The Horizons Northwest psychedelic conference just wrapped following an amazing series of events bringing together many of the brightest and most optimistic minds in the psychedelic movement. Oregon is at the center of the burgeoning psychedelic renaissance, as Measure 109 (passed by voters in 2020) will create the first state-sanctioned psilocybin program with license applications opening in 2023. Shout outs are very much due to sponsoring non-profit organizations dedicated to ensuring an accessible and equitable program, with special praise due to the Alma Institute and Sheri Eckert Foundation.
The event was an amazing opportunity for advocates across the country and the world to better understand the Oregon approach to psilocybin services. Notwithstanding, many are still confused by Measure 109 and there are many myths circulating about it. Below are some common misconceptions regarding the Oregon Psilocybin Services Act, and clarification about how the program will work:
Myth 1: Cost of receiving services and entering the market are completely unaffordable.
- Psilocybin services are, unfortunately, going to be more expensive than other therapeutic options, at least at the beginning. Federal prohibition is the real culprit, as it forecloses the availability of insurance providers to cover the cost of services, though they could possibly cover some non-fungi touching aspects of services such as preparation and integration sessions.
- Lack of insurance and other problems posed by federal prohibition may remediate more quickly than most expect, as the Biden administration has indicted a strong interest in creating some form of federally-sanctioned psilocybin services by the end of his first term. Psilocybin therapy is also receiving strong support from Republicans, meaning we may see the feds legalize (or reschedule) psilocybin before marijuana.
- Costs of services will also certainly fall once businesses are licensed and the industry develops. That is exactly what we saw with cannabis and underscores the ongoing need for facilitators to organize and bargain for favorable employment terms with service centers to strike a correct balance between working conditions and cost.
- Speaking of which, one of the more controversial aspects of Measure 109, that facilitators need not possess a medical degree, is one of the most equitable aspects of the program as it increases the number of potential facilitators (thereby decreasing costs) and ensures the program does not develop solely through the perspective of western medicine.
Myth 2: Medical Professionals cannot participate in the program.
- This is an area of law that is still not fully tested, and the Oregon medical boards have so far not opined on the intersection of licensed medical professionals acting as psilocybin facilitators. However, OHA in their proposed rule directly addresses this issue by ensuring facilitators stay within their scope of practice: See OAR 333-333-5130:
- A facilitator shall not engage in any conduct that requires additional professional licensure while providing psilocybin services to clients, including but not limited to diagnosing and treating physical or mental health conditions.
- If a facilitator holds a professional license in another field, the facilitator shall not exercise the privileges of that license while providing psilocybin services to client.
Myth 3: No reasonable businessperson would dare get licensed under Measure 109 due to the lack of insurance.
- Like psilocybin, cannabis is a schedule I substance, and yet, cannabis businesses operating under state law obtain insurance all the time. In fact, our firm is aware of insurance professionals who are working with their underwriters to prepare and serve the Measure 109 market. If you would like to discuss or have other regulatory questions, give us a call 😊.
Myth 4: Section 280E of the IRC makes it impossible for businesses to make a profit or receive non-profit status.
- ICR 280E does present an immediate burden on the financial return of perspective psilocybin business, but the cannabis industry faces the same problems and there already exist many million- and billion-dollar businesses in that market. Additionally, the prospect of federal legalization, or descheduling, means that 280E could be a thing of the past for psilocybin in the not-so-distant future.
- Business licensed under measure 109 can receive non-profit status at the state level notwithstanding federal prohibition, though it may create barriers for fungi-touching business seeking to obtain federal 501(c)(3) status. However, ancillary business could potentially get 501(c)(3) status, and some enterprises supporting the burgeoning industry are currently enjoying the designation and all its benefits.
Myth 5: The State of Oregon is putting psilocybin clients at risk by offering federally illegal services through businesses that may prove unprofitable.
- There is no indication that the federal government will take enforcement action against businesses and clients acting in accordance with the Measure 109 framework. Even in the absence of a non-enforcement declaration like the Cole memo, the bipartisan interest in expanding psilocybin services means there is likely little chance of criminal liability for compliant businesses and consumers.
- We will likely see some psilocybin businesses fail, but that is not a unique feature of M109 businesses: according to LendingTree.Com, “18.4% of private sector businesses in the U.S. fail within the first year. After five years, 49.7% have faltered, while after 10 years, 65.5% of businesses have failed.” The fact the some will fail does not mean that passionate and dedicated entrepreneurs will not create successful businesses that provide much needed access to psilocybin services.
The people of Oregon voted to pass Measure 109. The United States is in the midst of a mental health crisis, and Oregon ranks near the bottom of the county in terms of access to mental health care and drug treatment services. While Measure 109 is not a panacea that will make our mental health crisis vanish, the people wanted a solution, and an alternative to the status quo that is currently failing.
Yes, there will be affordability and equity issues under Measure 109 because of continued federal prohibition and the fact no one has tried an approach like Oregon. However, I believe that much of the uncertainty about Measure 109 businesses will recede once people reframe their perspective of what a successful program looks like and who stands to benefit the most.
We need to start thinking of the veterans suffering from PTSD who can receive a new lease on life by receiving services. We need to start thinking of people suffering from substance abuse who have no hope when conventional treatment fails. We need to start thinking of those suffering from end-of-life anxiety facing the grave uncertainty that we must all one day face as our time on earth nears its inevitable conclusion. Once we think of how psilocybin can benefit these people, support their families, and provide society with an alternative means of addressing mental health, then we can understand how far we have come and work together to finish the work we still need to do.