SJC/SB 219
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AN ACT
RELATING TO HEALTH CARE; ENACTING THE MEDICAL PSILOCYBIN ACT;
ALLOWING THE USE OF PSILOCYBIN IN AN APPROVED SETTING TO
TREAT QUALIFIED MEDICAL CONDITIONS; CREATING AN ADVISORY
BOARD; PROVIDING POWERS AND DUTIES; AMENDING THE CONTROLLED
SUBSTANCES ACT TO REMOVE PSILOCYBIN AND PSILOCIN FROM THE
SCHEDULE FOR PURPOSES OF QUALIFIED MEDICAL TREATMENT;
PROVIDING A GROSS RECEIPTS TAX DEDUCTION FOR MEDICAL
PSILOCYBIN; PRESCRIBING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. SHORT TITLE.--Sections 1 through 11 of this
act may be cited as the "Medical Psilocybin Act".
SECTION 2. PURPOSE OF ACT.--The purpose of the Medical
Psilocybin Act is to allow the beneficial use of psilocybin
in a regulated system for alleviating qualified medical
conditions.
SECTION 3. DEFINITIONS.--As used in the Medical
Psilocybin Act:
A. "board" means the medical psilocybin advisory
board;
B. "clinician" means an approved health care
provider licensed in New Mexico who holds a permit from the
department to provide medical services to qualified patients;
C. "department" means the department of health; SJC/SB 219
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D. "medical services" means services provided to
a patient in an approved setting before, during and after the
ingestion of psilocybin and includes a preparation session,
an administration session and an integration session;
E. "producer" means a person who has a permit from
the department to grow and harvest or prepare psilocybin from
psilocybin-producing mushrooms, including to compound,
convert, process or manufacture psilocybin products directly
or indirectly from psilocybin mushrooms and to package or
repackage or label or relabel the products;
F. "program" means the medical use of psilocybin
program;
G. "psilocybin" means the naturally occurring
psychedelic compound 4-phosphoryloxy-N,N-dimethyltryptamine,
also known as 4-PO-DMT, and its pharmacologically active
metabolite psilocin, 4-hydroxy-N,N-dimethyltryptamine, found
in certain mushrooms, but does not include synthetic or
synthetic analogs of psilocybin;
H. "qualified patient" means a patient whose
clinician has judged the patient to be a medically
appropriate candidate for the use of medical psilocybin based
on being diagnosed with a qualifying condition;
I. "qualifying condition" includes:
(1) major treatment-resistant depression;
(2) posttraumatic stress disorder; SJC/SB 219
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(3) substance use disorders;
(4) end-of-life care; and
(5) other conditions approved by the
department; and
J. "secretary" means the secretary of health.
SECTION 4. APPLICABILITY.--Federal food and drug
administration-approved products that contain psilocybin
shall be exempt from the Medical Psilocybin Act, with the
exception that such products shall be authorized for use:
A. in any research conducted by state research
universities or health care providers pursuant to grants
awarded through the medical psilocybin research fund; and
B. by qualified patients whose treatments may be
funded through the medical psilocybin treatment equity fund.
SECTION 5. EXEMPTION FROM CRIMINAL AND CIVIL PENALTIES
FOR THE MEDICAL USE OF PSILOCYBIN.--
A. A producer, clinician or qualified patient
shall not be subject to arrest, prosecution or penalty for
participating in the program.
B. The following conduct is lawful and shall not
constitute grounds for detention, search or arrest of a
person or for a violation of probation or parole, and
psilocybin that relates to the conduct is not contraband or
subject to seizure or forfeiture pursuant to the Controlled
Substances Act or the Forfeiture Act: SJC/SB 219
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(1) a producer or clinician possessing or
transporting not more than an adequate supply of psilocybin
for medical purposes as defined by department rule; and
(2) a clinician administering or a qualified
patient taking psilocybin in an approved setting in
accordance with the Medical Psilocybin Act or rules
promulgated in accordance with that act.
C. A clinician shall not be subject to arrest or
prosecution or denied any right or privilege for recommending
the program or providing medical services authorized in the
Medical Psilocybin Act.
D. A person shall not be subject to arrest or
prosecution for a psilocybin-related offense for simply being
in the presence of the medical use of psilocybin as allowed
under the provisions of the Medical Psilocybin Act.
E. The Medical Psilocybin Act does not apply to
federal food and drug administration-approved clinical
trials.
SECTION 6. PROHIBITIONS, RESTRICTIONS AND LIMITATIONS
ON THE USE OF PSILOCYBIN--CRIMINAL PENALTIES.--
A. Participation in the program by a producer,
clinician or qualified patient does not relieve the producer,
clinician or qualified patient from:
(1) criminal prosecution or civil penalties
for activities not authorized in the Medical Psilocybin Act; SJC/SB 219
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or
(2) liability for damages or criminal
prosecution arising out of the operation of a motor vehicle
if driving while under the influence of psilocybin.
B. A person who makes a fraudulent representation
to a law enforcement officer about the person's participation
in the program to avoid arrest or prosecution for a
psilocybin-related offense is guilty of a petty misdemeanor
and shall be sentenced as provided in Section 31-19-1
NMSA 1978.
SECTION 7. DEPARTMENT--PROGRAM.--
A. The "medical use of psilocybin program" is
created in the department. In developing the program, the
department shall establish:
(1) appropriate qualifying conditions for
qualified patients;
(2) necessary initial and ongoing training
for producers and clinicians;
(3) treatment protocols, including patient
selection criteria, medical service standards, dosage
standards and approved settings for administration of
psilocybin to patients;
(4) safety protocols for producing
psilocybin from mushrooms, transporting, storing and handling
psilocybin and treating patients; SJC/SB 219
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(5) other best practices for producers and
clinicians;
(6) requirements for data collection to
evaluate the program and the use of best practices by
producers and clinicians; and
(7) other requirements, restrictions and
limitations promulgated by the department to ensure an
efficacious program.
B. The department shall monitor producers and
clinicians to ensure compliance with the Medical Psilocybin
Act and rules promulgated in accordance with that act.
C. The department shall collaborate with the
board, state higher education institutions and health care
providers to collect and analyze data to develop best
practices, including best settings for administration of
psilocybin, and, by December 31, 2027, implement the program.
When developing the program, the department shall engage in
tribal consultation as provided in the State-Tribal
Collaboration Act.
SECTION 8. ADVISORY BOARD CREATED--DUTIES.--
A. The secretary shall establish the "medical
psilocybin advisory board", consisting of nine members who
are knowledgeable about the medical use of psilocybin. At
least one member shall be an enrolled member of an Indian
nation, tribe or pueblo located wholly or partially in SJC/SB 219
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New Mexico; one member shall be licensed to provide
behavioral health care services in New Mexico; one member
shall be a mental or behavioral health equity advocate;
one member shall be a representative of the health care
authority; and at least one member shall be a veteran of
the United States armed forces. A majority of the members
constitutes a quorum, and a quorum of the members present and
a majority vote are needed to take any action.
B. The board shall:
(1) review and recommend to the department
for approval medical conditions that may benefit from the
medical use of psilocybin;
(2) accept and review petitions to add
medical conditions to the list of medical conditions that
qualify for the medical use of psilocybin;
(3) convene at least twice per year to
conduct public hearings and to evaluate petitions, which
shall be maintained as confidential personal health
information;
(4) recommend patient qualifications;
(5) recommend formulation or preparation
rules and dosage standards for psilocybin; and
(6) assist the department in establishing,
monitoring and evaluating best practices for producers and
clinicians. SJC/SB 219
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SECTION 9. ASSESSMENT REPORTING.--The department shall
promulgate rules for the collection of data from producers,
clinicians and qualified patients as a means to evaluate the
efficacy of the medical use of psilocybin and publish an
annual assessment of the program. The assessment shall
consider the needs of qualified patients who live in rural
areas, federal subsidized housing or on reservations of
New Mexico Indian nations, tribes or pueblos, as long as
the qualified patient's place of residence is wholly within
the exterior boundaries of the state. Data shall be reported
in such a way that an individual qualified patient cannot be
identified.
SECTION 10. PERSONS UNDER STATE SUPERVISION--
PROTECTIONS.--A person who is serving a period of probation
or parole or who is in the custody or under the supervision
of the state or a local government pending trial as part of a
community supervision program shall not be penalized for
participation in the program.
SECTION 11. FUNDS--CREATED.--
A. The "medical psilocybin treatment equity fund"
is created as a nonreverting fund in the state treasury. The
fund consists of appropriations, gifts, grants and donations.
The fund shall be used to fund treatments of qualified
patients who meet income requirements determined by rule of
the department. The department shall administer the fund, SJC/SB 219
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and money in the fund is subject to appropriation by the
legislature. Expenditures from the fund shall be by warrants
signed by the secretary of finance and administration on
vouchers signed by the secretary of health or the secretary's
authorized representative.
B. The "medical psilocybin research fund" is
created as a nonreverting fund in the state treasury. The
fund consists of appropriations, gifts, grants and donations.
The fund shall be used to provide grants to state research
universities and health care providers that are studying any
facet of the medical use of psilocybin. The department shall
administer the fund, and money in the fund is subject to
appropriation by the legislature. Expenditures from the fund
shall be by warrants signed by the secretary of finance and
administration on vouchers signed by the secretary of health
or the secretary's authorized representative.
SECTION 12. Section 7-9-73.2 NMSA 1978 (being
Laws 1998, Chapter 95, Section 2 and Laws 1998, Chapter 99,
Section 4, as amended) is amended to read:
"7-9-73.2. DEDUCTION--GROSS RECEIPTS TAX AND
GOVERNMENTAL GROSS RECEIPTS TAX--PRESCRIPTION DRUGS--OXYGEN--
CANNABIS--PSILOCYBIN.--
A. Receipts from the sale of prescription drugs
and oxygen and oxygen services provided by a licensed
medicare durable medical equipment provider and cannabis SJC/SB 219
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products that are sold in accordance with the Lynn and Erin
Compassionate Use Act and psilocybin products and medical
care that are sold in accordance with the Medical Psilocybin
Act may be deducted from gross receipts and governmental
gross receipts.
B. For the purposes of this section, "prescription
drugs" means insulin and substances that are:
(1) dispensed by or under the supervision
of a licensed pharmacist or by a physician or other person
authorized under state law to do so;
(2) prescribed for a specified person by a
person authorized under state law to prescribe the substance;
and
(3) subject to the restrictions on sale
contained in Subparagraph 1 of Subsection (b) of 21
USCA 353."
SECTION 13. Section 30-31-6 NMSA 1978 (being Laws 1972,
Chapter 84, Section 6, as amended) is amended to read:
"30-31-6. SCHEDULE I.--The following controlled
substances are included in Schedule I:
A. any of the following opiates, including their
isomers, esters, ethers, salts and salts of isomers, esters
and ethers, unless specifically exempted, whenever the
existence of these isomers, esters, ethers and salts is
possible within the specific chemical designation: SJC/SB 219
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(1) acetylmethadol;
(2) allylprodine;
(3) alphacetylmethadol;
(4) alphameprodine;
(5) alphamethadol;
(6) benzethidine;
(7) betacetylmethadol;
(8) betameprodine;
(9) betamethadol;
(10) betaprodine;
(11) clonitazene;
(12) dextromoramide;
(13) dextrorphan;
(14) diampromide;
(15) diethylthiambutene;
(16) dimenoxadol;
(17) dimepheptanol;
(18) dimethylthiambutene;
(19) dioxaphetyl butyrate;
(20) dipipanone;
(21) ethylmethylthiambutene;
(22) etonitazene;
(23) etoxeridine;
(24) furethidine;
(25) hydroxypethidine; SJC/SB 219
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(26) ketobemidone;
(27) levomoramide;
(28) levophenacylmorphan;
(29) morpheridine;
(30) noracymethadol;
(31) norlevorphanol;
(32) normethadone;
(33) norpipanone;
(34) phenadoxone;
(35) phenampromide;
(36) phenomorphan;
(37) phenoperidine;
(38) piritramide;
(39) proheptazine;
(40) properidine;
(41) racemoramide; and
(42) trimeperidine;
B. any of the following opium derivatives, their
salts, isomers and salts of isomers, unless specifically
exempted, whenever the existence of these salts, isomers and
salts of isomers is possible within the specific chemical
designation:
(1) acetorphine;
(2) acetyldihydrocodeine;
(3) benzylmorphine; SJC/SB 219
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(4) codeine methylbromide;
(5) codeine-N-oxide;
(6) cyprenorphine;
(7) desomorphine;
(8) dihydromorphine;
(9) etorphine;
(10) heroin;
(11) hydromorphinol;
(12) methyldesorphine;
(13) methyldihydromorphine;
(14) morphine methylbromide;
(15) morphine methylsulfonate;
(16) morphine-N-oxide;
(17) myrophine;
(18) nicocodeine;
(19) nicomorphine;
(20) normorphine;
(21) pholcodine; and
(22) thebacon;
C. any material, compound, mixture or preparation
that contains any quantity of the following hallucinogenic
substances, their salts, isomers and salts of isomers, unless
specifically exempted, whenever the existence of these salts,
isomers and salts of isomers is possible within the specific
chemical designation: SJC/SB 219
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(1) 3,4-methylenedioxy amphetamine;
(2) 5-methoxy-3,4-methylenedioxy
amphetamine;
(3) 3,4,5-trimethoxy amphetamine;
(4) bufotenine;
(5) diethyltryptamine;
(6) dimethyltryptamine;
(7) 4-methyl-2,5-dimethoxy amphetamine;
(8) ibogaine;
(9) lysergic acid diethylamide;
(10) mescaline;
(11) peyote, except as otherwise provided in
the Controlled Substances Act;
(12) N-ethyl-3-piperidyl benzilate;
(13) N-methyl-3-piperidyl benzilate;
(14) psilocybin, except as provided
otherwise in the Controlled Substances Act and the Medical
Psilocybin Act;
(15) psilocin, except as provided otherwise
in the Controlled Substances Act and the Medical Psilocybin
Act;
(16) synthetic cannabinoids, including:
(a) 1-[2-(4-(morpholinyl)ethyl]
-3-(1-naphthoyl)indole;
(b) 1-butyl-3-(1-napthoyl)indole; SJC/SB 219
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(c) 1-hexyl-3-(1-naphthoyl)indole;
(d) 1-pentyl-3-(1-naphthoyl)indole;
(e) 1-pentyl-3-(2-methoxyphenylacetyl)
indole;
(f) cannabicyclohexanol (CP 47, 497 and
homologues: 5-(1,1-dimethylheptyl)-2-[(1R,3S)
-3-hydroxycyclohexyl]-phenol (CP-47,497); and 5-(1,
1-dimethyloctyl)-2-[(1R,3S)-3-hydroxycyclohexyl]-phenol;
(g) 6aR,10aR)-9-(hydroxymethyl)
-6,6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,
10a-tetrahydrobenzo[c]chromen-1-ol);
(h) dexanabinol, (6aS,10aS)
-9-(hydroxymethyl)-6,6-dimethyl-3-(2-methyloctan-2-yl)
-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol;
(i) 1-pentyl-3-(4-chloro naphthoyl)
indole;
(j) (2-methyl-1-propyl-1H-indol-3-yl)
-1-naphthalenyl-methanone; and
(k) 5-(1,1-dimethylheptyl)-2-(3-hydroxy
cyclohexyl)-phenol;
(17) 3,4-methylenedioxymethcathinone;
(18) 3,4-methylenedioxypyrovalerone;
(19) 4-methylmethcathinone;
(20) 4-methoxymethcathinone;
(21) 3-fluoromethcathinone; and SJC/SB 219
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(22) 4-fluoromethcathinone;
D. the enumeration of peyote as a controlled
substance does not apply to the use of peyote in bona fide
religious ceremonies by a bona fide religious organization,
and members of the organization so using peyote are exempt
from registration. Any person who manufactures peyote for or
distributes peyote to the organization or its members shall
comply with the federal Comprehensive Drug Abuse Prevention
and Control Act of 1970 and all other requirements of law;
E. the enumeration of psilocybin and psilocin in
this schedule does not apply to their medical use as provided
in the Medical Psilocybin Act;
F. the enumeration of Schedule I controlled
substances does not apply to:
(1) hemp pursuant to rules promulgated by
the board of regents of New Mexico state university on behalf
of the New Mexico department of agriculture;
(2) cultivation of hemp by persons pursuant
to rules promulgated by the board of regents of New Mexico
state university on behalf of the New Mexico department of
agriculture;
(3) tetrahydrocannabinols or chemical
derivatives of tetrahydrocannabinols, including
tetrahydrocannabinols or chemical derivatives of
tetrahydrocannabinols with concentrations of up to five SJC/SB 219
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percent as measured using a post-decarboxylation method and
based on percentage dry weight, possessed by a person in
connection with the cultivation, transportation, testing,
researching, manufacturing or other processing of the plant
Cannabis sativa L., or any part of the plant whether growing
or not, if authorized pursuant to rules promulgated, pursuant
to the Hemp Manufacturing Act, by the board of regents of
New Mexico state university on behalf of the New Mexico
department of agriculture or the department of environment;
or
(4) tetrahydrocannabinols or chemical
derivatives of tetrahydrocannabinols, including
tetrahydrocannabinols or chemical derivatives of
tetrahydrocannabinols in any concentration possessed by
a person in connection with the extraction of
tetrahydrocannabinols or chemical derivatives of
tetrahydrocannabinols, if authorized pursuant to rules
promulgated, pursuant to the Hemp Manufacturing Act, by
the board of regents of New Mexico state university on behalf
of the New Mexico department of agriculture or the department
of environment; and
G. controlled substances added to Schedule I
by rule adopted by the board pursuant to Section 30-31-3
NMSA 1978."