Explaining Colorado Prop 122 With Co-author Joshua Kappel (Part 2)

Explaining Colorado Prop 122 with co-author Joshua Kappel, and our hosts Jimmy and Nicholas. Joshua Kappel, chair of the campaign committee for the Natural Medicine Health Act, helps Colorado citizens understand the precise contours of decriminalization.

They compare the personal, community-use model of psychedelic decriminalization to the state-regulated system. Josh outlines the roadmap for the regulated access program, including first steps and expected timelines. In what ways is Colorado Prop 122 similar to and different from Oregon’s Measure 109? Can spiritual use be distinguished from medical use?

Our hosts will review current progress in Colorado’s psychedelic regulation advisory board, detailing the chain of command set in place to ensure career-based equity pathways are available for those who wish to become facilitators. They’ll go over application release dates for healing centers, while reviewing current information on facilitator training programs.

How will impending psychedelic regulations address treatment options outside of healing centers– for those residing in nursing homes and assisted care facilities? What requirements will prospective facilitators have to meet in order to fulfill eligibility criteria? How will psychedelic regulations combat attempts to monopolize the industry?

Episode 23 – Explaining Colorado Prop 122 With Co-author Joshua Kappel (Part 2)

Jimmy: Welcome to The Psychedelic Passage Podcast. My name is Jimmy Nguyen. I am joined here by my cohost and cofounder of Psychedelic Passage, Nick Levich. 

We have a guest here with us to talk about Colorado Prop 122, Mr. Josh Kappel, who is a founding partner of Vicente Sederberg with a practice devoted to helping entrepreneurs and like-minded professionals build human-centric and regenerative companies in the cannabis and psychedelic communities. 

Joshua also has a passion for helping advocates draft legislation and build sustaining vehicles that will forever influence these emerging industries. Recently, Mr. Kappel was a coauthor and chair of the Campaign Committee for Colorado’s Prop 122, which we’ll be discussing today.

It was the first successful state ballot measure to create access to natural psychedelic healing through both a state-regulated model and a decentralized community healing model. 

Josh was also a drafter of Denver’s psilocybin decriminalization initiative and has assisted in drafting cannabis and psychedelic measures across the country for over 12 years. Thanks for joining us Josh, really great to have you here.

Josh: Thanks for having me. It’s an honor to be on the podcast.

Overview of The Regulated Access Program

Jimmy: Yeah. On our last episode, we focused on the community healing model, the decriminalization surrounding personal use, and I think that today I’d like to focus our dialogue around the regulatory frameworks, around support services with psychedelics, and what that means for facilitators, therapists, harm reduction specialists, service providers. So, really excited to dive in with you.

Josh: I think the best way to look at the regulated model is like this is the model designed for the public that doesn’t have access to natural psychedelics on their own. That’s not part of a psychedelic-based community

My big picture view on the world may change, but I support an all-pass model forward on access to psychedelic healing. I think as we talked about last week, there’s this key personal agency, personally used model. There’s a community use model. 

This model is like, “Hey, this is the public-facing model of a state-regulated system that’s not medicalized.” There is another model, the federal medicalized model that requires a diagnosis but this one doesn’t. I think it’s important to think about this as a state-regulated model that can be really for therapeutic use or other reasons.

Jimmy: That makes sense because that’s a big part of why we exist at Psychedelic Passage, knowing that there are many people who are interested in using psychedelics for intentional use or healing or processing and they’re not plugged into a spiritual community or a psychedelic church or a psychedelic community whereas there are many folks in Colorado who are. 

And so, I really appreciate that distinction. To my understanding, this does create some type of regulatory framework and licensure for people to provide these services. Can you talk through the roadmap for that? Like what does that look like? What are the milestones? When does this all kick in?

Requirements For Becoming a Licensed Facilitator

Josh: Unlike the personal use section which kicks in pretty much today, depending on how you read the retroactivity, this measure or the Regulated Access program is supposed to be developed over the next two years with input from the community, with input from stakeholders. 

It is also a statutory measure too, so it could be tweaked by the legislature as well. The first major step is there’s an advisory board that should be appointed by the governor by the end of January, with applications for the advisory board closing at the end of December. 

There’s specific expertise that’s required on the advisory board, but there’s not really any saved seats as one person could hold any of the expertise. With that said, there is actually the only saved seat that’s on the advisory board is for someone with the experience indigenous use of natural medicines.

The advisory board once they’re set up will likely, if we look at what’s happening in Oregon and what we saw in other state-regulated industries in Colorado, we’ll really be tasked with making recommendations around all the rules related to this program. 

There’ll likely be different listening sessions, maybe they’re subgroups, there’ll be a lot of time for the public to provide comments. The idea is that the advisory board will make recommendations that then would be accepted by DORA, which is the Department of Regulatory Affairs, which is the main regulatory agency under– the main agency tasked with regulating the regulated access program. 

As we go on and talk about what rules and what this could look like, it’s important to remember there will be a public input process.There is an advisory board that makes recommendations to the regulators. 

What we’ve seen in the past, especially around programs like this that are so new where the regulators don’t have experience with it, is that they will most likely lean on the advisory board and adopt their recommendations. Maybe there’s a couple of tweaks here, but for a regulator who has no experience with psychedelics to ignore the advice of an advisory board will be [crosstalk]

Jimmy: I hope that some of those regulators will take advantage of the personal use side and maybe they get an opportunity to explore psychedelics within their community as they are forming these regulations. 

That’s maybe too idealistic for me, I don’t know, but there’s a pathway for it. What I hear you say is that the ability to go to a state-regulated licensed service provider for any type of psychedelic support or harm reduction is likely not going to be available until 2024 is probably the case.

Josh: Correct. All the rules are supposed to be done by September 2024 with applications open at that point for healing centers and facilities.

Jimmy: Really 2025 then because there will have to be an application process, there will have to be an approval process, a training process, doing all the things to receive the license, you got to then open up your facility or healing center. We’re actually really talking about 2025 here for this regulated model.

Josh: I think another key piece on the timeline is January 1st, 2024. So, like a year and two weeks from now, the state is supposed to start approving facilitator training programs for those, which isn’t a lot of time, but that is, things are supposed to move a little bit sooner. 

Another key date is June 2026, which is where the state could add other natural psychedelic medicines in this measure to the regulated program.

Jimmy: Right now, it’s just psilocybin services, but there is an option for ayahuasca, DMT, mescaline that’s not derived from peyote, ibogaine, Iboga. There’s potential for a regulated model around those too.

Josh: I’m not convinced that all the substances should be in a regulated model. To me, I think there’s pros and cons of like if something’s in a regulated model or not, and do we really want ayahuasca in a regulated model or is that better in the community healing model? 

I think the benefits of a regulated model is people can get insurance, you can be public about it, and you can have safety protocols, but then you also have state oversight of something that maybe the state shouldn’t have oversight over. 

Things like, I have a game provided we can figure out the sustainability issues, the cultural issues, a lot of underlying issues with it would actually be better in a regulated model because then you can mandate certain health screenings and that would actually be more beneficial there. Each substance, I think, has to be looked at differently.

Nick: I have a question because I’m in Oregon, you guys are in Colorado. The rollout of Measure 109 has been challenging at best, and it’s still like there’s just a lot of uncertainty. I’m curious, maybe from your perspective on how Prop 122 is maybe the same and/or different to Measure 109?

How Does Proposition 122 Compare to Oregon Measure 109?

Josh: Yeah, that’s a great question. I think on the regulated side, you see a lot more similarities with Oregon’s 109. A lot of the similarities are there’s a mandated preparation session and there’s a mandated supervised administrative session. 

There’s a mandated integration session. Many people say there should be like 100 mandated integration sessions [Nick laughs] for another day. That piece is very similar. There’s a state licensing model for healing centers. There’s a state licensing model for facilitators, but there is a number of differences too. 

The main one being like this whole personal use model that we talked about last time and also this idea of adding different substances in. Where the differences get really interesting is in the details. 

One aspect of Colorado’s model is it allows for these sessions, for these natural medicine services to be provided at a private residence or another healthcare facility. What that actually looks like is really up to this regulatory process.

Is there going to be two facilitators required at private residences? Can you have group sessions at a private residence? Can you only have it at a private residence if you’re bedridden? All these different questions come up and that will be really interesting to unpack. 

I think it’ll also be interesting to unpack like, “Hey, how are these services going to take place in health care facilities and addiction treatment centers and nursing homes? This is a big difference in the model is like not requiring these services just to be at Healing Centers.

Jimmy: I say this very loosely to our audience, by the way, but who’s qualified or allowed to apply for these licenses? The one thing that I like in Prop 122, I like a couple of things and there’re a couple of things that of course have a healthy debate about. 

One thing that I like is that there’s some language that says that previous licensure is not required. The way that I read that is that you don’t have to be, let’s say, a licensed therapist already or a licensed social worker or a counselor already to be able to apply for a license to operate a psilocybin-assisted services center. Can you talk more about that?

Josh: Yeah, there are two licensing regimes, I guess, that are created under Prop 122. One is the licensing of facilitators and who qualifies to be a facilitator and the other one is the licensing of Healing Centers. I think we should talk about in turn the facilitator license. 

How it’s structured right now is it’ll be right next to all the other professions that DORA regulates, whether it’s the therapist or the nurse or the doctor would be the facilitator. They’re required to develop the training programs of like what does it mean to obtain a facilitator license? 

A lot of the details will ultimately come out of this regulatory process. We did mandate a couple of things. We mandated a tiered training program, what services the facilitator is providing, and the indications of the participants. The idea here is how do we create a stackable equity-based career pathway that allows people to come in?

It’s not unreasonably difficult for someone to become a facilitator and allows them to grow with their experience. The idea that someone’s being a trip setter or being a guide and they’re just holding space that’s going to be different than if someone is providing psychedelic-assisted therapy

It’s different if someone’s coming in for spiritual experiences versus coming in for trauma. A lot of times the difficulties like how do we differentiate and how do you know and a lot of people haven’t even recognized some of the trauma that they have. 

The idea is like, “Hey, maybe there’s a facilitator one, then a facilitator two license, a facilitator three license,” and through experience you can move up from facilitator one to facilitator two, et cetera. You can create a pathway where people actually have hands-on experience and can progress just based off of doing the work.

With that said though, you’re right that there are no prerequisite requirements. This isn’t limited to just psychotherapists or psychiatrists really. Anyone can go through this facilitator training program and the state is supposed to take into consideration whether it’s prior experience as a therapist or prior experience with these natural medicines, actually calls it out. 

I think that’s a key piece of the facilitator licensing is this is how we intended it. Through this community process, I think we’ll see a lot of changes and tweaks, what is the difference between a facilitator that’s providing nondirective services versus therapy-related services, and what should those requirements look like? 

Is this a 300-hour program? Is this a 1000-hour program? There’re a lot of questions there. I will say one key piece of this, there’s a mandate around how we make sure we have equity in the facilitator training program.

That’s both in terms of the cost of not having it unreasonably financially prohibitive. Also, there’s a mandate from the state to create an equitable program and I don’t know if that’s going to turn into subsidies, if it’s going to turn into grants, or if it’s going to turn into different requirements. A lot of that piece around equity on the facilitator license side still needs to be fleshed out and created.

Nick: Well, I have to say from my perspective, it sounds like you thought through a lot of the shortcomings that were associated with the rollout here in Oregon. Because one of the bugaboos that I have is that everything in Oregon is considered psychedelic-assisted therapy, but there’s no tiered programs to rank facilitators and there’s also no requirement of you to have any therapeutic or therapy training. 

I keep thinking of the situation where a journeyer has got schizophrenia get paired with someone with a high school diploma who completed 200 hours of education and is now a licensed facilitator. 

It always just felt like a mismatch to me. What I’m hearing you say is the tiered program helps qualify which facilitators are actually suited to work with certain types of journeyers depending on what they’re seeking.

Josh: You’re right and that’s just like the ideal dream of it. We’ll see how it plays out in practice. A lot of this I think what was so messy in Oregon was they’re the first people to do that. 

We can learn from some of their mistakes and us pivoting based off of some of their mistakes will likely lead to new mistakes and that’s just going to be part of this process.

Jimmy: It’s not black and white. It’s a double-edged sword, especially with the prerequisites to this. On one hand, it allows for anybody who eats 1 g of psilocybin to be like, this is my destiny, I’m here to help and support people and all of that. You get a lot of people off the street who may not have the natural skillset or capacity to hold the space. That’s maybe a tricky part of this. 

On the other side, it does open up some doors for folks of all different types of backgrounds whether it’s indigenous lineages to spiritual religious backgrounds to formal mental health backgrounds to peer support backgrounds, folks who work in the harm reduction world to also have a shot at this and so I totally hear that there’s a lot in between those two ends of the spectrum. 

Also, there’s a whole implementation standpoint as well. It’ll be interesting to see how it unfolds. You mentioned that there’s another, I guess, tranche for Healing Centers or a different set of licensures for Healing Centers. Right?

Discussing Corporate Influence in Psychedelic Markets

 

Josh: Yes. Again, we have a facilitator license. Facilitators don’t have to be linked to a Healing Center. You can create your own facilitator network. There’re different items there, but then you have the Healing Centers. The Healing Centers is our one size fits all business entity in the space. 

They’re technically allowed to cultivate and process and sell products to each other and also be a place for the provision of national medicine services. This is the piece I alluded to in our last session around, “Hey, how do we understand that companies do provide, they do actually provide a lot of benefits to the world, but how do we limit the harms of capitalism?” 

What like pieces and restrictions are put in place there? This is a spot that’s different than Oregon, too, really on four different pieces. One is we don’t have any local opt-out. Local governments can’t ban Healing Centers from operating in their jurisdiction. 

They can create zoning regulations, but they can’t ban them. To us, this is a key piece. We don’t think only progressive parts of the state need psychedelic healing. All parts of Colorado definitely need psychedelic healing. 

There’s a limitation: you can’t have an interest in more than five Healing Centers. We’ll see how this plays out. This could effectively prohibit public companies from being in the space because public companies can’t control who owns their shares. 

It’s like you as an individual could own one share of 20 different public companies and how would the state regulate having an individual interest? And so, we’ll see how that regulation unfolds.

Jimmy: And with the hope that would fight against monopolizing markets and industries like we see in cannabis, like in Illinois, it’s the top four or five players who control 80% of that regulated market as far as recreational cannabis. 

Obviously, there’s the idealism with where we’re at now and then the implementation on how that looks moving forward. What else is important to share around the licensure and regulations around Healing Centers?

Josh: Yeah, I think the biggest one I wanted to get to was like where we landed on corporate influence. We debated for a while, should we require these companies to be nonprofits or require them to benefit corps? And that didn’t make sense to us. 

The higher attorneys like me we’ll create paths around it. It actually dilutes the benefit corp name if you mandate that people are that. Where we landed was like, “Hey, you know what? Let’s take a step deeper and not just hate capitalism for the sake of hating capitalism, but what do we hate about capitalism?” We took that step deeper, we were like, 

“Hey, maybe we can mandate certain business practices in this space, and we can only let companies in this space who have business practices that match our values as a community.” What we built in is this environmental social governance screen or this ESG screen that needs to be created and that would rank–

If you wanted to get a Healing Center license, you’ll need to go through this ESG screen and you’ll be ranked on, “Hey, how much do you pay your employees? What sort of benefits do you provide? What are your environmental standards? Are you net positive from an energy use? 

Do you have sustainable agricultural practices? Do you have a transparent board?” What I want to build in there that’s not really built into a lot of ESG screens, but “Do you have some benefit honoring program? Are you giving back to these intergenerational traditions and tribes that have kept this medicine sacred?” 

What’s being tasked is to create this business practices screen around ESG principles that relate to the purpose of this. Only if a company score is so high can they even participate. It sets, unlike cannabis, whereas like the race to the bottom, how cheap can we make this?

We’re saying, “Well, you can still race to the bottom, but the bottom is going to be substantially better than all the other industries around.” So, I’m super excited about this measurement. 

I think the effectiveness to riff up what you said earlier, Jimmy, it’s like the effectiveness of this screen will really relate to what implementation looks like. It could be meaningless or it could be very meaningful. To me, this is like a key piece. It’s different than Oregon because there’s no screen like this in Oregon, frankly, almost different than any other industry that’s out there.

Nick: Well. It’s also interesting because when you talk about one of the ranking factors being how you take care of your employees or don’t in some cases and these facilitator training programs in Oregon cost anywhere from 10 to 20k and then there’s no indication of what facilitators will get paid and if they’ll ever be able to make their money back. There’re certain things like this that just there’s a lot of uncertainty around.

Josh: Right. I actually think that’s like one key thing too. I think facilitators are like they’re not tied to the healing center, so it’s like facilitators themselves at their own agency whereas what we saw in cannabis, which is a real problem, was early cannabis all the growers had to work for a dispensary. 

It was like forced vertical integration. Facilitators don’t, they’ll be able to go to people’s houses, they’ll be able to go to nursing homes, they’ll be able to organize collectively amongst themselves. I think we’ll see some facilitator forward healing center models here in Colorado that are more of like a place for facilitators to operate.

Nick: Yeah, that’s cool and that’s important. Anyone that’s listened to our show for any period of time recognizes that who you choose as a facilitator is a really big deal. It is important that there’s consideration given to who it is that’s supporting you on your journey.

Jimmy: Now that there are regulatory frameworks around licensure, what Nick said still holds true. Like just because somebody does have a facilitator one, facilitator two, facilitator three, license around this doesn’t mean that they are the right facilitator for you. 

Doesn’t mean that they are going to operate in the highest ethics and integrity because this is a very new landscape that people are excited about and that has its pros and cons as well. 

I know we’re getting close to time, Josh, just like our last episode, I want to make sure that you have time to cover all of the things, important pieces that you want around this regulatory side. Just feel free to share what you’d like with our audience.

Josh: Yeah, I think a big piece is there’s this mandate for regulations around an equitable program. The mandate says it’s like the advisory board and the DORA are supposed to establish policies and procedures to ensure that this program is equitable inclusive to promote both the licensing and the vision of national medicine services to a couple of different communities. 

Communities have been disproportionately harmed by high rates of arrest to people who face barriers to access healthcare, to folks of a traditional indigenous history of natural medicines or to veterans. I think this is key because that is the mandate from the very beginning. It’s like what do these policies look like? 

They’re supposed to be around reduced fees for licensure and facilitator training. They’re supposed to be incentivizing the provision of these natural medicine services that reduce cost to low-income individuals, incentivizing geographical and cultural diversity and licensing and the availability of these services.

Also, a built-in program to review the effectiveness of this whole equity program. The equity program is allowed to be funded by the licensing fees of these healing centers. I think, again, this is one of those like, we put in this what could be a beautiful house depending on how it’s created through this regulatory process or it could be something meaningless. 

It’s like how do we– the big takeaway, I think, on this one and many pieces is like, “Hey, we need to make sure this regulatory program turns out how we want it to turn out.” That the limitations on the corporatization of this or equity program, a meaningful facilitator training program, are actually effective and based off of the best knowledge we have as a community. 

Even though understanding we’re going to make mistakes and it’s not going to be perfect and it’s making regulations, it’s not the prettiest process because there’s different stakeholders and people are going to argue over what their priorities are.

Jimmy: Yeah. Ultimately my takeaway from your share there is that though the passing of Prop 122 was a really big milestone and I think Colorado’s history and the history of the United States. 

The real work is actually starting because this is where the rubber hits the road as far as implementation and governance and who the regulators are. Like, I even saw that with cannabis, when there were rules around Metrc and regulating the supply chain, you were basically having to account for every single gram of cannabis that you produce. 

Imagine if Budweiser had to track every single bottle of alcohol that they had to produce. There was a big gap in, I think, what the regulations said that you have to do versus what was actually tracked and enforceable within Metrc and within the regulatory stuff. 

Metrc was the seed-to-sale system in Colorado that tracked all that. It’s just an example that though these provisions and mandates are written and now there’s a lot of work moving forward as far as how this looks in actuality.

Josh: Yeah, I think that’s absolutely right. I’ve been using the analogy that election night when it passed the false summit. [Jimmy laughs] We all thought we made it to the top of the mountain. When we finally got there, we realized that the actual mountain was right in front of us and we were just at a spot where we can make a base plan.

Jimmy: Yeah. So where can people find more information, Josh? I’m sure that you’ll have some resources on the Vicente Sederberg site for folks both on the personal use side and both on the regulatory licensure side who are interested in following this and keeping up to date. Do you have any outlets for those folks?

Josh: Yeah, there’s a couple. One is at Vicente Sederberg we work with all sorts of different facilitators or potential facilitators or people trying to figure out what their rates are under this, you can always reach out to us. We do have a lot of information on our website. 

We have a Summary of the Law. I’m sure we’ll post some updates about what’s happening during the implementation process. There’s a lot of community groups that I expect will have good information out there, whether it’s from Nowak society or SPORE or the Healing Advocacy Fund. 

There’s a lot of different groups that are putting out some good information on this and I think we’ll see more. One piece too, there’s a big mandated public education component of this too, which we will have to save for another episode.

Jimmy: Yeah. That’s such a big focus for Nick and I is how do we get folks actionable, tangible information on how to move forward in a safe manner that also helps you to move closer to your intentions. We’ll likely work on some things as well on getting some of this information out to the public in a meaningful and educational way. Thank you. Go ahead, Nick.

Nick: I just wanted to say thank you for the intentionality and the thoughtfulness that you and your team put into drafting this, because just from our discussion today it definitely comes through. My hope is that the implementation matches the intentionality with which all this was written.

Josh: I appreciate that and that is my hope too. I think we’ll need to make changes as we pave new roads here. We’ll realize some things are wrong. I think through this process, hopefully, it’s like we can all come together with humility and fix those things.

Jimmy: Yeah, building the plane as it flies, which is seemingly one of the ways of paving a path forward in the psychedelic world-

[laughter]

Jimmy: -we’re living in.

Josh: Right [laughs]

Jimmy: Yeah. Thank you so much, Josh. That wraps up our episode this week, so thank you to all of our listeners. You can download episodes of The Psychedelic Passage Podcast by looking for all of our episodes in cannabisradio.com, subscribe to the show on Apple Podcast, Amazon, Spotify, IHeartRadio, wherever you get podcasts. 

We really appreciate the community engagement. We are just so, so humbled and grateful that we do have you all listening to our episodes and that you’re getting some type of value from there. 

Let us know how we can continue to provide that value and support in future episodes. You can give us a rating, you can give us a review, you can send us a message, and we look forward to seeing you all next time.

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