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Oregon Psilocybin Agency Seeks Comments on Psychedelic Data Rules
Oregon Psilocybin Services asks for feedback on rules to implement psychedelic data collection bill, SB 303, supported by Senator Steiner and the Healing Advocacy Fund
This week, the Oregon Health Authority (OHA) is receiving public comments on new draft rules for the state’s psilocybin industry. The OHA published an original set of rules last December to implement Measure 109 (the Oregon Psilocybin Services Act), which voters approved in November 2020.
Psilocybin businesses and facilitators licensed earlier this year are operating under the OHA’s original rules. The recently proposed updates make numerous “technical fixes” and implement Senate Bill 303 (SB 303), a psilocybin data collection bill the legislature enacted in May.
On Wednesday and Thursday of this week, the OHA’s psilocybin services division held online public listening sessions to receive feedback on the proposed rules. The agency held a third and final hearing this morning. The OHA will continue receiving written testimony until Tuesday, November 21st at 5pm Pacific. Readers can submit comments by emailing the agency at firstname.lastname@example.org.
Though OHA’s proposed rules include technical fixes in many areas, from psilocybin product manufacturing to facilitator training, the most controversial and widely discussed rules involve SB 303. The bill has a complex history one can read about here, here, and here. Its sponsor, Senator Elizabeth Steiner unveiled SB 303 on January 9, within two weeks of OHA’s publication of its original ruleset in December.
In Wednesday’s public listening session, one of the most frequently discussed topics was the nature of SB 303’s data opt-out provision. OHA’s proposed rules, which will implement the bill, allow clients to opt out of having any data collected under SB 303 from being aggregated or reported to OHA, which would otherwise collect and share that data with Oregon Health & Science University (OHSU).
This issue was discussed repeatedly during several meetings of OHA’s Rules Advisory Committees (RACs) held to discuss early drafts of the proposed rules. Most participants on the RACs interpreted SB 303’s opt out provision to be unrestricted. In other words, once a client opts out, none of the data collected under SB 303 is aggregated by psilocybin service centers or shared with OHA and OHSU.
However, on September 14 , RAC member Heidi Pendergast of the Healing Advocacy Fund surprised other members with a previously unheard interpretation of SB 303. According to Pendergast, the rules should allow clients to opt out of sharing some types of aggregated data with OHA but not others. Several RAC members expressed confusion in response.
At a subsequent RAC meeting on September 20, Erin Williams, an attorney representing Oregon’s Department of Justice (DOJ), said her office had reviewed the issue from a legal perspective. On her interpretation, SB 303 allows clients to opt out of sharing all data collected under the bill. OHA’s current proposed rules reflect this interpretation.
Nevertheless, Pendergast’s minority view resurfaced months later, just before this week’s listening sessions. The Healing Advocacy Fund circulated an email promoting it. “Contact the OHA to let them know that reporting client service averages and adverse events for all clients is critical to understanding and increasing program safety,” said the Fund (emphasis its own).
At Thursday’s listening session, Pendergast and the Fund’s Sam Chapman reiterated this position. Chapman said a partial opt out had always been the intent of SB 303. To investigate, Psychedelic Week reviewed footage of Oregon House and Senate discussions regarding the bill.
The result is a short video titled The Most Important Thing About Senate Bill 303 (embedded below). Psychedelic Week was unable to find cases where Steiner or the Fund, which lobbied for the bill’s passage, mentioned a partial opt out. In many cases, they described an “overt opt-out option” or clients’ “full authority to opt out.” Several lawmakers emphasized the importance of the opt out prior to voting on SB 303. This raises the question, would the legislature have passed SB 303 without Steiner and Chapman’s repeated reassurances of a complete opt out?
Psychedelic Week also reviewed testimony submitted by Chapman and the Healing Advocacy Fund throughout the legislative process.
On March 22, the Fund submitted the following slides to the Oregon Senate Committee on Health Care. The first slide states, “clients can opt-out from having their information aggregated and passed on for reporting purposes.” The Fund highlighted the statement in yellow and put the words “clients can opt-out” in bold.
The second slide states “clients can opt out of having info passed on to OHA.” The Fund underlined “clients can opt out.”
These slides refer to the -2 amendments to SB 303 sponsored by Senator Steiner. The original bill contained no opt out provision, but the -2 amendments added one, which was viewed by the public, Steiner, and the Healing Advocacy Fund as responsive to privacy concerns.
On February 10, Chapman sent an email to the Fund’s mailing list. “Worth noting up front that the biggest request we heard from the community is for clients to have the ability to opt-out of having their information shared with the OHA, which is now reflected in the new version.”
Days later, on February 22, Chapman submitted testimony to the Senate Committee on Health Care regarding the -2 amendments. “Under the revised version of SB 303, a client may choose to opt-out of having a Service Center provide their aggregate information to the OHA,” Chapman told legislators.
On May 3, Chapman submitted testimony to the House Committee on Behavioral Health & Health Care. In bold text, he says, “clients have full authority to opt-out of having their aggregated information passed along to the Oregon Health Authority.”
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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, Yale Law School, Florida State University College of Law, or any other entity with which the author is associated. 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.