reasonable for the District to treat student A's possession of marijuana as possession of a controlled substance, and as a drug violation, under these regulations, that would justify suspension and removal to an interim alternative educational setting.


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EUGENE SCHOOL DISTRICT - CONCLUSION

• The District was within its authority to remove the student for up to 45 days under the IDEA due to his possession of marijuana, not withstanding the fact that the student legally possessed medical marijuana under state law

• Take away: Remind parents and students that it is still prohibited to bring drugs to school, and the unlawful possession of medical marijuana on school grounds will still be punished under your code of conduct


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CASELAW – G.B. V. MAPLE SHARE TOWNSHIP BOARD OF EDUCATION, AGENCY DKT. 2015 22132

• Student, G.B. was a student identified under the IDEA under the disability category of multiply disabled

• As part of her disability, the student experienced frequent seizures due to epilepsy

• The student was prescribed Medical Marijuana for this condition

• Medical Marijuana is legal under New Jersey State Law under the Compassionate Use Medical Marijuana Act


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G.B. V. MAPLE SHARE TOWNSHIP BOARD OF EDUCATION – FACTS

• The family and the District met, and the parents requested that the District administer the student’s lunch time dosage of medical marijuana, per her prescribed dosage schedule

• The District denied this request, and did not include the use of Medical Marijuana into the student’s IEP

• As a result, the student was taken out of school each day at lunch time so that the medical marijuana could be administered by her parents

• After the administration of medical marijuana, the parents elected to keep the student home for the remainder of the day


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G.B. V. MAPLE SHARE TOWNSHIP BOARD OF EDUCATION – FACTS

• As a reasonable accommodation, the District proposed that the student be taken off of school grounds while the medical marijuana was being administered, and then returned to school after lunch; however, the marijuana would have to be administered 1,000 feet from school property per the State-mandated drug-free-school-zone law

• The parents disagreed with this due to concern for amount of transitions, and the student’s difficulty with transitions

• Under the New Jersey Law medical marijuana may be administered by:• Qualifying patients, primary caregivers, medical marijuana alternative treatment centers, a

qualifying patient’s physician


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G.B. V. MAPLE SHARE TOWNSHIP BOARD OF EDUCATION - CONCLUSION

• The ALJ in this matter concluded that the School District or its representatives did not meet any classification of individual permitted to administer medical marijuana and therefore could not be required to administer medical marijuana at school

• In addition, the ALJ found that the District was mandated to comply with the Drug Free School Zone Act which requires a prohibition on drugs within a 1,000 feet zone around the school

• As a result, the School District was not found to be in violation of the IDEA or Section 504 when it refused to administer medical marijuana to the student


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CAUTION!

• Chapter 15 specifically calls out the administration of needed medication as a required service:• Section 504 and its accompanying regulations protect otherwise qualified handicapped students

who have physical, mental or health impairments from discrimination because of those impairments. The law and its regulations require public educational agencies to ensure that these students have equal opportunity to participate in the school program and extracurricular activities to the maximum extent appropriate to the ability of the protected handicapped student in question. School districts are required to provide these students with the aids, services and accommodations that are designed to meet the educational needs of protected handicapped students as adequately as the needs of nonhandicapped students are met. These aids, services and accommodations may include, but are not limited to, special transportation, modified equipment, adjustments in the student’s roster or the administration of needed medication.


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DEFINING “ILLEGAL DRUG”

• Because Chapter 15 has its basis in Section 504 – we are still able to look to the federal definition of “medication”

• There are no federal medical marijuana programs

• Marijuana is still considered to be an illegal drug under federal law


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MEDICAL MARIJUANA IN 504 PLANS AND IEPS

• The use of medical marijuana should not be included as an accommodation or an SDI

• The use of medical marijuana can be added under Present Levels Section, or Parental Concerns Section, documenting the school’s knowledge of the usage

• If the use of medical marijuana is having a negative impact in the school setting, meet to revise the 504 or IEP to address this concern

• The use of medical marijuana should be a red flag to evaluate a student for a 504 plan or IEP if that student does not already have one


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MORE PRACTICAL TIPS

• When a request for medical marijuana comes in, never outright refuse the request

• Immediately contact your Solicitor or Superintendent• School nurses cannot and should not administer medical marijuana to

students• Marijuana is still illegal under Federal law, and therefore it is unlikely that a

school district will be required to administer on school grounds

• Stay tuned for guidance from PDE!


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504 UPDATES AND REMINDERSASSOCIATIONAL DISCRIMINATION AND MORE!


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SECTION 504

Section 504 of the Rehabilitation Act of 1973

“No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . .” 29 U.S.C. § 794(a).

• REGULATIONS: 34 C.F.R. Part 104

• STATE REGULATIONS: 22 Pa. Code Chapter 15


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KEY POINTS TO REMEMBER

It is the District’s responsibility to identify, evaluate and provide a 504 Plan to qualified students

Either the District or a Parent can initiate the 504 process

A positive behavior support plan can be included with a 504 Plan

Be aware of the 504 Team’s obligation to discuss and consider related services (such as transportation, OT, PT, speech, etc.)

Ensure that the 504 Plan moves with student from school to school and is revised when needed

Provide Section 504 Procedural Safeguards frequently and consistently


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DRAFTING REMINDERS

Review the Plan at least annually

Include information on who is responsible for implementing the various accommodations provided

Include a section for parent input

Include a sign-in/participant log at the beginning of the plan

Include information regarding the student’s disability/diagnosis

PROVIDE PROCEDURAL SAFEGUARDS and ensure that parents sign that they have received them!


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INVOLVING GENERAL EDUCATION TEACHERS

• In addition to ensuring that general education teachers are involved in the drafting of Section 504 Plans, it is necessary to remind general education teachers that their implementation of the Section 504 Plan is mandatory.

• In order for a general education teacher to meaningfully implement the plan, they must be aware of their duties, and aware of how to implement the accommodations

• RED FLAG: Ensure that Substitute Teachers have access to Plans

• RED FLAG: Ensure necessary support staff is aware of the student’s disability and accommodations (i.e. paraprofessionals and other staff who work with the student)


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504 COMPLIANCE IS NOT THE PARENT’S RESPONSIBILITY

• Boardman (OH) Local Schools, 115 LRP 49819 (OCR 06/12/15)

• 3rd grade student with Crohn’s disease

• School informed father that they would only evaluate student under 504 if father provided documentation of medical condition

• District failed to evaluate the student for 3 months while waiting for father to respond

• District was forced to enter into an agreement with OCR to resolve father’s claims


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504 LEGAL UPDATES: NOTABLE CASES

• A.P. IV by Porco v. Lewis Palmer Sch. Dist. No. 38 (2018)

• Smith ex rel. G.S. v. Rockwood R-VI Sch. Dist. (2017)

• Lawrence County Sch. Dist. of Lawrence County, Ark. v. McDaniel ex rel. CM (2018)


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CASE UPDATES

• A.P. IV by Porco v. Lewis Palmer Sch. Dist. No. 38 (2018) – parents filed a complaint through OCR, the complaint was resolved by OCR two years prior; Court found that this was not exhaustion of administrative remedies as required under the IDEA/Section 504, etc.

• Smith ex rel. G.S. v. Rockwood R-VI Sch. Dist. (2017) – parents sued after a student was expelled from school. Parents claimed that as a result of expulsion, the student suffered pain, loss of enjoyment of life, humiliation, and loss of reputation and argued that these claims were separate and district from IDEA claims and no redress was available at administrative level. Court disagreed


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LAWRENCE COUNTY SCH. DIST. OF LAWRENCE COUNTY, ARK. V. MCDANIEL EX REL. CM

• Case Summary: The good grades, recognition as an honor student, and commendation to the gifted and honors program of a fifth grader with ADHD and autism didn't relieve an Arkansas district of its responsibility to evaluate him for special education and related services. The court denied the district's motion for summary judgment that challenged a hearing officer's decision reported requiring the district to evaluate the student. The student had a number of social and behavioral issues that included spinning in circles, avoiding human contact, having tantrums, and pulling his hair out. His teachers reported that he blurted out answers and argued in class. The parent requested an evaluation because of her feelings that the student needed services to learn social skills.


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LAWRENCE COUNTY SCH. DIST. OF LAWRENCE COUNTY, ARK. V. MCDANIEL EX REL. CM

• The district declined to evaluate the student, noting his good grades and honors recognitions. It contended that the student's Section 504 plan was sufficient. The parent filed a due process claim, and the hearing officer ordered an evaluation. The district appealed to court to contest the administrative order, arguing that the student didn't need special education services under the IDEA. The court explained that 20 USC 1414(a)(1)(B) requires that districts evaluate all students who are identified as possibility having a disability and that the evaluation must be "full and individual." The court also explained that evaluating the student is not the same as providing special education, and it supported the evaluation order. "The hearing officer's decision does not necessarily contradict the opinions of expert witnesses who believe that [the student] does not require special education services," the court wrote. "It does not violate the express goal of the IDEA that children with disabilities be placed in the least restrictive requirement."


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WHAT THIS MEANS . . .

• Districts should be careful not to assume that a student's strong academic performance negates the need to evaluate the student for special education or related services. Under the IDEA, evaluating a student isn't the same as providing services, but once a child is identified as potentially having a disability, the district must conduct a "full and individual evaluation" to determine whether the child has a disability under 20 USC 1414(a)(1)(B). Here, a parent reported that the student's autism impaired his ability to learn important social skills, but the district mistakenly declined to evaluate the student because he achieved high grades.


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ASSOCIATIONAL DISCRIMINATION

• K.K. v. North Allegheny Sch. Dist. 117 LRP 25438 (W.D. Pa. 2017)


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K.K. V. NORTH ALLEGHENY S.D.

• Facts: District had a policy of not transporting students to after school out of District programs/day care facilities. District refused to modify this policy to provide out of district transportation to a student with a disability who required a specialized day care program that was only offered outside of the District boundaries. Court held that this was not discrimination against the child. Parent amended her complaint to allege that it was associational discrimination against her as a parent of a student with a disability.


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• Rule: Under Section 504 a parent can demonstrate associational discrimination by showing: 1) a logical and significant association with an individual with disabilities; 2) that a district knew of the association; 3) that the district discriminated against the parent because of the association; and 4) that the parent suffered direct injury as a result of the discrimination.


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• Holding: Court pointed out that students without disabilities had access to transportation for daycare programs, so the court agreed that the parent showed facts sufficient to prove that she experienced disability-based harm that parents with children without disabilities did not experience. Parent asserted, and court agreed, that facts were alleged to show that parent was excluded from full and equal access to the transportation service provided by the district as a result of the alleged discrimination which would support an associational discrimination claim under Title II and Section 504 Standards.


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THANK YOU!

Questions and Comments may be directed to:

Annemarie K. Harr, EsquireWeiss Burkardt Kramer LLC [email protected]

THIS PRESENTATION INFORMATIONAL ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. SHOULD YOU DESIRE LEGAL ADVICE ON THIS TOPIC, PLEASE CONTACT AN ATTORNEY.


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Documents

advice. 1 STUDENTS WITH DISABILITIES: SECTION 504 AND ...pre.tristate.pitt.edu/wp...State-Medical-Marijuana... · MEDICAL MARIJUANA ACT •On April 17, 2016 Pennsylvania passed the