New Ruling Moves Oregon Closer to Legal In-Home Psilocybin Use

Plaintiffs’ argument that access to in-home psilocybin services for those with disabilities is required under the ADA survives motion to dismiss.

A lawsuit seeking the development of in-home psilocybin services for individuals with disabilities in Oregon will continue after a U.S. district court denied a motion to dismiss on May 30. The case could set an important precedent for future drug laws and accessibility for all Americans, including those with disabilities.

In 2020, 56 percent of Oregonians voted in favor of the Oregon Psilocybin Services Act (Measure 109), which directed the Oregon Health Authority to license and regulate psilocybin products and services for individuals aged 21 and older. While a handful of cities in the U.S. had previously decriminalized psilocybin, Oregon was the first state to both decriminalize and create a legal regulatory framework for its supervised use. 

After two years of rule drafting, the OHA began accepting applications in 2023 for licensed psilocybin service centers, which are regulated facilities where psilocybin can be administered. Rather than focus on selling a product, service centers are geared toward health and wellness and are designed to offer support before, during, and after psilocybin use by licensed service facilitators. This model opened up psilocybin use for most Oregon residents but makes accessing psilocybin services impossible for individuals unable to leave home because of a disability. To fix this oversight in the law, four practitioners licensed by the state to guide people through psilocybin experiences have alleged that the current OHA process fails to reasonably accommodate those with disabilities as required under the Americans with Disabilities Act (ADA). 

Cusker et al v. OHA was filed after the OHA denied the plaintiffs' request for a process to be developed for in-home psilocybin services to people with disabilities who are unable to visit service centers. In response to the request, state attorneys argued that "there is no legal pathway to make accommodations for psilocybin to be consumed outside of a licensed service center" and that Measure 109 "would need to be amended for accommodations to be permitted." 

Although the measure only allows the use of psilocybin under facilitator supervision at a service center—which has to comply with specific location requirements, including stipulations prohibiting a center from being located within "the limits of an incorporated city or town" or in areas "zoned exclusively for residential use"—others believe the OHA has the authority and flexibility needed to interpret the language consistent with ADA requirements. But the OHA has declined to address the issue through rule making. 

The plaintiffs filed the lawsuit in the U.S. District Court for the District of Oregon since the claim revolves around the OHA violating the ADA, a federal law. While psilocybin was decriminalized and legally regulated under Oregon law, it remains classified as a Schedule I controlled substance under the federal Controlled Substances Act. 

The OHA filed a motion to dismiss the case, arguing that the federal court lacked jurisdiction to decide the case because plaintiffs were asking the court to violate both state and federal law. The federal court would have to order the OHA to break federal law if it required the agency to produce, possess, or administer a Schedule I drug. The OHA also argued that the court would have to order a violation of Oregon's Controlled Substances Act if it required the agency to dispense psilocybin outside of a service center. 

Ultimately, the court denied the OHA's motion to dismiss, relying on case law involving a non-ADA-compliant marijuana dispensary. In Smith v. 116 S Market LLC (2020), Michael Smith, who is paraplegic, encountered difficulty accessing a dispensary due to a lack of accessible parking spaces, uneven ground between the parking lot and entry, and a noncompliant ramp. The 9th Circuit Court of Appeals ruled in favor of Smith, granting him $4,000 in statutory damages for each encounter, under the rationale that the decision did not force the dispensary owner to distribute a Schedule I drug but merely required ADA compliance—which does not violate federal law. By adopting this reasoning, Cusker will be able to move forward.