Oregon Psilocybin Suit for Disability Access May Proceed Says U.S. Court
In Cusker v. OHA, a U.S. District Court ruled against the Oregon Health Authority, which attempted to have the psychedelic suit dismissed
On Friday, a federal court blocked an attempt by the Oregon Health Authority (OHA) to end a psychedelics-related lawsuit. The plaintiffs seek OHA’s support to provide in-home psilocybin access for people with disabilities.
Oregon’s psilocybin services program opened in the summer of 2023. Voters approved Measure 109, the Oregon Psilocybin Services Act, in November of 2020. For two years, OHA drafted rules to govern the resulting program, with input from the Oregon Psilocybin Advisory Board. Since the program opened in 2023, state-licensed facilitators have administered psilocybin to clients only at regulated facilities called service centers.
One year ago, four plaintiffs (Jay Cusker, Alison Grayson, Kathryn Kloos, and Yolanda Suarez) sued OHA in federal court. The plaintiffs had previously asked OHA to develop a process for bringing in-home psilocybin services to people with disabilities who could not visit service centers. The plaintiffs believed this process would constitute a reasonable accommodation under the Americans with Disabilities Act (ADA).
OHA disagreed. The agency said plaintiffs’ request would expand the scope of Oregon’s Psilocybin Services Act. State attorneys argued that “there is no legal pathway to make accommodations for psilocybin to be consumed outside of a licensed service center,” and “the [Oregon Psilocybin Services Act] would need to be amended for accommodations to be permitted.” OHA’s denial of the plaintiffs’ request prompted the ongoing lawsuit, Cusker, et al. v. OHA.
Last September, OHA’s attorneys filed a motion to have the case dismissed (for lack of subject matter jurisdiction and plaintiffs’ failure to state a claim). The agency made peculiar arguments in support of its motion. First, OHA argued that the federal court lacked jurisdiction to decide the case because plaintiffs were asking OHA to violate federal law. OHA said psilocybin is a Schedule I controlled hallucinogen under the federal Controlled Substances Act. And it’s a federal crime to produce, possess, or distribute a Schedule I drug. Consequently, according to OHA, the plaintiffs’ request for in-home psilocybin services was federally illegal, and a federal court could not require the agency to violate federal law.
That argument is intriguing. Since psilocybin is a Schedule I drug (as OHA points out), one might argue that its entire psilocybin program violates federal law. If allowing facilitators to provide psilocybin in people’s homes violates the federal Controlled Substances Act, then allowing similar conduct in service centers might violate federal law as well.
OHA also argued that the plaintiffs’ request would violate state law—the Oregon Controlled Substances Act (a state version of the federal law)—because dispensing psilocybin outside a service center violates this Act.
The plaintiffs relied on a Hawaii case called Crowder, which involved a quarantine for dogs arriving in the state. Hawaii enforced the law against visually-impaired people with service animals. The U.S. Court of Appeals for the Ninth Circuit found that separating people from their service dogs violated the ADA. The court did not accept Hawaii’s claim that state law should control the outcome. Relying on this case, the federal court in Oregon rejected OHA’s attempt to place the state’s controlled substances act above the federal ADA.
A case involving access to marijuana dispensaries also bolstered the plaintiffs’ case. In Smith v. 116 S Market LLC, the plaintiff claimed that a marijuana dispensary violated the ADA by failing to provide compliant parking spaces for people with disabilities. A district court ordered the dispensary to provide the spaces and an accessible route to its property. Like OHA, the property owner said the court could not order the accommodation because it would force the defendant to facilitate access to a federally-illegal Schedule I substance (in this case, marijuana). The Ninth Circuit ruled for the plaintiff. It said the district court’s order to make the property accessible did not force the owner to facilitate marijuana distribution; it merely required ADA compliance (by providing equal access for people with disabilities).
In the current psilocybin dispute, Cusker et al., the district court viewed Smith as analogous. Instead of asking OHA to expand the scope of the Oregon Psilocybin Services Act, much like Smith’s plaintiff, Cusker’s were merely requesting equal access for people with disabilities. Consequently, their request, and a court order requiring it, would not violate federal or state controlled substance laws.
Attorney Kathryn Tucker serves on the plaintiffs’ legal team. She told me that before filing their legal claim, her clients approached OHA to request a reasonable accommodation. “We also filed an official tort claim notice before filing suit,” said Tucker. “The agency had ample opportunity to avoid litigation but opted not to.”
Disability access to psilocybin services also came up during OHA’s two-year rule making period (from 2021 - 2022). Some members of the Oregon Psilocybin Advisory Board urged OHA to create access for people with disabilities, for whom it would be burdensome to visit a service center.
OHA declined to address the issue through rule making. As it claimed in Cusker, OHA said it lacks authority under the state psilocybin law to allow in-home facilitation. But that’s not entirely clear.
Oregon’s Psilocybin Services Act granted OHA broad discretionary powers. For instance, in addition to authorizing OHA to license psilocybin facilitators and service centers, the Act allowed the agency to regulate psilocybin services “for other purposes as deemed necessary or appropriate by the authority.” The Act prohibited construing its text to “exempt a person from a federal law,” which arguably includes the Americans with Disabilities Act. It gave OHA unstated, implied powers “necessary or proper” to carry out its functions. Furthermore, it prohibited OHA from refusing to perform duties by claiming that certain conduct is illegal under federal law . In other words, OHA had flexibility to interpret the psilocybin act in a manner consistent with ADA requirements.
Similar issues emerged in Colorado. The state’s natural medicine advisory board raised concerns about in-home access for people with disabilities. The Department of Regulatory Agencies (DORA), Colorado’s OHA equivalent, initially entertained the possibility. It seemed like DORA and its advisory board might adopt rules to allow flexible in-home services. However, shortly before finalizing the rules, DORA proposed an amendment to limit home services to people requiring palliative care. That would exclude other individuals, such as people with physical impairments or conditions such as severe post-traumatic stress disorder or social anxiety disorder.
Cusker could set an important precedent. Outside Oregon, people with disabilities could sue state agencies for similar ADA accommodations. Lawmakers drafting psychedelic legal reforms might put disability access at the heart of their bills.
*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 its College of Law, or Yale University. Psychedelic Week is an independent project unaffiliated with these and other programs and institutions.
Mason Marks, MD, JD is the Florida Bar Health Law Section Professor at Florida State University. 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 a visiting fellowat the Information Society Project at Yale Law School. Professor Marks teaches drug law, psychedelic law, constitutional law, and administrative law. His forthcoming book on psychedelic law and politics will be published by Yale University Press. He tweets at @MasonMarksMD and @PsychedelicWeek. Follow him on LinkedIn and Bluesky.