Legislature Stops Local Agencies from Limiting the Presentation of Childhood Sexual Abuse Claims

July 2018
Number 33

In response to a recent state court case, the California Legislature passed Senate Bill (SB) 1053 to explicitly prohibit local agencies from adopting local claim procedures that limit the presentation of childhood sexual abuse claims. The law, which was signed by Governor Jerry Brown on July 23, goes into effect January 1, 2019.

Background

Code of Civil Procedure section 340.1 allows a lawsuit for childhood sexual abuse to be filed within the later of eight years of the date the plaintiff turns 18, or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury was caused by the sexual abuse. Claims for childhood sexual abuse are expressly excluded from the six month or one year claim presentation requirements under the California Government Claims Act (Act). The Act, however, allows local agencies to establish local claim procedures that also limit the time for presentation of claims that are otherwise excluded from the Act’s presentation requirements.

In Big Oak Flat-Groveland Unified School District v. Superior Court, the Fifth District Court of Appeal ruled that local claim procedures apply to childhood sexual abuse claims. (See 2018 Client News Brief No. 15.) As a result, local agencies could significantly shorten the time provided by Code of Civil Procedure section 340.1 for bringing childhood sexual abuse lawsuits against public agencies. SB 1053 nullifies this court decision by amending Government Code section 935 to state expressly that local claim procedures do not apply to childhood sexual abuse claims made under Government Code section 905, subdivision (m).

Takeaways

The California Supreme Court has granted review of theBig Oak Flat-Groveland decision, and the results of the Supreme Court’s review will likely impact sexual abuse claims accruing prior to the effective date of SB 1053. Pending the outcome of the Supreme Court’s review, the law is unsettled as to the application of local claim procedures to childhood sexual abuse claims arising before January 1, 2019. Therefore, local agencies should consult legal counsel when evaluating such claims.

A related pending bill, Assembly Bill (AB) 3120, may amend Code of Civil Procedure section 340.1 to extend the statute of limitations for claims of childhood sexual assault to the later of 22 years after the date the plaintiff turns 18, or within five years after the date the plaintiff discovers or reasonably should have discovered that psychological injury was caused by the sexual abuse.

If you have any questions regarding SB 1053, the Big Oak Flat-Groveland Unified School District opinion, the Government Claims Act, or the adoption of local claim presentation requirements, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Trevin E. Sims

Partner

Kate S. Holding

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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FDA Approves Marijuana-Based Drug for Pediatric Epilepsy

July 2018
Number 32

Schools may soon be fielding requests to administer Epidiolex, a drug containing cannabidiol (CBD), a chemical component of marijuana that does not create a “high,” to students.

On June 25, 2018, the U.S. Food and Drug Administration (FDA) approved Epidiolex to treat two types of pediatric epilepsy. The approval of Epidiolex will pave the way for school districts, for the first time, to administer a medicine derived from marijuana, provided that the Drug Enforcement Administration (DEA) reclassifies it, which is expected to occur by the end of September 2018, and other Education Code requirements are met.

What is Epidiolex?

Epidiolex is a drug manufactured by GW Pharmaceuticals, a British company, which contains CBD, but not tetrahydrocannabidiol, or THC. CBD is one of several naturally-occurring compounds in the marijuana plant called cannabinoids. CBD does not cause hallucinogenic or psychoactive effects when ingested. Put simply, CBD cannot get a person high. THC, on the other hand, is a different cannabinoid in marijuana that does cause euphoric or hallucinogenic effects, making a person high.

The FDA approved Epidiolex specifically to treat Dravet Syndrome and Lennox-Gastaut Syndrome, two types of epilepsy that begin during early childhood. In published scientific studies, Epidiolex reduced the frequency of seizures in individuals with one of the two types of epilepsy as compared to a placebo. Epidiolex is the first drug ever approved to treat Dravet Syndrome.

The FDA’s approval of Epidiolex is complicated by the fact that CBD, as a component of marijuana, remains a Schedule I substance under the federal Controlled Substances Act (CSA). (21 U.S.C. § 801 et seq.) Because of this, Epidiolex, while approved by the FDA, cannot yet be “prescribed” by a physician. In its press release regarding the approval of Epidiolex, the FDA indicated that it “provides recommendations to the Drug Enforcement Administration (DEA) regarding controls under the CSA, [but] [t]he DEA is required to make a scheduling determination.” The CSA defines Schedule I substances as those with no currently accepted medical use and a high potential for abuse, and only allows doctors to prescribe Schedule II through Schedule V drugs. Barbara Carreno, a public affairs representative for the DEA, recently confirmed that the DEA will act on re-classifying Epidiolex and/or CBD within 90 days.

What does the FDA approval of Epidiolex mean for school districts?

The FDA’s approval of Epidiolex reflects a shift toward public acceptance of marijuana-based medications for children with certain conditions. Once the DEA reclassifies Epidiolex (or CBD) which is expected to occur by the end of September 2018, school districts may be able to have school nurses and/or staff administer it to students at school, provided that the school district’s applicable board policies regulations and Education Code section 49423-the provision that allows for medication to be administered at school-are met.

Senate Bill 1127

Separately, and currently pending before the California Legislature is Senate Bill (SB) 1127, which would permit California school boards to adopt a policy allowing a parent/guardian of a child with a valid medical marijuana “recommendation” from a doctor to administer medical marijuana to the child at school. While medical marijuana cannot be “prescribed” due to its Schedule I status, under California’s Compassionate Use Act doctors can recommend it. Notably, SB 1127 allows for the administration of medical marijuana, which may contain THC (as opposed to just CBD) depending on the form administered. Additionally, as drafted, SB 1127 does not account for the need to harmonize the permitted use of medical marijuana by students at school and those provisions of Education Code section 48900 et seq., which permit districts to discipline students for use, possession, or being under the influence of controlled substances or other intoxicants at school.

A vote on whether SB 1127 will be passed by the legislature and sent to the governor for approval is expected by the end of August 2018.

What about student discipline?

Education Code sections 48900 and 48915 are clear that a student may be subject to student discipline for possession, use, or being the under influence of a controlled substance or other intoxicant at school or at school-related activities. With potential changes afoot following the approval of Epidiolex by the FDA, and with SB 1127 pending, further legislative action may be necessary to provide clarity for districts on the interaction between long-standing student discipline laws and lawful medical use of marijuana-derived medications by students.

Given the constant changes in this area of the law and the complicated nuances of existing law, Lozano Smith recommends any school district assessing a request by a parent to provide his or her child with medical marijuana, or Epidiolex should it be made publically available, to consult legal counsel.

Lozano Smith will keep clients updated regarding the status of SB 1127 and the commercial availability of Epidiolex. We encourage you to listen to the webinar Getting Blunt: An Update on Marijuana in Schools, presented by Aimee Perry and Alyssa Bivins, which discusses the issues raised in this article in greater detail. Look out for the next Getting Blunt webinar in late August or early September to remain up to date in this rapidly evolving area of the law.

If you have any questions regarding Epidiolex, SB 1127, or medication administration in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Aimee Perry

Senior Counsel

Alyssa R. Bivins

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Lawmakers Extend Limits on Disruption and Defiance Discipline, Expand Use of Uniform Complaint Procedures

July 2018
Number 31

State lawmakers have indefinitely extended previously approved limits on disciplining students for defiance and disruption and have expanded the list of issues that may be addressed through the Uniform Complaint Procedures (UCP).

The changes were included in a budget trailer bill, Assembly Bill (AB) 1808, and became effective when Governor Jerry Brown signed the bill on June 27.

Extension of Limits on Student Discipline for Disruption and Willful Defiance

AB 1808 eliminated the July 1, 2018 sunset date on limitations for disciplining students under Education Code section 48900, subdivision (k), for disruption and willful defiance. AB 420, which lawmakers approved in 2014, eliminated school districts’ ability to suspend students in kindergarten through grade 3 for disruption and willful defiance. (See 2014 Client News Brief No. 72 .) AB 420 also prohibited school districts from recommending expulsion based upon disruption or willful defiance for any student, regardless of grade level. These limits were set to sunset, or automatically be repealed, on July 1, 2018. AB 1808, however, has indefinitely extended the limitations on discipline under Education Code section 48900, subdivision (k).

Accordingly, districts should continue to implement existing law and procedures regarding the restrictions on student discipline for disruption and willful defiance.

New Issues Covered by Uniform Complaint Procedures

AB 1808 also added Education Code sections 8235.5 and 33315, subdivision (a)(1)(O), which now require districts that operate California state preschool programs to process complaints regarding preschool health and safety under those districts’ UCPs. Specifically, complaints regarding deficiencies related to preschool health and safety issues for state preschool programs are now subject to the UCP. Education Code section 8235.5 requires a notice to be posted in each California state preschool program classroom notifying parents, guardians, pupils, and teachers of the following in order to identify appropriate subjects of a complaint:

  • The health and safety requirements required by title 5 of the California Code of Regulations which apply to California state preschool programs, such as “sanitary, neat, and clean condition of the school premises and freedom of the premises from conditions that would create a fire or life hazard” (Cal. Code Regs., Tit. 5, § 630) ;and
  • The location where someone can obtain a form to file a complaint. Providing a downloadable form on the district website is sufficient to meet this requirement.

Additionally, as with other grounds for filing a complaint under the UCP, Education Code section 33315, subdivision (a)(1)(O) requires districts to include information in their annual notice to parents regarding their right to file a complaint under the UCP for deficiencies in preschool health and safety requirements.

Given that the provisions of AB 1808 are already effective, districts that operate state preschool programs must take steps to update their board policies and administrative regulations regarding the UCP. If feasible, districts should also seek to ensure their annual notice to parents is amended to include these additional grounds for filing complaints under the UCP.

If you have any questions regarding AB 1808 or any other matters related to student discipline or the UCP, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Aimee Perry

Senior Counsel

Michelle N. Sinks

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Assembly Bill 6: A Cure for AB 195, But Too Late?

July 2018
Number 30

As previously reported, effective January 1, 2018, Assembly Bill (AB) 195 requires summary statements for all local ballot measures that impose or raise a tax to include the amount of money the tax will raise annually and the rate and duration of the tax to be levied. (See 2017 Client News Brief No. 82.)

In addition to eating into the 75-word limit for summary statements, the new law poses compliance challenges specific to general obligation bonds, which are subject to market forces that can make both the rate and duration of the resulting tax impossible to predict.

In response to criticism of AB 195, two proposed remedies have been introduced: Senate Bill (SB) 863, and now AB 6. SB 863 would suspend AB 195 requirements for bond measures for two years, but appears to have stalled.

The newcomer, AB 6, would require that, instead of the additional information required by AB 195, bond measures include estimates in the summary statement of (1) the best estimate from official sources of the average annual tax rate that would be required to be levied to fund that bond issue over the entire duration of the bond debt service, based on assessed valuations available at the time of the election or a projection based on experience within the same jurisdiction or other demonstrable factors; and (2) the final fiscal year in which the tax is anticipated to be collected.

The new requirements of AB 6 mirror information already required to be provided to voters in the tax rate statement by section 9401, subdivision (a)(1) of the Elections Code. AB 6, an urgency statute, would take effect immediately. However, the Legislature has adjourned for summer recess and will not convene again until August 6, which is four days before the last day some public agencies may order a general obligation bond measure election, including school districts. The potential for a last-minute or late action by the Legislature is causing uncertainty for county officials, who may have little to no time to prepare conforming changes to ballots for November bond measures already ordered by public agencies. Public agencies will need to work closely with their bond counsel and consultants to address the issues raised by AB 195, AB 6, and any other bill which may affect bond measures headed for the November ballot.

As bond counsel on more than $1 billion in public agency bond issues, Lozano Smith has expertise in public finance matters. Lozano Smith provides bond and special financing counsel services and advice to California public agencies. Lozano Smith is currently conducting bond workshops across the state, covering topics that include:

  • Elections: Timelines and Requirements
  • Bonds: Types, Validity and Tax Treatment
  • Roles and Responsibilities: Committees, Consultants and Counsel
  • Disclosure and Record-Keeping: Regulations and Legal Considerations
  • Statewide Bond: Matching and Impact

If you have any questions regarding the applicability of AB 195 or AB 6 to your measures, compliance with laws, or about navigating a future bond campaign, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Jennifer Grant

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.