If a New York public school student participates in the state’s medical marijuana program, can the school nurse or other designated school employee store and dispense the student’s medical marijuana for use on school grounds?

Although the state’s Compassionate Care Act does not address the use of medical marijuana in school directly, implementing regulations by the state Department of Health (DOH) specify that a designated caregiver in the state’s medical marijuana program may be “a private or public school.”

The federal government, however, does not recognize the lawful use of medical marijuana, and schools that participate in the federal free and reduced-price meal program are required to be “drug-free zones.” This puts school districts in a legal no-man’s land (see sidebar, below).

Although they have never actually done so, federal law enforcement officials could choose to prosecute school officials who possess or distribute medical marijuana. Or the U.S. Department of Education could find a violation that would jeopardize federal funding.

In order to certify patients to receive medical marijuana in New York State, a health care practitioner must complete a DOH-approved online course and register with DOH. The law and regulations state that registered practitioners “certify” individuals to use medical marijuana, rather than prescribe it. The federal Controlled Substances Act lists cannabis as a Schedule I controlled substance with no accepted medical uses and, therefore, physicians cannot legally prescribe it to patients.

To be eligible to use medical marijuana, an individual must be diagnosed with a specific severe, debilitating or life-threatening condition (e.g., cancer, Parkinson’s disease, multiple sclerosis, epilepsy or chronic pain) accompanied by an associated or complicating condition (e.g., severe nausea, severe or chronic pain or seizures).

Once certified as having such a medical condition, a patient must register with the DOH before purchasing medical marijuana from a registered dispensary. State law authorizes a patient’s designated caregivers to purchase, store and/or administer medical marijuana to the patient.

Approved forms of medical marijuana in New York include oral and sublingual liquids, oil for vaporization or administration via inhaler, oral spray, powder, tablets and capsules. The state also authorizes the use of topicals such as ointments, lotions and patches; solid and semi-solid products, including chewable and effervescent tablets and lozenges; and certain non-smokable forms of ground plant material.

The state law permitting use of medical marijuana does not permit smoking medical marijuana or the use of edibles (food products infused with marijuana) and prohibits vaporization of medical marijuana products within 100 feet of the entrances, exits or outdoor areas of a public or private elementary or secondary school (unless the individual is located within the real property boundary lines of residential property).

New York’s medical marijuana law also provides that certifi ed patients, designated caregivers and practitioners will not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege as a result of the certified medical use or manufacture of marijuana, or for any other action permitted by the law.

Nevertheless, public school officials have raised questions about how state authorities will view school actions involving storage and administration of medical marijuana pursuant to the Compassionate Care Act. In January 2019, in response to a request from NYSSBA, the State Education Department’s Office of Counsel wrote that it is SED’s position that any activities related to medical marijuana pursuant to state law, including becoming a designated caregiver, is a local decision. SED said it will not discipline licensed practitioners or penalize or deny any right or privilege to designated caregivers, which includes a private or public school, solely for the certified medical use of marijuana or for any other action or conduct in furtherance of the state’s medical marijuana law.

If a student requests to use medical marijuana during the school day consistent with the recommendation of the student’s registered health care provider, the situation almost certainly will involve chronic pain or another serious medical condition. While the human dimensions invariably will inspire sympathy, the tension between federal and state law puts school districts in an awkward position. This makes it important to consult with legal counsel about such requests. Also, districts may wish to consult with counsel and NYSSBA’s Policy Services Department (or other policy service provider) as to whether a board policy would be beneficial.

If a district decides to grant an individual’s request to use medical marijuana on school grounds, the district should consult with the district physician(s), school nurse(s) and legal counsel to develop internal procedures that fully comply with the state’s medical marijuana program and serve to protect the best interests of students and staff.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Robert H. Cohen and Lauren Schnitzer of Lamb & Barnosky, LLP