Brooke Adams is a five-year-old girl diagnosed with Dravet Syndrome, a rare and severe form of epilepsy. Brooke currently uses medicinal cannabis-derived CBD oil to significantly reduce the frequency of seizures and medicinal cannabis-derived THC oil as an emergency medication to quickly stop seizures once they start. Brooke obtains both oils pursuant to a valid recommendation from a licensed physician. The Rincon Valley Union School District refused to place Brooke on a District campus because it alleged that her medication is not permitted on a school campus or school bus under both state and federal law; instead, in April 2018, the District offered to Brooke an individualized educational program (“IEP”) that included only one (1) hour of home-based schooling each day.
Brooke Adams suffers from a rare form of epilepsy and takes cannabis-based medication — but state and federal laws bans those types of drugs from school campuses. https://t.co/TtGcgGVZfV
— ABC7 News (@abc7newsbayarea) August 16, 2018
Due Process Hearings
The California Office of Administrative Hearings’ Special Education Division adjudicates disagreements that arise between parents of children with special needs and school districts through Due Process Hearings. As the school year began in August, Brooke Adams’ family was anxiously awaiting a final decision after one such hearing. Rogoway Law Group was honored to work pro bono on this case, which pivoted on the issue of a child who needs to take cannabis oil as a life-saving rescue medication while on school grounds, but whose school district would not permit the cannabis oil on their campuses.
Free Appropriate Public Education
Under the Individuals with Disabilities Education Act (“IDEA”), schools are required to ensure that all children with disabilities have access to a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet the child’s unique needs. A FAPE means appropriate special education and related services that are available to an eligible child at no charge to the parent or guardian, meet state educational standards, and conform to the child’s IEP. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17; Cal. Code Regs., tit. 5, § 3001, subd. (p).) Moreover, the student’s IEP must be reasonably calculated to enable the student to make progress appropriate in light of his circumstances. (Endrew F., supra, 137 S.Ct. at p. 1001.)Consequently, at issue in this case was whether the District failed to provide Brooke with a free appropriate public education in the least restrictive environment as is required by the Individuals with Disabilities Education Act. (20 U.S.C. § 1400 et seq.).
On Friday, September 21, 2018, Administrative Law Judge Charles Marson released his ruling in which he determined that indeed, the District denied Brooke a FAPE with its offer of one hour of home-based schooling per day. This ruling means that the District is required to permit Brooke to attend a public school with her medicinal cannabis oil.
The judge ruled that Rincon Valley Union School District had denied 5-year-old Brooke Adams a “free and appropriate public education” in the “least restrictive setting” — which federal special education law requires.https://t.co/6YbOQZfKii
— KQED News (@KQEDnews) September 23, 2018
Judge Marson established that the District’s “IEP placement offer effectively barring her from its campus and school bus was based not on her educational needs but on the concern that her presence, with her medication, might violate state and federal law.” Judge Marson went on to state that for the past two years, the possession, administration and ingestion of THC oil for Student’s seizures strictly complied with California’s medical marijuana laws and were lawful under state law.
In a summary of his decision, Judge Marson concluded that “The offered IEP was not reasonably calculated to allow Student to benefit from it, because its exclusion of Student from the campus and school bus was based on a misunderstanding of state law, and on the remote possibility that possessing THC oil might violate an unenforced and unenforceable federal misdemeanor, prohibiting marijuana possession. Since Student may successfully attend a public school campus and be transported to and from it, while maintaining access to her emergency medication, her least restrictive environment is on a public school campus, not at home. Student therefore proved that Rincon Valley’s April 27, 2018 offer of home placement did not offer her a FAPE.”