Posts Tagged:Oregon Psilocybin Services Act

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by: Corinne Celko

In 2020 Oregon became the first state to legalize psilocybin, a psychoactive compound found in certain mushrooms.  Measure 109, known as the Psilocybin Services Act, established a regulated program for adults over the age of 21 to purchase and consume psilocybin at service centers licensed by the Oregon Health Authority and under the supervision of licensed facilitators.  However, though Measure 109 was passed by a majority of Oregon voters, psilocybin services may never be available in certain Oregon cities and counties.  That’s because some cities and counties may place psilocybin business prohibitions on their local ballots for this year’s November 8 election.

Doing so would allow the electors in such jurisdictions to vote on whether or not to opt out of the legalized Psilocybin Services Act program.  As of the date of this post, at least Deschutes, Jackson, Linn, Klamath, Josephine, Crook, Coos, Malheur, Morrow, Umatilla counties have already indicated that they may refer such “opt-out” ordinances to their electors for voting in November’s election.  A county or city has until August 19 to refer an opt-out ordinance to its local elections official to ensure the ordinance can go on the November 8 ballot.

Local governments may see this option as the only way to protect their constituents from the perceived dangers of psychedelic substances in their communities.  But Measure 109 provides cities and counties with other powers to regulate psilocybin services in their jurisdictions and local governments who refer this matter to their electors are simply seeking a second bite at the apple, to opt entirely out of psilocybin just as they could or did with adult-use marijuana.

Cities and counties are entitled to regulate the use of lands within their jurisdiction.  And Measure 109 expressly allows cities and counties to adopt reasonable “time, place, and manner” restrictions for psilocybin-related businesses.  This means that local governments can allow participation in the Psilocybin Services Act program, while still regulating aspects of such uses, such as to ensure the safety of minors and the quiet enjoyment of their communities.  For example, cities and counties can limit the size of production and processing facilities to limit production; they can restrict hours of operation; and they can require buffer distances between psilocybin-related businesses and sensitive uses like playgrounds and parks.  Cities and counties use these types of time, place, and manner restrictions to regulate many uses within their jurisdictions.  These same tools are available now.

Notably, Measure 109, itself, contains restrictions on where licensed psylocibin facilities may locate and how they may operate.  For example, a Psilocybin Service Center (“PSC”) may not be located in an exclusively residential zone within city limits, and it may not be located within 1,000 feet of a school.  Moreover, a consumer must attend a preparation session and must consume the psilocybin under the supervision of a trained and certified facilitator while remaining on the PSC licensed premises.  Further, the Oregon Health Authority (“OHA”), the agency implementing the Psilocybin Services Act program, is preparing rules ranging from product testing standards to training standards for certified facilitators.  OHA will use its expertise in public health and safety to develop safety and efficacy standards for the Psilocybin Services Act program, in addition to local jurisdictions’ time, place, manner restrictions.

Hopefully, cities and counties take time to educate themselves about the Psilocybin Services Act program and opt to regulate psilocybin-related businesses the same way they regulate other land uses – with reasonable time, place, and manner restrictions – without choosing instead to reflexively opt out of psilocybin services altogether.  Opting out would deprive the electors who voted for Measure 109 from the benefit of its services.

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See Dave Kopilak’s public comment to the proposed rules published by the Oregon Health Authority:

In his comment, Dave makes specific recommendations to address the psilocybin facilitator “scope of practice” issue that he discussed in his blog post from a few weeks ago.

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Oregon’s Psilocybin Services Act (“PSA”) is the first state law legalizing access to psilocybin for adults. Psilocybin remains illegal to manufacture, distribute, dispense or possess under the federal Controlled Substances Act.  Those with terminal illness are one population known to benefit particularly from psilocybin therapy.  Clinical trials have shown that patients with advanced cancer may receive substantial and sustained relief from existential distress with this therapy.[1]  Hence many patients with advanced illness and those who care for them have keen interest in the PSA.  Many hope that psilocybin services will be an important new tool in the palliative care toolbox, easing suffering that serious ill patients may experience.

Following enactment of the PSA, having been involved in the effort to bring support to the measure from the end-of-life community, I convened a Psilocybin Services Act End of Life Interest Group (the “Group”), comprised primarily of health care professionals whose practice focuses on this patient population, including hospice and palliative care physicians, nurses, and mental health specialists.  The Group also includes the Director of the Oregon State Hospice Association and several attorneys whose practice focuses on law and policy relevant to end-of life-care.  Some of the Group’s members also serve on the Psilocybin Advisory Board. The Group convenes monthly to discuss and consider how to ensure that the needs of patients with advanced illness are addressed in the implementation of the PSA.  The Group has developed and shared comments with the Rules Advisory Committees that are drafting proposed rules under the PSA to recommend to the Oregon Health Authority in connection with the implementation of the PSA.  The Group intends to also develop discussion papers, available to inform the public and those involved with provision of psilocybin services.

Subjects of interest to the Group to date include:

  • ensuring that the training and licensure of facilitators recognizes the special needs of serving this population;
  • ensuring that those whose illness would prevent them from visiting a psilocybin service center are able to obtain reasonable accommodation;
  • establishing special end-of life-care focused psilocybin service centers;
  • exploring questions of involvement of medical professionals in psilocybin services in light of federal prohibition; and
  • developing research into the impact of psilocybin services on patient interest in aid in dying.

If you have an interest in this area or any ideas for the Group, please contact me, Kathryn Tucker at

Members of the Psilocybin Services Act End of Life Interest Group are:

  • Daniel Abrahamson, JD
  • Stephanie Barss, FNP, PMHNP
  • Jennifer Blechman, MD, FAAHPM
  • Sam Chapman, Executive Director, Healing Advocacy Fund
  • Ray Gertler, Ph.D.
  • Nick Gideonse, MD
  • Barb Hansen, MA, RN, CEO Oregon Hospice & Palliative Care Association
  • Pilar Hernandez-Wolfe, PhD
  • Rachel Rackow, MD
  • Steve Rosonke, MD
  • Kevin Roux, M.Ed., MSN, RN
  • Kathryn Tucker, JD

[1]Charles S. Grob et al., Pilot Study of Psilocybin Treatment for Anxiety in Patients with Advanced-Stage Cancer, 68 Arch Gen Psychiatry 71, 71 (2011) (anxiety levels measured at one, three, and six months after treatment “demonstrated a sustained reduction in anxiety”); Roland R. Griffiths et al., Psilocybin Produces Substantial and Sustained Decreases in Depression and Anxiety in Patients With Life-Threatening Cancer: A Randomized Double-Blind Trial, 30 J. of Psychopharmacology 1181, 1195 (2016) (single dose of psilocybin produced large and significant decreases in depression, anxiety or mood disturbance, and increases in measures of quality of life, life meaning, death acceptance, and optimism in patients with a life-threatening cancer diagnosis; effects sustained at 6 months); Matthew W. Johnson & Roland R. Griffiths, Potential Therapeutic Effects of Psilocybin, 30 Neurotherapeutics 734, 734 (2017); Stephen Ross, Therapeutic Use of Classic Psychedelics to Treat Cancer-Related Psychiatric Distress, 30 Int’l Rev. Psychiatry 317 (2018) (review of clinical trials from 1960–2018 researching therapeutic use of psychedelic treatment in patients with serious or terminal illnesses and related psychiatric illness; psychedelic-assisted treatment can produce rapid, robust, and sustained improvements in cancer-related psychological and existential distress.). See also Tara C. Malone et al., Individual Experiences in Four Cancer Patients Following Psilocybin-Assisted Psychotherapy, Frontiers in Pharmacology (Apr. 3, 2018), (participants with anxiety, depression, and other existential distress achieved relief with psilocybin treatment, and benefits were sustained throughout follow-up). See generally Lauren Slater, How Psychedelic Drugs Can Help Patients Face Death, N.Y. Times (Apr. 20, 2012), (“[T]he results showed that administering psilocybin to terminally ill subjects could be done safely while reducing the subjects’ anxiety and depression about their impending deaths.”).

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There seems to be a fair amount of confusion out there as to whether the Oregon Psilocybin Services Act (the “Act”) is medical or non-medical in nature.

A recent STAT article dove into the issue of precisely how to characterize the nature of psilocybin services under the Act.  Here are a few quotes from several of the folks that the author interviewed:

  • “Oregon very much is going to allow for diagnosis and treatment”
  • “[Oregon] did craft the measure in such a way where depression, PTSD, addiction are things that will be supported here”
  • “People will want mental health treatment but it’s not medical”
  • “This is not medical . . .But this is psilocybin-assisted therapy”
  • “Psilocybin facilitation . . .I mean, nobody knows what that is”

The members of the Oregon Psilocybin Advisory Board (“PAB”) themselves are all over the map on this issue, as are several of the PAB subcommittees.  The Oregon Health Authority (“OHA”) has been participating in the numerous PAB meetings and PAB subcommittee meetings that have taken place over the last year.  However, the OHA has taken a rather passive approach when it comes to keeping PAB members focused and within the boundaries of the Act.  For the most part, the OHA appears to have adopted a policy of “let’s just let them talk.”

I’m sure there are valid reasons for this, but I think opportunities have been lost over the past year as the PAB and the various subcommittees have, on more than a few occasions, gone off on tangents that either have nothing to do with the Act, are inconsistent with the Act, or show a fundamental misunderstanding of the Act.

As a result, the PAB has so far failed to make any final recommendations on what I would have thought from Day One were the handful of really important things that should have been at or near the top of everyone’s list, namely:  (1) what are the components of a preparation session, an administration session, and an integration session; (2) what are the contents of the client information form (which is the form that a client must complete before participating in an administration session); (3) what is the facilitator supposed to do with the information provided on the client information form; and (4) what, precisely, is the scope of practice of a facilitator.

To be clear, that’s not to say that there hasn’t been a lot of discussion about these issues.  It’s only to say that the discussions are occurring pretty late in the game and have become confusing and sprawling in nature.

Hence the confusion.

Back to the question at hand though:  What exactly are psilocybin services under the Act?

Let’s start off by reviewing a few definitions.  Here are the most relevant ones for our purposes:

  • “Psilocybin service facilitator” means an individual that facilitates the provision of psilocybin services in this state.
  • “Client” means an individual that is provided psilocybin services in this state.
  • “Psilocybin services” means services provided to a client before, during, and after the client’s consumption of a psilocybin product, including: (a) a preparation session; (b) an administration session; and (c) an integration session.
  • “Preparation session” means a meeting between a client and a psilocybin service facilitator that must occur before the client participates in an administration session.
  • “Administration session” means a session held at a psilocybin service center at which a client purchases, consumes, and experiences the effects of a psilocybin product under the supervision of a psilocybin service facilitator.
  • “Integration session” means a meeting between a client and a psilocybin service facilitator that may occur after the client completes an administration session.

Admittedly, some of those definitions are broad and open-ended in nature, and they need to be fleshed out by the OHA in the final rules.

However, there is another very important provision of the Act which must shape the OHA’s final rules.  Section 30(3) of the Act states that the OHA may not require a facilitator to have a degree from a university, college, post-secondary institution, or other institution of higher education.  A facilitator must:  (i) have a high school diploma or equivalent education; and (ii) complete an education and training program prescribed and approved by the OHA.  But that’s it.  No further education or training is required.

With that statutory prohibition in place, it would be unlawful for the OHA to promulgate rules that would require a facilitator to engage in the practice of some other licensed profession that, itself, would require a degree from an institution of higher learning.

Example:  An individual cannot practice psychology in Oregon without being licensed by the Oregon Board of Psychology.  And an individual cannot be licensed by the Oregon Board of Psychology without holding a degree from an institution of higher education.  Fair enough.  Now, what constitutes the practice of psychology?  A statutory definition provides the answer.  ORS 675.010(4) states in relevant part:

“Practice of psychology” means rendering or offering to render supervision, consultation, evaluation or therapy services to individuals, groups or organizations for the purpose of diagnosing or treating behavioral, emotional or mental disorders.  [Emphasis added.]

Consequently, the OHA cannot promulgate rules under the Act that would require a facilitator to diagnose or treat a client’s behavioral, emotional, or mental disorder.  To do so would be tantamount to requiring that every facilitator be a licensed psychologist, which in turn is tantamount to requiring that every facilitator hold a degree from an institution of higher learning.

The same analysis must take place for the practice of medicine (defined in ORS 677.085), the practice of naturopathic medicine (defined in ORS 685.010(4)), the practice of occupational therapy (defined in ORS 675.210(3)), and the practice of any other licensed profession that requires a degree from an institution of higher learning.

Back to our question:  What exactly are psilocybin services under the Act?  Well, after we strip away the components of every other conceivably relevant licensed professional practice, what are we left with?  Once again, the answer is in the definitions section of the Act, and it boils down to something quite simple and limited.

Recall the following from the definitions:

  • A “psilocybin service facilitator” facilitates the provision of psilocybin services.
  • “Psilocybin services” includes a preparation session, an administration session, and an integration session.
  • An “administration session” is a session at which a client purchases, consumes, and experiences the effects of a psilocybin product.

Given the above, I would phrase the answer to the question as follows:  Psilocybin services under the Act means the facilitation and supervision of a client’s psilocybin experience.  That’s it.  No required diagnoses.  No required treatments.  No required therapy.  No required attempts to cure anything.

This is consistent with one of the other most important provisions of the Act:  Section 8(4) of the Act states that the OHA may not require a client to be diagnosed with or have any particular medical condition as a condition to being provided psilocybin services.  This means that any client who is otherwise eligible can purchase and consume a psilocybin product under the Act for any reason, or for no particular reason at all.  Medical or mental health conditions may have something (or everything) to do with a client’s decision to seek out psilocybin services, but that won’t necessarily be the case (and it may not even be the case a majority of the time).

This fact illustrates the non-medical nature of the Act.

But we shouldn’t stop there.

Is the Act anti-medical in nature?  By that, I mean does the Act prohibit a facilitator who also holds some other professional license from practicing that other profession while at the same time providing psilocybin services to a client?  The answer is no, there is no such prohibition in the Act.

As an example, there is nothing in the Act that prevents an individual who holds both a facilitator license and a license to practice psychology from practicing psychology during a preparation session, an administration session, or an integration session.

Now, it is conceivable that the OHA could promulgate rules under the Act that outright prohibit this combining of licensed professions, but I doubt they will do that.  Similarly, it is possible that the Oregon Board of Psychology could prohibit licensed psychologists from practicing psychology in conjunction with providing psilocybin services.  But that would be up to the Oregon Board of Psychology.  And the same would go for any other conceivably relevant licensed profession and the board that regulates that profession.

The important thing to appreciate is that, from a rulemaking perspective under the Act, the OHA should focus only on those “bare bones facilitators” who hold a facilitator license and nothing else.  Detailed rules and ethical guidelines are already in place for all other licensed professions, and the OHA should let the boards of those professions grapple with the combination of those professions with the provision of psilocybin services.  The OHA’s rules for facilitators under the Act:  (i) should only focus on what a facilitator needs to do to safely facilitate and supervise a client’s experience; (ii) should assume that all facilitators are bare bones facilitators who are neither qualified nor legally permitted to practice another licensed profession; and (iii) should not require any facilitators to practice any other licensed profession.

To date, there have been many recommendations from various PAB subcommittees that don’t seem to understand the OHA’s statutory restrictions on this matter.  These recommendations have rightly led some to say that the PAB has been “over-medicalizing” the Act.

For example, certain PAB subcommittee members have suggested that:  (i) the client information form should contain numerous open-ended questions about the client’s entire medical history, mental history, trauma history (including childhood trauma), substance abuse history, and the like; (ii) based on the client’s responses, the facilitator should make a discretionary determination as to the client’s eligibility to participate in an administration session; and (iii) if the facilitator determines that the client is eligible, the facilitator should develop a tailored safety plan based on the client’s responses.  I suppose folks can disagree on this, but I don’t see how a bare bones facilitator would be qualified to do this in the first place, or how a bare bones facilitator would be able to do this without crossing the line and practicing some other licensed profession.

If an individual who is both a licensed facilitator and a licensed psychologist wants to ask a client 101 different open-ended questions about the client’s psychological history and then do something with that information during the provision of psilocybin services, and if all of that is just fine with the Oregon Board of Psychology, then the facilitator/psychologist should be free to do.  But the OHA cannot require the same of every facilitator.

Again, the Act is non-medical, but not anti-medical.  At its base level, the Act is not medical.  But in the hands of appropriately licensed medical professionals, the Act can be medical, at least in the sense that basic psilocybin services can be combined with other licensed medical and mental health services.

Overall, the Act is an extremely unique and innovative thing.  But this part of it shouldn’t be that confusing.  It’s all a question of scope of practice.  The Act has created a brand-new type of licensed professional called a psilocybin service facilitator.  This new profession has a relatively limited, narrow, and non-medical scope of practice, at least when the profession is being practiced in its pure stand-alone form, and not in combination with some other licensed profession.

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One of the known beneficial uses of psilocybin is as a palliative care tool for patients with advanced illness who suffer from anxiety and/or depression. A multitude of recent clinical trials shows the clear promise of psilocybin for this population suffering from these debilitating conditions. However, this drug is not presently legally available, as it is classified as a Schedule I drug, severely restricted and regulated by the federal Controlled Substances Act. Accordingly, it cannot be prescribed by a physician and it is not legally accessible to those who might benefit from it as a therapeutic treatment.

Access Pursuant to the Oregon Psilocybin Services Act

Oregon’s Psilocybin Services Act(“PSA”), adopted via initiative in November 2020, makes therapeutic use of psilocybin legal under Oregon state law. Adult Oregonians will be able to access psilocybin therapy under the PSA beginning in January 2023; patients with advanced illness are among those who may benefit from this therapy.

The PSA sets out detailed requirements specifying who will be permitted to provide psilocybin therapy and where such therapy can take place. The provider of the therapy must be a licensed “facilitator” pursuant to the statute. Recommendations for the training required of such facilitators are being developed now by a Psilocybin Advisory Board established by the PSA. The Oregon Health Authority will receive these recommendations and adopt rules regarding requisite training, examination, and licensing of facilitators.  Other than taking the training the OHA determines necessary and passing the required exam, facilitators need not have any other education or credential beyond a high school diploma to be certified as a facilitator.

Certainly, it is likely that some who pursue a facilitator license will have advanced education and/or credentials in a health care specialty. It is likely that some who are palliative care nurses, end-of-life care doulas, social workers, mental health counselors, and/or physicians will become licensed facilitators pursuant to the PSA.

Administration of the psilocybin and the experiencing of its effects must occur in a licensed “facilitation center”. A subsequent “integration session” must be offered to the client; however, participation in the integration session is not mandatory and this session need not be held at a facilitation center.

Patients with advanced illness who could benefit from psilocybin therapy, and who are able to visit a facilitation center, will be able to receive such therapy at a licensed center. As noted, the integration session could be conducted elsewhere, possibly at the patient’s home or at a clinician’s office. For patients with advanced illness, it would likely be desirable to seek psilocybin therapy from a facilitator knowledgeable in providing care to medically fragile patients with advanced illness. Such providers must of course be aware that while psilocybin therapy under Oregon’s new PSA law will be legal for state law purposes, psilocybin remains illegal under federal law.  It is possible that a form of “cooperative federalism” will arise with regard to psilocybin therapy in Oregon. This is a policy where the federal government, the DEA, will refrain from taking prosecutorial action if state law permits, regulates, and carefully controls the use of a drug. The shelter provided by this approach depends on the policy of the U.S. Department of Justice, which can change as the political winds or officeholder changes—as occurred in the case of cannabis.

Access to Psilocybin Therapy Pursuant to Right to Try Laws

In recent years “Right to Try” laws have been adopted by a supermajority of states, including Oregon, and the Federal Congress. These laws recognize that patients with advanced illness ought to be able to access certain investigational drugs for therapeutic use before completion of later-stage clinical trials and the potentially long process of rescheduling. Psilocybin meets the requisites of RTT laws to be deemed an ‘eligible investigational drug’.  Under the letter and spirit of these laws, it is intended to be available for this population of patients while still under investigation. Litigation to compel DEA to respect RTT laws and allow access to psilocybin for therapeutic use is pending before the Ninth Circuit Court of Appeals. If Petitioners prevail in this landmark case, access to psilocybin for patients with advanced illness will become available, protected by both state and federal law. Under this scenario, none of the requirements of the PSA would be applicable. Psilocybin therapy would likely be accessed through the patient’s palliative care physician who would obtain a form of permission from the DEA to obtain this investigational drug from a manufacturer. The therapy could take place wherever most convenient to the patient in light of their advanced illness, for example, if the patient were receiving hospice services at home, the therapy could be provided in the patient’s home, or at the office of the palliative care provider.


There is tremendous interest in the benefits of psilocybin for the relief of a variety of distressing mental health conditions, including anxiety and depression in patients with advanced illness. Oregon has stepped forward in enacting the nation’s first psilocybin therapy law, which will make such therapy legal under a heavily regulatory state law regime beginning in 2023; federal exposure will remain unless a policy of nonenforcement is adopted by the US DOJ. Right to Try laws may compel DEA to allow access sooner and more widely across the nation.



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There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including terminally ill patients suffering with anxiety and depression. Until recently, psychedelic substances have been accessible only in the illicit market and are illegal under federal and state to manufacture, distribute, or possess. These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application. As such, no one invested in this area or required legal services, outside of the criminal context.

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Our expertise includes:

We have a deep understanding of the financing options available to businesses, including simple unsecured loans, asset-backed financing, convertible debt, common and preferred equity, crowdfunding and various other structures.  We work closely with our clients to understand their business and financing needs, ensure they are prepared to approach investors and choose the right partners, structure and negotiate terms, navigate the due diligence process and successfully close the deal.



Emerge attorneys have represented businesses in the alcohol and beverage industry, including wineries, breweries, distilleries, restaurants, bars, movie theaters, golf courses, and gas stations.  We can help you vet new locations, acquire existing locations, and apply for the appropriate liquor license.  We also provide training to comply with applicable rules and regulations, prepare operating procedures, submit renewals, and keep clients protected in the event of any potential violations or administrative hearings.


Emerge Law Group is highly experienced in the cannabis industry.  We have helped many clients obtain state licenses and local permits to operate cannabis businesses throughout California, Oregon, and Washington.  We regularly help clients with:

Cannabis laws and rules are also regularly changing.  Members of our team are dedicated to attending legislative hearings, state agency and local city and county meetings to stay up-to-date on any new changes and how to adjust to any new changes.

See our Cannabis Industry page for more information.


Emerge Law Group is a leader in the psychedelics industry.  There is tremendous excitement about the potential for psychedelic drugs to benefit a wide variety of populations, including veterans struggling with PTSD and terminally ill patients suffering with anxiety and depression.  Until recently, psychedelic substances have been accessible only in the underground; they are illegal under state and federal law to manufacture, distribute, or possess.  These substances have, since 1970, been treated as having no legitimate medical use, and no commercial application.  As such, businesses have not invested in this area or required legal services, outside of the criminal context.

Today, psychedelics are proceeding toward legalization on multiple paths.  Researchers in a multitude of clinical studies are proving the medical safety and efficacy of these medicines, with the objective of changing the treatment of these substances under the federal Controlled Substances Act, opening legal access to them.  Private and public companies are now actively raising money to develop intellectual property and capitalize on the market opportunities associated with psychedelic drugs.  Opportunities to be early actors in this new arena are tremendous.

See our Psychedelics Practice Group page for more information.


Our business transactions team is made up of highly experienced transactional attorneys who have practiced at large law and accounting firms, worked as in-house counsel for public companies and investment banks, and owned and operated start-up companies. We understand complex legal matters and provide high quality legal services in a cost-effective manner.  Our clients value our experience, knowledge and judgment.


Our team routinely advises clients regarding:


Emerge attorneys also advise on-going concerns with: