Medical use of marijuana has been gaining increasing acceptance at both state and federal level. For instance, the Federal Drug Enforcement Agency (DEA) has proposed moving marijuana from Schedule I to Schedule III of the Controlled Substance Schedules, thereby classifying it as having moderate to low risk of dependency and recognizing its potential medical and therapeutic benefits. California has also legalized access to marijuana for adults. For persons under 21 years of age, however, access to marijuana is still strictly regulated and limited to medical purposes. According to a decision by the Office of Administrative Hearings, (OAH), if a child’s need for medical marijuana or a derivative meets the requirements of California’s Compassionate Use Act, they should be permitted to access it on the school campus and on the school bus.[1] The case involved a five year-old child with Dravet syndrome who needed tetrahydrocannabinol (THC) oil as an emergency seizure medication. The district offered her an IEP for home instruction claiming that she could not attend school because federal and state law prohibited possession and use of the substance at a school site or on a school bus. The ALJ rejected the district’s argument stating the LRE mandate entitled the child to attend school alongside her peers. The ALJ also found that the district was mistaken in its reading of the applicable laws.
The decision explained that California’s Compassionate Use Act expressly provided an exemption under specific conditions. A child is eligible for the exemption if they:
- Have a serious illness;
- A physician has determined that the use of marijuana would benefit the child’s health in the treatment of their illness; and
- The physician has recommended the use for this purpose.[2]
The scope of illnesses covered under the Compassionate Use Act is described broadly as “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”[3] The statute then specifically exempts the patient’s use of medical marijuana and the possession of marijuana by them and their primary caregiver from any criminal prosecution where it is prescribed for medical purposes of the patient on a written or oral recommendation or approval of a physician.[4] A primary caregiver is defined as “the individual designated by the person who has consistently assumed responsibility for the housing, health, or safety of that person.”[5]
The ALJ concluded that the child’s need for THC oil met all legal conditions and she and her mother, who was her primary caregiver, were protected under the Compassionate Use Act. Moreover, a nurse who would administer the oil under prescribed conditions, was equally covered as she would be acting as the agent of the child’s mother.
The ALJ acknowledged that use and possession of marijuana under federal law was still classified as a Schedule I item under the US Controlled Substance Act (CSA). However, he laid out a series of statements and actions by the Department of Justice (DOJ), the President and Congress all showing a clear intent not to initiate a legal action or prosecution where the use is for medical purposes.