Authored By: William F. McDevitt, Esq.
Public school teachers wear many hats. Not only are they expected to teach, but they often must act as counselors, surrogate parents, janitors, dispute resolution specialists and much more.
Increasingly, teachers are expected to take responsibility for the health of their students as well. Specifically, in schools that can no longer afford full-time or even part-time nurses, it falls to teachers − or administrative staff − to ensure that a student receives prescribed medication.
What happens when that medication is cannabis?
Section 506 of Pennsylvania’s Medical Marijuana Law (MML) requires all patients under the age of 18 to have a “caregiver.” That “caregiver” must be the parent of the minor, an individual designated by the parent or an appropriate person designated by the Commonwealth. The MML appears to limit any single patient to a single caregiver; arguably, if a parent is serving as caregiver, no other person can be designated to provide the child with prescribed cannabis. Thus, asking a teacher to serve as that single caregiver to deliver cannabis would limit the child’s access to medication on weekends, holidays, before school or after school.
All of this sidesteps the question of whether children will have access to prescribed cannabis while attending school. Section 2104 of the MML required the Pennsylvania Department of Education (DOE) to promulgate regulations by October 16, 2017, regarding the possession of medical marijuana by a student or a teacher on the grounds of a preschool, primary school or secondary school. As of March 8, 2018, a search of DOE’s website does not disclose any such regulations. In fact, the only link generally discussing cannabis, the “Marijuana Talk Kit” (which promises to give parents tools to engage their children in an “ongoing discussion about the risks of drug and alcohol abuse”), leads to a non-functioning page of the “Partnership for Drug-Free Kids.”
The DOE’s failure to promulgate regulations cannot be dismissed as mere bureaucratic oversight. Pennsylvania dispensaries first began distributing medical marijuana to patients in February 2018. In immediate response to high-prices and product scarcity, the Pennsylvania Department of Health (DOH) held hearings and indicated that it may be amendable to making leaf and flower cannabis available in order to reduce costs and increase patient access. This change in policy would require a change in the MML, which prohibits distribution of leaf or flower forms of marijuana. In addition, this change may be premature − only 1 of the 10 approved cannabis grower/processors has delivered product to market. While prices are expected to drop and availability rise as other grower/processors start shipping to dispensaries, government hearings and statutory/regulatory changes have been proposed ahead of the curve.
The DOE has failed its statutory mandate to provide guidance to students (and school employees) who are physician-certified and DOH-approved to receive medicinal cannabis. As the national conversation turns to giving teachers additional responsibility to maintain school security, Pennsylvania certainly should provide direction on maintaining student health.
About the Author
William F. McDevitt is a partner in the Philadelphia office of national law firm Wilson Elser, where he is a member of the firm’s Cannabis Law practice. He can be reached at firstname.lastname@example.org.