Diehl Offers Amendment to Steiner's Oregon Psilocybin Surveillance Bill SB 303
Through his proposed amendment, Diehl continues an unexpected trend where republicans defend individual rights in states that legalize psychedelics
*Update 5/8/2023: The House Committee on Behavioral Health and Healthcare rejected Diehl’s Amendment and forwarded Steiner’s SB 303 to the House floor.
This afternoon at 3pm Pacific/6pm Eastern, the Oregon House Committee on Behavioral Health and Healthcare will vote on Senator Elizabeth Steiner’s psilocybin surveillance bill SB 303.
The meeting agenda and other materials can be found on the committee’s website. Viewers can watch the proceedings remotely. Among the available materials is a new amendment to Steiner’s bill offered by republican Representative Ed Diehl.
Diehl’s amendment is the first offered by someone other than Steiner. Before SB 303 reached the Committee on Behavioral Health and Healthcare, it was heard by the Senate Committee on Health Care, where comments submitted in opposition to the bill outnumbered those in favor by a factor of six-to-one (thirty opposed, and five in favor). Nevertheless, Steiner’s proposal effortlessly sailed through the Senate. Some activists I spoke with attribute its success to Steiner’s position as Co-Chair of the influential Joint Committee on Ways and Means.
Through his amendment, Diehl continues what appears to be a trend where republican lawmakers defend people’s rights to privacy and autonomy in states that legalize psychedelics. Last month, Colorado republican Representative Ron Weinberg opposed democratic Senator Steve Fenberg’s amendment to Proposition 122, the Natural Medicine Health Act, which attempted to gut sections of the ballot initiative. “The original intent has been altered from what the voters put in place,” said Weinberg in response to Fenberg’s bill.
In Oregon, Steiner introduced SB 303 less than two weeks after the Oregon Health Authority (OHA) adopted final rules for implementing Measure 109, the state’s Psilocybin Services Act. Approved by voters in 2020, the ballot initiative allowed clients to receive psilocybin with support from trained and licensed facilitators.
Measure 109 contained robust confidentiality protections to prevent client data from leaving service centers, the facilities where clients receive psilocybin (OHA licensed the first service center on Friday). Those protections were reflected in the OHA’s regulations, which have been codified in Oregon law.
Many who wish to operate psilocybin businesses in Oregon believe Steiner’s SB 303 would erode the confidentiality protections of Measure 109, as well as the regulations created by OHA during a two-year rule making period. Her bill would require psilocybin service centers to collect sensitive data on every client and transmit it to the OHA. The government agency would then forward the information to Oregon Health Science University (OHSU), which employs Senator Steiner as an adjunct associate professor.
Steiner’s timing left some locals feeling as though she had been lying in wait to unilaterally alter the rules shortly after their publication. These regulations were the product of two-years of deliberation by the OHA, its Psilocybin Advisory Board, members of the public, and stakeholders who will be regulated under Measure 109.
In addition to eroding client privacy, the bill would burden service center operators with extensive data collection requirements, the costs of which will inevitably be passed on to clients. The high cost of psilocybin services in Oregon received widespread criticism on social media last week when the first service center to be licensed published its price list. The cost of a single psilocybin session tops out at $3,500.
In addition to raising costs of psilocybin services in Oregon, some say Steiner’s bill is simultaneously vague and over-broad. Its text is unclear regarding what happens to client data after its collection. In her Senate and House testimony, Steiner repeatedly claimed client data would be de-identified. However, the text of her bill says it will be “protected,” leaving aspiring service center operators scratching their heads.
Under SB 303, service centers would be required to share client data by default, which is not permitted under the ballot initiative voters approved. Technically, clients could opt-out of this data sharing scheme, but no method for opting-out has been specified. Activists raised concerns that people seeking psilocybin services may be vulnerable and unaware of the risks of widespread client surveillance. Accordingly, placing the burden on clients to opt-out of data collection, at a time when they are presented with large amounts of information regarding psilocybin services in general, strikes many as unethical.
Steiner’s bill would ostensibly give her employer, OHSU, a monopoly on client data transmitted from service centers to the OHA. Moreover, last year, Willamette Week reported that the Psychedelic Science Funders Collaborative (PSFC) had relationships with OHSU researchers, the names of which PSFC co-founder Graham Boyd declined to disclose.
PSFC is a primary funder of the Healing Advocacy Fund, a lobbying firm that attempts to influence the implementation of Measure 109. On several occasions, Steiner invited the Fund’s Executive Director Sam Chapman to testify alongside her in support of SB 303. The lack of transparency regarding the Fund’s connection to Steiner and OHSU’s researchers has left local stakeholders uneasy.
Steiner’s bill prohibits the data collected through her surveillance program from being sold. However, it does not prohibit other potentially profitable activities such as selling access to the data or patenting intellectual property that results from it.
Perhaps worst of all, SB 303 would give the OHA a blank check to expand Steiner’s psilocybin client surveillance program, requiring service center operators to collect additional, currently-unspecified data from clients in the future.
In response to SB 303, the Oregon Psilocybin Services Collaborative Community (OPSCC) swung into action to oppose Steiner’s proposal. OPSCC is a diverse group of activists, aspiring facilitators, and business owners throughout the state. They were active during the OHA’s rule making for Measure 109, where they advocated for the rights of psilocybin clients and service center operators. In the interest of full disclosure, I have worked with this all-volunteer organization on their regulatory and legislative proposals.
Initially, the OPSCC urged the Senate Committee on Health Care to oppose SB 303. However, after the group’s arguments against SB 303 appeared to have little impact, OPSCC changed tactics. When SB 303 reached the House Committee on Behavioral Health and Healthcare, OPSCC offered its own data privacy amendment to Steiner’s bill.
According to OPSCC, its amendment makes the following changes to Steiner’s proposal:
Client Opt-In: Informed consent is better assured when clients must opt-into research rather than becoming a research subject unless they opt-out.
Limit to Aggregated Data: Senator Steiner and HAF claimed it is now only aggregated data and no individualized data would ever leave the service center. However, the bill once had a lot of individualized data and so isn't clear that it's now intended to be limited to aggregated data. Ensuring it's limited to aggregated and not individualized data will be a major win for data privacy. So, we propose adding "aggregated" to information to make this limitation very clear.
Remove OHA Data gathering blank check: The bill gives OHA discretion to request any other data they wish, and that authorization should be removed to ensure we don't have to fight the same data privacy battle over and over.
Prohibit all monetization of data: The bill currently only prohibits the selling of data, but that should be broadened to include any monetization.
Require de-identification of ALL provider and service center data before sharing with OHSU: They don't need this identifiable data, and service center operators will be best protected from federal prosecution or persecution and vigilantism, if their identifiable information was removed before sharing with OHSU and its commercial partners.
Steiner and the Healing Advocacy Fund declined invitations from OPSCC to discuss or endorse the group’s proposed amendment. In his written testimony to the Behavioral Health and Health Care Committee, Chapman opposed each aspect of the OPSCC amendment and argued that Steiner’s proposal should remain intact.
Last week, OPSCC representatives presented their proposal at a meeting of the Behavioral Health and Health Care Committee. Simultaneously, the committee received eighteen written comments opposing SB 303 and two comments submitted in support. Those in favor included the Healing the Advocacy Fund’s Chapman and Tom Eckert, a proponent of Measure 109. Eckert resigned as Chair of Oregon’s Psilocybin Advisory Board shortly before a deadline to disclose his conflicts of interest.
Two comments submitted to the committee were neutral regarding SB 303. One neutral comment, submitted by OHA official Angela Albee, stated that the financial impact of SB 303 would be higher than acknowledged by Steiner. During the hearing last week, Albee estimated that the bill would add at least $280,000 to cover the annual salary of a new OHA data analyst and costs associated with additional rule making.
Members of the Committee on Behavioral Health and Healthcare appeared perplexed by Steiner's conclusion that her bill would have a “minimal fiscal impact.” I expect they’ll address this issue further this afternoon.
Representative Diehl’s amendment to SB 303 incorporates most of the changes proposed by the OPSCC. It would require clients to elect to share their data with OHA and OHSU rather than requiring service center operators to collect and share it by default. The OPSCC amendment would require client data to be de-identified and aggregated before being transmitted to the OHA, and the agency would publish the aggregated data periodically, making it available to researchers beyond OHSU.
Diehl’s amendment would prohibit all forms of monetization, including selling access to the aggregated client data. Importantly, it would eliminate the blank check Steiner’s bill would give OHA to add additional data types to her client surveillance program.
Given the their experience with the Senate, activists I spoke with were not overly optimistic that the Committee on Behavioral Health and Healthcare will adopt Representative Diehl’s amendment. There are three possible outcomes. The committee could adopt Steiner’s SB 303 in its current form, reject SB 303 outright, or adopt Diehl’s OPSCC-approved amendment.
I will update this article after the committee votes this afternoon. Follow Psychedelic Week for more in-depth coverage of Measure 109’s implementation in Oregon. These issues will undoubtedly resurface during the implementation of Proposition 122 in Colorado.
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*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, 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.