Sunday, September 8, 2019

PED, Rio Rancho, and APS medical cannabis in schools policy neglects to allow reasonable accommodation portion of new law



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The guidance for the medical cannabis in schools law, by the Public Education Department, states that the Department of Health is not going to allow school nurses to administer medical cannabis to patients in the state’s medical cannabis program. This policy guidance from the PED is misconstruing state law and it also misconstrues Federal Policy about state medical cannabis laws.

Senate Bill 204, the medical cannabis in schools law, is written very clearly and the Public Education Department does not have the ability to change how the law was written or the intent of how the law was written. And that’s exactly what has happened.

The Governor’s Office did not give this law the proper attention as it went through the implementation process, and during this entire process the Department of Health Medical Cannabis Program did not have a Medical Director on staff to oversee any of this, nor did the PED have a Secretary in place.

The Governor is the executive for the state and as the state’s constitution says, the Governor has a duty to see that the New Mexico Constitution and the laws of the state are faithfully executed. That did not happen with new medical cannabis laws in 2019. Despite this, we keep seeing how much time has been spent on proposed Recreational Cannabis Policy going on since the end of June.

More time spent by the Governor’s Office on trying to plan for enacting a proposed recreational cannabis law for 2020 than on the duty to see that the laws of the state are faithfully executed, like the Medical Cannabis in Schools law and Senate Bill 406.

“Medical Cannabis in Schools - Guidance Regarding School Nurses In accordance with current law”
Link:https://webnew.ped.state.nm.us/wp-content/uploads/2019/08/SHSB_Guidance_School-Nurses_Medical-Cannabis_August-2019.pdf


Why did the PED decide not include relevant policy materials for the state’s school nurses in this Guidance for Schools PDF from the National School Nurses Association Guidelines for Medical Cannabis and from the The National Council of State Boards of Nursing (NCSBN) Guidelines for Medical Cannabis?

The Governor’s Office, Public Education Department, Department of Health and the State Board of Nursing were all provided those policy materials to review before this Guidance for Schools was created and posted to the PED’s website on August 29, 2019.

Why has state government allowed so much more time to be dedicated to a proposed Recreational Cannabis Law for 2020 this year, while continuing to neglect the state medical cannabis program and new laws passed in 2019?

This year the new Secretary of Health, Kathyleen Kunkle, has dedicated more of her time for meetings about recreational cannabis policy and has spent less time on the states Medical Cannabis Program and that has resulted in this incomplete policy guidance for schools. 

All this time spent on recreational cannabis policy is hurting families of medical cannabis patients - it’s causing harm to the state’s medical cannabis program...

The proposed policy being put forth by some of the schools and school districts is a policy that ignores state law and continues to discriminate against students who are medical cannabis patients by not allowing reasonable accommodation.

Schools and School Districts are exploiting one section of the law which goes against the intent of how the law was written (Subsections 1 and 2 below);
"B. A school board or the governing body of a charter school may adopt policies that:
(1) restrict the types of designated school personnel who may administer medical cannabis to qualified students;
(2) establish reasonable parameters regarding the administration and use of medical cannabis and the school settings in which administration and use are authorized; and
(3) ban student possession, use, distribution, sale or being under the influence of a cannabis product in a manner that is inconsistent with the provisions
of this subsection."

From subsection one(1) above, the PED has violated the intent of the law by providing policy guidance that says school nurses could not administer medical cannabis and the policy guidance also misconstrues federal policy about medical cannabis.

And here we see further exploitation of Subsection 1 and 2 of Section B by these schools in the Albuquerque area:
The Rio Rancho Public School District has proposed the following medical cannabis in schools policy which also violates the intent of the law by banning all school personnel from administering medical cannabis;
“3. Administration of Medical Cannabis: School personnel may not possess, store, or administer medical cannabis. However, each campus shall have a designated secure area to store medical cannabis in each school’s office, and shall designate a location for the administration of medical cannabis. Medical cannabis to be possessed, stored and administered pursuant to this policy may only take the form of a non-refrigerated capsule, extract, or concentrate that is ingested orally and that is not inhaled in particulate form as a vapor or by burning. Medical cannabis may only be possessed, stored and administered by the primary caregiver of a qualified student, in accordance with state law, district policy and this regulation.”
[From page 4 of proposed RRPS Policy 1029: https://v3.boardbook.org/Public/PublicItemDownload.aspx?ik=45075446]


The Albuquerque Public School District has proposed the following medical cannabis in schools policy which also violates the intent of the law by requiring the qualified patient’s primary caregiver(s) to be the only one(s) to administer medical cannabis when it is needed and by not requiring any school personnel to help administer medical cannabis;
“Under certain circumstances where it is necessary for a student to take medical cannabis during school hours, the district will cooperate with the certifying practitioner and the parents or legal guardian, to permit the primary caregiver to administer medical cannabis in a school building, if the following requirements are met…”
[From Page 1 of the proposed APS policy: https://v3.boardbook.org/Public/PublicItemDownload.aspx?ik=45098728]

“Albuquerque Public Schools shall not require any employee to store or administer medical cannabis. School nurses and health assistants may consult on site administration plans and shall be made aware of all qualified students with medical cannabis treatment and administration plans at a school site but shall not be required to store or administer medical cannabis.”
[From Page 4 of the proposed APS policy: https://v3.boardbook.org/Public/PublicItemDownload.aspx?ik=45098728]


The Public Education Department, Department of Health, Albuquerque Public Schools, and Rio Rancho Public Schools all have failed to establish reasonable parameters regarding the administration and use of medical cannabis and the school settings in which administration and use are authorized as clearly provided for in the medical cannabis in schools law.
[Section B of SB-204; Subsection 2 on pages 2 -3: https://www.nmlegis.gov/Sessions/19%20Regular/final/SB0204.pdf]


Whereas Section D of the SB-204 medical cannabis in schools law clearly states that;
“D. A public school, charter school or school district shall not:
(1) discipline a student who is a qualified student on the basis that the student requires medical cannabis as a reasonable accommodation necessary for the student to attend school;
(2) deny eligibility to attend school to a qualified student on the basis that the qualified student requires medical cannabis as a reasonable accommodation necessary for the student to attend school or a school-sponsored activity; or
(3) discipline a school employee who refuses to administer medical cannabis.”
[Section D of SB-204; Subsection 1-2 on pages 3-4: https://www.nmlegis.gov/Sessions/19%20Regular/final/SB0204.pdf]


The Public Education Department, Department of Health, Albuquerque Public Schools, and Rio Rancho Public Schools are all in violation of subsections 1 and 2 of the law, as the policy guidance and proposed policies are both discipling the student (and their family for that matter) and is denying eligibility to attend school by not allowing for a reasonable accommodation necessary for the student to attend school.

Reasonable accommodations are modifications or adjustments to the tasks, environment or to the way things are usually done that enable individuals with disabilities to have an equal opportunity to participate in an academic program or a job (U.S. Department of Education, 2007).

Even further, the New Mexico School Health Manual states;
“If there is not a school nurse to delegate medication administration the best practice is to have a parent/guardian administer the medication to reduce potential risk to the student and school district. This alternative is found to be impractical and may not be an option if the parent/guardian is not able, capable, or is unwilling.”
[Last paragraph on page 66 of the New Mexico School Health Manual: https://nmhealth.org/publication/view/guide/4317/]

The intent of the new Medical Cannabis in Schools law (SB-204) is to allow for that reasonable accommodation to be created. That reasonable accommodation allows these families to have a family life by being able to go to work, attend college or graduate school, and live their lives to create a better future for their families. That reasonable accommodation allows for their student to go to school and be given their medicine just like all the other students while at school.

The medical cannabis in schools law is clearly written in a way for that reasonable accommodation to be met by the PED and the Schools with rules and regulations that match the state law by allowing for school personnel to administer medical cannabis and by allowing for the storage of the students medicine at school.

The New Mexico Public Education Department has also ignored the facts with Federal laws and policy about state medical cannabis laws in the US, within the PED’s issuance of the guidance pdf provided to the schools. And that’s also where the Governor should have been performing her duty to see that the laws of the state are faithfully executed, like with this Medical Cannabis in Schools law. Senate Bill 204 is a protected state medical cannabis law as provided below, from Federal Policy.

Currently there are now 10 states and one capital city with comprehensive medical cannabis programs allowing safe access to medical cannabis at school: Oklahoma City School District and these ten states; California, New Mexico, New Jersey, Maine, Washington, Colorado, Pennsylvania, Florida, Illinois and Virginia.

No school or school district in the US has ever lost any federal funding for allowing safe access to medical cannabis at school, nor has there been any problems. No school nurse has ever gotten in any trouble...none.

Medical Cannabis in Schools Law/ School Board Policy Meetings:
Rio Rancho is having their meeting addressing medical cannabis in schools on September 9th 2019 at 5:30PM in the District Office Board Room. (https://www.rrps.net/district/school_board___policies)

Albuquerque Public Schools is having their meeting addressing medical cannabis in schools on September 11th 2019 at 4pm. The APS Board of Education Policy and Instruction Committee Meeting is going to be at the John Milne Community Board Room, Alice and Bruce King Educational Complex, 6400 Uptown Blvd. NE.



Appendix
Medical Cannabis in Schools Policy Guidelines And Training Resources For School Nurses | by Safe Access New Mexico | http://www.cannabisnewsjournal.co/2019/08/medical-cannabis-in-schools-policy.html


Federal Policy: Protection for state medical cannabis laws, as provided in the Rohrabacher–Farr amendment, Sec. 538 of the “omnibus” appropriations bill. Every year, the federal budget in the US Congress (“omnibus” appropriations bill) includes a rider that continues to bar the DOJ from enforcing the federal marijuana ban in some circumstances pertaining to states who enact their own medical cannabis laws. This rider is also known as the Rohrabacher–Farr amendment.
Here is the full text of the rider: (www.safeaccessnow.org/federal_marijuana_law)

“SEC. 538. None of the funds made available under 4 this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”


United States v. McIntosh: The federal Ninth Circuit Court of Appeals interpreted the quoted language to bar the DOJ from prosecuting individuals who manufacture, distribute, or possess marijuana in strict compliance with state medical cannabis laws.


Conant v. Walters (2002): The Ninth Circuit Court of Appeals held that the federal government could not punish, or threaten to punish, a doctor merely for telling a patient that his or her use of cannabis for medical use is proper. However, because it remains illegal for a doctor to "aid and abet" a patient to obtain cannabis or conspire with him or her to do so, the court drew the line between protected First Amendment speech and prohibited conduct as follows -- A physician may discuss the pros and cons of medical cannabis with his or her patient, and issue a written or oral recommendation to use cannabis within a bona fide doctor-patient relationship without fear of legal reprisal. There have been no such criminal or administrative proceedings against doctors to date. (https://www.safeaccessnow.org/landmark_federal_conant_v_walters)



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