New York and Washington Legislatures Consider Legalizing Psilocybin

Legislators in New York and Washington state recently introduced bills to legalize psilocybin services. While Washington’s proposed legislation tracks Oregon’s “adult use” model, New York follows a “medicinal” model. This blog post summarizes the legislation in both states and explains the differences and similarities in adult use versus medicinal models of psilocybin legalization.

New York: the “Medicinal” Approach

Assembly Bill 8569 would legalize psilocybin services only for medical purposes and require that a patient is “certified” before receiving treatment. A patient can be certified if they are a New York resident or are receiving medical care in New York, under the continuing care of a practitioner who believes the patient is likely to receive therapeutic or palliative benefit from psilocybin, and the patient is diagnosed with any of the following:

Cancer, HIV/AIDS, ALS, Parkinson’s disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s disease, PTSD, chronic pain, substance use disorder, Alzheimer’s, muscular dystrophy, dystonia, rheumatoid arthritis, autism, or any other condition certified by the patient’s practitioner.

Practitioners would need a new psilocybin-license before they could certify patients for treatment. To get one, a practitioner would need to complete a two-hour course, the details of which would be determined by the New York State Department of Health. Practitioners would certify patients for a specific period of time, or for the entire life of the patient. Once certified, a patient (or their caregiver) would get a registry card allowing them to receive psilocybin.

Psilocybin treatment would only occur indoors at a licensed psilocybin service center under the supervision of a licensed facilitator. Individuals under the age of 18 could receive psilocybin services if they are a certified patient and with the approval of the person responsible for making their health care decisions.

New York’s legislation includes a psilocybin services grant program that provides financial assistance to veterans and first responders who want to access psilocybin services. Legalization of psilocybin is often marketed to help people suffering from post-traumatic stress disorder (PTSD), and this grant program would help veterans and first responders access psilocybin treatment.

Washington: the “Adult Use” Approach

The Washington Psilocybin Services Wellness and opportunity Act, Senate Bill 5660, would legalize psilocybin services for any individual over the age of 21, and unlike the legislation proposed in New York, SB 5660 expressly states that psilocybin services “shall not constitute medical diagnosis or treatment.” While not recreational in the sense of cannabis where one can go to a dispensary to buy product, Washington’s proposed psilocybin program is accessible to any one over the age of 21 who passes a screening process. Clients wouldn’t need a medical diagnosis to receive psilocybin, and could participate for personal growth, religious experience, or even just for fun.

Like Oregon’s psilocybin program, Washington will issue licenses for (1) manufacturing, (2) service centers, (3) facilitators, and (4) testing. A person could hold both a manufacturing and service center license at the same premises, allowing for holistic, vertically integrated service centers where products are grown onsite. There is a two-year state residency requirement for licensees, but as discussed briefly in one of our earlier blog posts, such a requirement may be vulnerable to a legal challenge under the Dormant Commerce Clause.

Like Oregon’s psilocybin program, Washington’s legislation would allow its state health authority to regulate the production of psilocybin to limit supply and ensure there isn’t a product surplus. Washington’s legislation also seeks to stop overproduction by banning individuals from having a financial interest in more than one psilocybin manufacturing license.

Medicinal vs. Adult Use

Advocates supporting the adult use approach (OR and WA) will argue that limiting psilocybin to a medical context (NY) inhibits access and limits psilocybin’s potential in bettering the lives of everyone, and not just medical patients or those suffering from terminal illness.

However, one possible pro of New York’s medical approach is the focus on research. New York’s psilocybin program would create research licensees that permit a licensee to produce, process, purchase and/or possess psilocybin for the following research purposes: (a) to test chemical potency and composition levels; (b) to conduct clinical investigations of psilocybin-derived drug product; (c) to conduct research on the efficacy and safety of administering psilocybin as part of medical treatment; and (d) to conduct genomic or agricultural research. A psilocybin research licensee could also contract with a university or hospital within the University of New York system and conduct joint research projects.

Shared Traits of Each Approach

Oregon, New York, and Washington’s psilocybin legislation all focus on exploring psilocybin’s potential to address the ongoing mental health crisis in the United States, which is only getting worse due to the COVID-19 pandemic. All the programs create an “advisory board” that will provide policy recommendations for each state’s health authority to consider when promulgating rules and regulations. There is also a year-plus runway in each state before service centers become operational to provide time to create appropriate regulations.

The 3-step process for receiving psilocybin services is fairly uniform in each of the three states:

1. Preparation session where a client meets with their facilitator to prepare for their psilocybin experience
2. Administration session where the client receives psilocybin under the supervision of a psilocybin service facilitator, and
3. Integration session following psilocybin services where the client meets with a facilitator to discuss their experience.

The model for training facilitators is also uniform, with both the medical and adult use models focusing on training skills that are affirming, nonjudgmental, and “nondirective.”

All three policies limit the advertising of psilocybin products. New York’s bill authorizes its health agency to make rules and regulations restricting the advertising and marketing of medicinal psilocybin. Both Oregon and Washington ban outright public advertising of psilocybin products, and task their health agency with adopting rules regulating and prohibiting advertisements of psilocybin services that are appealing to minors, promote illegal activity, or otherwise present a risk to public health.

Equity is a shared focus, but to different extents. In Washington, a social equity program would help individuals and businesses that qualify as “social opportunity” applicants. In New York, the chief equity officer of the state’s health department will work to place service centers in underserved areas of the state. These additional sites are intended to reflect the demographics of the state and represent communities disproportionately impacted by psilocybin prohibition. While Measure 109 in Oregon did not include major equity provisions, the Oregon Psilocybin Advisory Board has established the Equity Subcommittee to provide recommendations for consideration during rule making.

Conclusion

Analyzing New York and Washington’s psilocybin legislation shows two different frameworks for legalizing psilocybin. An adult use model where access is available to anyone over 21 who passes screening, and a medicinal model that more closely tracks the path of cannabis legalization.