Psychedelic Surveillance Bill Would Raise Social and Economic Cost of Oregon Psilocybin Services
Through SB 303, Senator Elizabeth Steiner seeks to overturn psilocybin client confidentiality rules days after state health authority adopts them
On December 27, the Oregon Health Authority (OHA) published final rules for the state’s psilocybin services program. These rules mark the end of a two-year implementation period for Measure 109, the Oregon Psilocybin Services Act. Voters approved this ballot initiative on November 3, 2020. It allows adults 21 and older to receive psilocybin with support from trained facilitators at licensed service centers.
On January 9, less than two weeks after the OHA published its final rules, Senator Elizabeth Steiner introduced a bill to override them. Steiner’s Senate Bill 303 (SB 303) would put all psilocybin clients under mandatory government surveillance.
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In addition to disregarding client autonomy and confidentiality, Steiner’s bill would expose clients to social, occupational, and legal risks. It would increase the cost of psilocybin services for clients, business, and taxpayers. Further, SB 303 ignores the will of voters, who approved Measure 109 with robust confidentiality protections, and those who devoted countless hours to its subsequent rule making process.
Over the past two years, mandatory data collection was heavily debated, and many stakeholders weighed in on the issue. Last June, the Oregon Psilocybin Advisory Board recommended giving clients control over how their data is processed and used, including the right to decline sharing it with researchers and other third parties outside service centers. Members of OHA’s Rules Advisory Committee, tasked with commenting on the agency’s rules, agreed with the Advisory Board.
I have previously described how lobbyists from the Healing Advocacy Fund secretly worked with researcher Todd Korthuis to undermine the Advisory Board’s recommendations. Korthuis is an addiction medicine physician at Oregon Health Science University (OHSU), where Senator Steiner, also a doctor, works as an adjunct associate professor.
Initially, the OHA seemingly caved to the influence of Korthuis and the Healing Advocacy Fund. However, in response to public comments, the agency reversed its position. In its final December rules, the OHA gave client’s the right to choose whether to share their data. Unless clients give explicit consent, their information will not be provided to third parties for research or any other purpose. Moreover, they cannot be turned away for declining to share information.
The OHA’s current rules reflect the text of Measure 109, which erects a data barrier between service centers, where client information is stored, and the hands of third parties, including government agencies, law enforcement, and corporations. That’s important because despite having been legalized in Oregon, psilocybin services remain illegal under the federal Controlled Substances Act.
Steiner’s SB 303 would remove this data barrier. It requires service centers and facilitators to collect sensitive information about clients and send it to the OHA. Consequently, the government agency would have access to detailed client records, which are currently off limits under Measure 109 and the agency’s final rules. If SB 303 succeeds, the OHA would not only collect client records, it would also forward them to OHSU, where researchers like Korthuis will experiment with it.
There are many risks and costs associated with this plan.
SB 303 would endanger clients and deprive them of autonomy
Centralizing the storage of client information at the OHA creates a one-stop-shop for federal law enforcement, which will have easy access to the agency’s database. Some stakeholders assume the federal government will look the other way regarding Oregon’s psilocybin program, as it has with state marijuana programs. However, that outcome is far from certain.
We cannot know who will become president in 2024 or what their drug policies will be. Whoever assumes office will set policy for the Drug Enforcement Administration. Regardless of the outcome, Measure 109’s confidentiality requirements provide a layer of protection for client information, which is more difficult to acquire when decentralized. However, SB 303 would centralize the storage of client data within an OHA database, exposing clients to legal risks.
Preventing data from leaving service centers is also important due to Measure 109’s lack of legal protection for psilocybin clients. By comparison, subsequent bills have provided stronger safeguards. For instance, Colorado’s Natural Medicine Health Act prevents psilocybin clients from losing parental rights or being removed from organ transplant lists. In Washington State, SB 5263 would prevent employees from being fired for receiving psilocybin.
Measure 109 provides none of these protections. If evidence of clients’ participation leaves service centers, they could be fired, evicted, or denied various benefits. Fortunately, to mitigate these risks, Measure 109 creates barriers between client data and the outside world. However, Steiner’s bill would change that. By removing Measure 109’s data barriers, SB 303 would increase the risk of exposure through hacks and other data breaches.
SB 303 also places no limits on the data that must be shared with third parties or how they can use it. The bill provides a list of required data points, including each client’s race, ethnicity, preferred spoken and written languages, disability status, sexual orientation, gender identity, income, age, sex, education level, county of residence, veteran status, and health status. Under SB 303, service centers and facilitators would also be forced to disclose why each client seeks psilocybin services, details of their mental health history, and the long- and short-term outcomes they experience following psilocybin services.
The bill would also empower OHA to require that any additional variables be collected. SB 303 even authorizes the Advisory Board and OHSU to make recommendations regarding the collection of additional data, which would ultimately end up in OHSU’s possession, creating a conflict of interest. OHSU and members of the Advisory Board who work at the university could be incentivized to maximize the data collected and shared with them.
Importantly, the OHA’s existing psilocybin rules allow clients to share their data with third parties if they willingly make that choice (after facilitators explain the risks and benefits). The agency created a process for clients to consent for this purpose, with input from the Advisory Board and other stakeholders. However, SB 303 eliminates clients’ ability to choose.
SB 303 would increase the cost of Oregon's psilocybin services
During the Psilocybin Advisory Board’s December meeting, OHA official Angela Albee said the agency’s psilocybin program was nearly out of money The two-year implementation period has cost Oregon taxpayers millions, and very little remains in OHA’s coffers. Albee said the agency was asking the state for more money.
Budget documents reveal that OHA seeks $6.6 million from Oregon’s general fund to administer its psilocybin program for one year starting July 1, 2023. In a related request, the agency seeks an additional $800,000, some of which will fund its accreditation of psilocybin testing labs.
Steiner’s SB 303 would require the OHA to collect, store, process, and transmit psilocybin client records. It would also task the agency with ensuring that service centers and facilitators comply with new data requirements. These responsibilities will increase the cost of administering the program and require additional funding.
As Oregon’s psilocybin program struggles to remain solvent, and OHA requests millions from Oregon taxpayers, one must ask where this money will come from. Most likely, the expense will be passed on to licensees in the psilocybin industry, and taxpayers could be asked to cover any excess.
Under current OHA rules, most psilocybin manufacturers, testing labs, and service centers must pay annual license fees of $10,000. Facilitators pay $2,000. These fees have been criticized for making the industry inaccessible to aspiring business owners and practitioners. Increasing fees to fund OHA’s new responsibilities under SB 303 will exacerbate the problem. Moreover, any increase in license fees will likely be passed on to clients, placing psilocybin services further out of reach for the average person.
Again, the current OHA rules are already very accommodating to third party researchers, including those at OHSU. The only requirement is that they partner with a service center and seek client permission to access their data. Given that researchers can already request client information, is SB 303 worth the added cost?
SB 303 unnecessary burdens psilocybin businesses and facilitators
Steiner’s bill creates new obligations for psilocybin business and facilitators who must already comply with complex OHA regulations. In addition to eliminating clients’ ability to choose whether they share data, SB 303 eliminates service center and facilitator’s choice regarding whether they request, store, and share it.
SB 303 also requires service centers to provide information about their businesses that is not necessary under current rules. For instance, they must disclose the number of clients served, the number of clients turned away and the reasons for declining service, the number and circumstances of adverse events, the amount billed to each client, the psilocybin doses administered, the duration of psilocybin services, and other details regarding their business and psilocybin service protocols.
SB 303 disregards the will of voters
In 2020, Oregon voters approved Measure 109, which includes strong protections for client confidentiality and prohibited OHA from obtaining client records under most circumstances. Measure 109 also created the Psilocybin Advisory Board to make recommendations to OHA during the two-year rulemaking process. Though imperfect and expensive, the rulemaking process involved diverse stakeholders from across the state.
Steiner’s bill seeks to overrule the fruits of that two-year process, which cost millions of dollars and countless hours of volunteer work on behalf of board members, rules advisory committees, and members of the public who commented on several versions of the draft rules.
SB 303 changes the nature of Oregon’s psilocybin program
Measure 109 is best characterized as a framework for the supported adult use of psilocybin. Under this type of framework, adults 21 and older can access psilocybin services for any reason, without a medical diagnosis or prescription.
The OHA’s final rules reflect Measure 109’s non-therapeutic nature. For instance, the rules specify that psilocybin services do not constitute medical treatment. They also prohibit facilitators from diagnosing or treating health conditions and making medical claims. Service centers cannot be located within healthcare facilities, and if facilitators happen to be healthcare providers, the rules prohibit them from exercising the privileges of their healthcare licenses while acting as facilitators.
Through SB 303, Steiner is attempting to make Measure 109 something it is not: a statewide clinical trial in which clients are forced to participate. This would change the nature of Measure 109, shifting the program in a medical direction to suit the interests of lobbyists and researchers.
What happens next?
On January 13, SB 303 was referred to the Senate Committee on Healthcare. There are currently no hearings schedule to discuss the bill, but readers can follow its progress here and on Psychedelic Week.
Medical research is a good thing. However, Oregon’s non-therapeutic psilocybin services program is not the place for it. If Steiner and her colleagues at OHSU want to conduct clinical trials involving psilocybin, they should seek the funding to conduct them.
Subjecting psilocybin clients to forced government surveillance and mandatory research is careless and unethical. Besides, researchers can already collect data from psilocybin clients. All they need to do is ask.
*The views expressed on Psychedelic Week do not represent the views of POPLAR at the Petrie-Flom Center at Harvard Law School 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 the Florida Bar Health Law Section Professor at the Florida State University College of Law. He is the 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 affiliated fellow at the Information Society Project at Yale Law School. Marks teaches drug 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.
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