Colorado Natural Medicine Advisory Board Psychedelic Update
Colorado Natural Medicine Advisory Board Psychedelic Update
The Emergency Response, Safety, and Ethics Subcommittee discussed key issues reflecting unresolved tensions within the board
Correction: A prior version described Section 24-72-204(3)(a)(I) as part of SB 290. It is a section of the Colorado Revised Statutes.
Yesterday, the Emergency Response, Safety, and Ethics Subcommittee of Colorado’s Natural Medicine Advisory Board held its monthly meeting. After starting at 1:05pm Mountain Time, the meeting continued for over two and a half hours.
I’ve been meaning to provide a general update on the Natural Medicine Advisory Board’s activities. But instead of providing an extensive overview, I’ll summarize a few discussions from yesterday’s meeting and explain how they reflect recurring themes and points of disagreement on the board. Specifically, the subcommittee held key discussions on peer support, the boundaries of psychedelic facilitator licensing, client video recording, privacy, and facilitator consumption of psychoactive substances.
William Dunn who chairs the subcommittee, and represents first responders on the board, led yesterday’s meeting. Dunn is Senior Manager of Clinical Services at Eagle County Paramedic Service.
Other subcommittee members include Bradley Connor, a clinical psychologist and Professor at Colorado State University, Alisa Hannum, a clinical psychologist in the VA Eastern Colorado Healthcare System, Joshua Goodwin, CEO of a mental health company designed for veterans and first responders, and David Lucero, Sheriff of Pueblo, Colorado.
The composition of the Emergency Response, Safety, and Ethics Subcommittee reflects the polarization of the Natural Medicine Advisory Board. For instance, this subcommittee contains no members from the Subcommittee on Indigenous and Religious Use and vice versa. Because these and other subcommittees are siloed from each other, they tend to function as echo chambers, which was apparent yesterday.
After taking roll at the meeting’s start, Dunn welcomed a group of non-voting members to the subcommittee, including internal medicine physician Wael Garas, Brandon Burns of Peak Recovery Centers, Madalyn McElwain of the Psychedelic Bar Association, Emily Holcomb of Colorado’s Department of Health Care Policy & Financing, and Joshua White of the Fireside Project.
The subcommittee then discussed a variety of topics with wide-ranging implications, including peer support hotlines, the boundaries of unlicensed facilitation and harm reductions services, the board and governing agencies’ power over personal use, the status of traditional healers, and the impact of video recording on client privacy and autonomy.
Third Party Peer Support
Joshua White gave a presentation on the Fireside Project, which offers peer support by phone and text to people during and after psychedelic experiences.
White discussed the Fireside Project’s smartphone app, a recent study the project published in the journal Psychedelic Medicine, and potential collaborations with Colorado’s Natural Medicine services program.
White drew comparisons between the Fireside Project and other peer support services like the Trevor Project, the 988 Suicide & Crisis Lifeline, and Crisis Text Line. It was somewhat disconcerting to hear him mention Crisis Text Line, which periodically sends police to users’ homes and was publicly condemned for profiting from their data.
Years ago, I urged White to avoid getting carried away with data analytics, mentioning Crisis Text Line as a cautionary tale. But during yesterday’s meeting, he said the Fireside Project’s latest update emphasizes data collection and research. Data can be useful, but it can also be used inappropriately. The organization’s privacy policy says it does not sell users’ personal information. However, it is silent on the project’s use of de-identified data, which is what Crisis Text Line commercialized before public backlash prompted it to stop sharing all data.
The privacy policy states that “[w]e use certain cookies, pixel tags and other technologies to help us understand how you use our website.” The Federal Trade Commission has recently cracked down on mental health websites that use tracking pixels, “which enable platforms to amass, analyze, and infer information about user activity.” Given the sensitivity and federal illegality of psychedelic use, the Fireside Project should re-evaluate its use of tracking pixels.
Concerns regarding harmful police intervention have also been raised regarding Crisis Text Line and the 988 Suicide & Crisis Lifeline. Yesterday, White told the board the Fireside Project’s recent study found that callers often claimed they would have contacted 911 or gone to the emergency room if not for the hotline’s peer support. He argued that peer support could potentially reduce reliance on emergency services. However, neither the study nor White’s presentation disclosed how many callers said contacting the project worsened their condition or how often the hotline sent police to users’ homes (White said the project has fielded about 20,000 calls).
If the Fireside Project is proposing partnerships with state psychedelic programs, it is important to have information on potential risks in addition to benefits. At the conclusion of his presentation, White provided his email address and invited questions. I reached out for additional statistics, and to better understand the project’s privacy policy, but he did not respond.
Unlicensed Integration or Harm Reduction Services?
One of the meeting’s more interesting moments occurred when White explained that the Fireside Project’s peer support specialists provide psychedelic integration to Coloradans. He then discussed what he claimed are misperceptions regarding peer support. While some think peer support is shallow compared to psychotherapy, White said peer support offered by the Fireside Project can be just as substantive and profound. He added, “every Colorado resident currently has free access to integration support [through the Fireside Project].”
This discussion prompted board member Alisa Hannum to ask whether the Fireside Project’s peer support specialists might be acting as unlicensed facilitators when they provide integration services in Colorado. Under Senate Bill 290, which governs Colorado’s natural medicine services, only licensed facilitators can perform psychedelic integration, and violations are a Class 2 misdemeanor (Colorado Revised Statutes, 12-20-407).
Unlicensed individuals can provide other services like psychedelic harm reduction, but they must inform clients (called participants in Colorado) that they are not licensed facilitators, and they cannot advertise their services.
Senior Assistant Attorney General Ashley Moller responded that the board might want to define certain terms like harm reduction, which could determine whether the Fireside Project’s services constitute psychedelic integration or harm reduction services.
This situation illustrates a problem with SB 290, introduced by Senator Steve Fenberg to amend the Natural Medicine Health Act (NMHA), which voters approved last November. As approved by voters, the NMHA allowed people offering harm reduction services to engage in unpaid advertising. SB 290 eliminated that option.
SB 290’s restrictions may put the Fireside Project in a bind. If its peer support specialists are providing integration as described by White, then they may be practicing as unlicensed facilitators, in violation of SB 290. In contrast, if their services are categorized as harm reduction services, then they cannot advertise. Consequently, White may have violated this restriction by discussing the Fireside Project’s services in yesterday’s public meeting. The project’s website and other promotions could violate the advertising ban.
This scenario illustrates the absurdity of prohibiting those offering harm reduction services from advertising. It’s not in the public’s best interest. When people offer harm reduction services, you want others to know, so that they can utilize the services.
Moller’s suggestion that the board might define harm reduction might not solve this problem because SB 290 codified advertising restrictions. Further, because harm reduction lies within the personal use side of SB 290, and its predecessor the NMHA, harm reduction arguably falls outside the advisory board’s jurisdiction (or at least it should).
Board and Agency Power Over Personal Use
During the campaign to pass the NMHA, proponents like attorney Sean McAllister promised that “[n]o state agency can regulate the private personal possession, home cultivation, sharing, or use of these natural medicines for adults over 21.” Oregon attorney Jon Dennis, Colorado attorney Martha Hartney, and I were less certain.
I’ll leave further discussion of DORA’s power over personal use for another day. But the agency, its advisory board, and Assistant Attorney General Moller believe they have at least some power over personal use. Moller’s suggestion that the board define harm reduction, which falls within personal use, suggests a perceived power to regulate it. Further, the board’s Subcommittee on Indigenous and Religious Use has debated what constitutes “a bona fide religious, culturally traditional, or spiritual ceremony” to define an exemption to SB 290’s facilitator licensing requirements. Like harm reduction services, these ceremonies fall within SB 290’s definition of personal use. By defining them and the contours of the exemption, DORA and the board can expand or contract what constitutes personal use.
Differing Views on the Status of Traditional Healers
This brings me to a growing division within the Natural Medicine Advisory Board. What appears to be a majority of board members, most of whom have healthcare, legal, or law enforcement backgrounds, believe that regulated natural medicine services are intended for medical use, and non-medical uses belong on the unregulated, personal use side of SB 290, including the act’s exemption for religious, traditional, or spiritual ceremonies.
In contrast, what appears to be a minority of board members, who serve on the Indigenous and Religious Use Subcommittee, believes that the regulated natural medicine program should make room for Indigenous, religious, and spiritual practitioners. In other words, some board members, like Dr. Clarissa Pinkola Estés, believe traditional healers should have a choice regarding whether they work on the unlicensed personal use side of SB 290, where they cannot advertise and likely cannot profit (removing their ability to profit while offering unregulated ceremonies is another potential effect of SB 290), or as licensed facilitators within its regulated framework, where they can advertise and potentially make a living.
During last month’s meeting of the full Natural Medicine Advisory Board, it appeared the board was close to resolving this issue regarding inclusion of traditional healers and spiritual and religious practitioners. In earlier subcommittee meetings, board members had proposed several facilitator licensing schemes. The full board discussed them last month.
Bradley Connor presented a tiered framework that ostensibly priviledged licensed healthcare providers. The proposal drew criticism that it prioritized Western medical practitioners while potentially treating traditional healers as inferior, limiting their privileges. Though sensitive to these concerns, Connor worried that traditional healers are unqualified to treat people with certain mental health conditions.
Skippy Upton Mesirow proposed a model consisting of intersecting licensing spheres instead of tiers, which put different practitioners on equal footing. Though Mesirow’s proposal was slightly confusing, many board members supported the idea that facilitators with different backgrounds should be treated as equals. However, many continued to acknowledge that clients with complex medical histories should potentially be routed to Western healthcare specialists.
Board member Lundy proposed a model that includes a single facilitator license, without tiers, comparable to Oregon’s approach to psilocybin facilitator licensing. However, unlike, Oregon’s program, which prohibits licensed healthcare providers from practicing the privileges of their medical licenses while acting as psilocybin facilitators, Lundy’s model would allow Colorado facilitators with healthcare licenses to practice within the sphere of those licenses in addition to acting as natural medicine facilitators.
At last month’s full board meeting, it seemed as though a consensus was forming around Lundy’s approach, prompted by calls to welcome Indigenous, religious, and spiritual practitioners into SB 290’s regulated program. But at yesterday’s subcommittee meeting, some members of the Emergency Response, Safety, and Ethics Subcommittee seemed to revert to a belief that Indigenous, religious, and spiritual facilitators may belong on the unlicensed, personal use side of SB 290.
Facilitator Consumption of Psychoactive Substances
This point of contention was most apparent when Bradley Connor asked whether the subcommittee should recommend banning facilitator consumption of natural medicines during the provision of natural medicine services. Previously, members of the Subcommittee on Indigenous and Religious Use have explained that some traditional healers consume psychedelics, or other substances, while conducting ceremonies. Though Connor did not name the Subcommittee on Indigenous and Religious Use, he was likely alluding to these discussions when he raised a potential ban on facilitator consumption.
Connor said facilitator consumption has no place in natural medicine services where participants pay to address mental health issues. Subcommittee chair William Dunn and member Joshua Goodwin agreed. However, Alisa Hannum observed that no Indigenous healers or members of the Subcommittee on Indigenous and Religious Use were present, possibly suggesting that discussion of facilitator consumption could wait until they have a chance to comment.
“I'm concerned, I guess, about the spiritual piece, because I do think there's going to be a push to allow some kind of regulated spiritual facilitation within those scopes of practice,” said Hannum. “So I think on the face of it. To those of us who are outside of that realm, it seems like kind of a no brainer that we shouldn't allow this, it seems like a safety risk. I would love to hear from some of the folks that practice this way, or who endorsed practicing this way. And I don't know that any of those folks are on this meeting.”
Hannum suggested that the board could recommend a ban on facilitator consumption at licensed healing centers while leaving the possibility for facilitator use open during services offered outside healing centers, for instance, in personal residences.
In response, Goodwin proposed a categorical ban on facilitator consumption, which might be subject to limited exceptions, on a case-by-case basis, for traditional healers who make a compelling argument for it.
Regardless of one’s view on facilitator consumption of psychoactive substances, this discussion revealed that the apparent board majority opinion that Indigenous, religious, and spiritual healers belong largely outside the regulated framework remains intact despite earlier indications the board might welcome them as licensed facilitators. This issue clearly remains unresolved.
Video Recording Administration Sessions
Mandated video recording of psychedelic administration sessions was another point of contention at yesterday’s meeting. Connor suggested that video recording should potentially be mandated. He acknowledged, however, that members of the Subcommittee on Indigenous and Religious Use might push back against mandatory recording.
Non-voting subcommittee member Madalyn McElwain expressed concerns regarding client autonomy and confidentiality. Specifically, McElwain worried video recordings could be subpoenaed as evidence, perhaps by federal law enforcement. However, Dunn and Connor swiftly disregarded McElwain’s concerns.
Connor said he often records participants in clinical psychology research. Dunn said “it’s very common for medical procedures to be video recorded.” However, in my experience, it is unusual for patients to be recorded during medical procedures. I cannot think of a single area of medical practice where video recording patients is mandated or even common.
Connor then claimed that client information, including video recordings, will be protected under the Health Insurance Portability and Accountability Act (HIPAA). That’s likely incorrect, and it reflects a common board misunderstanding of SB 290 and the confidentiality of client information.
According to Connor, SB 290 mandates that HIPAA protects client information. But SB 290 does not mention HIPAA or other privacy laws. Further, because the substances provided by Colorado’s natural medicine services will be federally illegal, and many healing centers will operate outside the healthcare system, HIPAA, a federal statute, like won’t apply to most client information, especially data regarding sessions where psychedelics are administered.
Connor’s misunderstanding may stem from Assistant Attorney General Ashley Moller’s interpretation of SB 290 at a previous meeting, where Moller suggested that client data was HIPAA-protected medical information. However, SB 290 merely states that participant (client) records “constitute medical data as described in Section 24-72-204(3)(a)(I).” That section of the Colorado Revised Statutes only defines client information as medical data for the purposes of the state’s public disclosure rules. It arguably means only that people cannot obtain participant information through public records requests (called CORA requests in Colorado).
Some readers, including Moller and Connor, may have misinterpreted SB 290 to mean that because participant information is treated as medical data under Section 24-72-204(3)(a)(I), it is treated as medical information more broadly and protected by HIPAA. But SB 290 does not indicate that participant data constitutes medical data in any context outside public records law, or that HIPAA or any other privacy law protects it. Moller and the board should address this potential point of confusion in future meetings.
Regarding mandated video recording, the board can look to Oregon for inspiration. Under Oregon’s psilocybin rules, video recording occurs only upon mutual agreement of clients and facilitators. Requiring video recording is likely to deter some communities, including those disproportionately impacted by the war on drugs, and related surveillance methods, from participating in natural medicine services.
At the conclusion of today’s meeting, the subcommittee appeared to agree that video recording could potentially be optional. Some members suggested that clients should be counseled on the role and importance of video recording, which is a good suggestion. I’d argue they should also be counseled on potential privacy risks.
These discussions will undoubtedly continue in subsequent meetings. Subscribe to Psychedelic Week for continued coverage.
*The views expressed on Psychedelic Week do not represent the views of Harvard University, POPLAR at the Petrie-Flom Center at Harvard Law School, Florida State University, or the Florida State University College of Law. Psychedelic Week is an independent project unaffiliated with these programs and institutions.
Mason Marks, MD, JD is a Visiting Professor of Law at Harvard Law School. He is also the Florida Bar Health Law Section Professor at Florida State University, senior fellow and project lead of the Project on Psychedelics Law and Regulation (POPLAR) at the Petrie-Flom Center at Harvard Law School, and an visiting fellow at the Information Society Project at Yale Law School. Marks teaches drug law, psychedelic law, constitutional law, and administrative law. Before moving to Florida, he served on the Oregon Psilocybin Advisory Board where he chaired its Licensing Subcommittee. Marks has drafted drug policies for state and local lawmakers. His forthcoming book on psychedelic law and politics will be published by Yale University Press. He tweets at @MasonMarksMD and @PsychedelicWeek.
Great summary of the topics and challenges. Seems like, for now, there is definitely a lean towards a more regulated system. Going to be tough for traditional practitioners to be regulated by guidelines designed by governmental agencies who are constricted by regulations.
Excellent analysis! The compromises of the legislative process, the “we will get to those later,” are striking back, hard.
Particularly interesting is the gap (and ensuing conflicts) between Regulated Access (this Board) and Personal Use (no oversight, as intended).