Board of Registered Nursing Issues Declaratory Decision with Precedential Effect on Administration of Medicinal Cannabis to Students

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By Hamdy M. Masri

At its February 16, 2022 meeting, the Board of Registered Nursing (BRN) unanimously voted to adopt a declaratory decision with precedential effect pursuant to section 11425.60 of the Government Code that “a registered nurse does not commit misconduct subject to disciplinary action when the nurse administers medicinal cannabis to a qualified patient student on a school campus pursuant to a physician’s care plan.”

Section 11425.60 provides that a declaratory decision with a precedential effect is a unique administrative power “that contains a significant legal or policy determination of general application that is likely to recur.” It is “not rulemaking” and “not subject to judicial review” and is therefore exempt from traditional rulemaking and adjudicatory procedures.

As set forth in the Board’s agenda item, the law firm of Atkinson, Andelson, Loya, Ruud & Romo first presented this question of policy to the Board on September 17, 2021, on behalf of their client Nevada Joint Union High School District.

The applicant is a public school district that employs registered nurses and presented the question to the Board as a matter of the nursing scope of practice. A high school student enrolled in the Applicant District has a diagnosed severe seizure condition. The student’s physician recommended the use of cannabis as maintenance and rescue medication. The physician’s care plan requires the school’s nurse to regularly administer a CBD/THC tincture and a THC intranasal spray as needed. The student is a qualified patient under section 11362.5, of the Health and Safety Code, entitled the Compassionate Use Act of 1996, which exempts qualified patients and their primary caregivers from criminal statutes prohibiting the possession and administration of cannabis. According to the petition, there is no specific law or regulation arising under the Nursing Practice Act that prohibits an RN from administering medicinal cannabis pursuant to a physician’s treatment plan, regardless of the location of the administration.

At the Board’s November 30, 2021 meeting (Agenda Item 6.0), it received the petitioner’s formal request pursuant to section 1264, Title 1 of the CCR. The Nursing Practice Committee chair, Elizabeth Woods, presented a memo to the Board, containing the request, as well as the Board’s Nursing Education Consultants’ informal response to the firm. After discussion, the Board made an initial determination to proceed pursuant to Government Code section 11465.10 et seq. On December 30, 2021, the Board sent a Notice of Declaratory Decision Proceeding to all interested parties and began an open comment period that ended on January 24, 2022.

As defined by regulation, a declaratory decision is a written opinion containing a statement of undisputed fact and a determination of issues relating to the application of a state agency rule, regulation, order, statute, or administrative decision as it applies to a situation in which the agency has primary jurisdiction. California Code of Regulations, title 1, section 1260. These decisions are used by agencies to provide guidance on the application of statute or regulation to a specific question presented and have precedential power. If a similar question arises in the future, a licensee may look to the Board’s decision as a precedent to rely upon.

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