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Oregon’s psilocybin program violates the Americans with Disabilities Act because it does not allow people with mobility issues or in end-of-life care to access services in their home, a group of attorneys contend in a Notice of Tort Claim.
They sent the notice to Angela Allbee, manager of the Psilocybin Services Section, in mid-March, saying their three clients intend to “seek a claim for declaratory judgment declaring that OHA’s policy of refusing to allow psilocybin service facilitators to grant reasonable accommodations to disabled patients violates the” ADA.
The attorneys who signed the notice are Scott Aldworth of Kell, Alterman & Runstein LLP; Holly Martinez of Perkins Coie LLP and Kathryn Tucker of the National Psychedelics Association.
Oregon voters passed Measure 109 in 2020, allowing regulated psychedelics services. The program launched last year, with licensed facilitators supervising psilocybin trips in licensed service centers only.
Some adults, however, cannot physically get to a service center, including those who have paralysis or other injuries or disabilities or are in hospice care and are home-bound, Martinez said.
“Some of the folks we’re chatting with are in a stage of life where their time is limited,” she said. “People with disabilities are often disregarded. It’s upsetting to us when a statute is drafted, that no thought is given to people with disabilities, no carve-out written into the rules for reasonable accommodations.”
Although Oregon’s program is not medically based, studies have shown that psilocybin can be effective in treating a variety of mental health conditions, including depression, anxiety, PTSD and addiction, the attorneys noted.
The attorneys filed the notice on behalf of Jay Cusker, a psilocybin facilitator and hospice bereavement counselor who works with clients with advanced terminal illness; Dr. Yolanda Suarez, a physician specializing in terminally ill patients; and Alison Grayson, a licensed facilitator and hospice provider.
OHA declined to comment on pending litigation.
Cusker and Grayson asked OHA for guidance as to whether they could provide reasonable accommodations to patients who can’t travel to service centers without jeopardizing their facilitator licenses, according to the tort claim notice.
OHA took the position that under the psilocybin rules, “there is no legal pathway to make accommodations for psilocybin to be consumed outside of a licensed service center and that the statute would need to be amended for accommodations to be permitted,” the attorneys said.
“OHA’s position is legally incorrect,” they said. Both federal and state law make it unlawful for governments to exclude an individual from public programs or to be subjected to discrimination, they said.
Allowing in-home accommodations would not result in an undue burden to the state or “fundamentally alter the nature of the program,” they said.
“We think we can outline rules to allow for accommodation,” Martinez said.
Tort claim notices are a preliminary step before litigation, but Martinez said she hopes OHA will collaborate on making some changes to allow for ADA accommodations.