Professional blog

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NEW YORK SECURE AMMUNITION AND FIREARMS ENFORCEMENT ACT

(NY SAFE ACT)

NYS Office of Mental Health

NYS Office for People With Developmental Disabilities

Guidance Document

On January 15, 2013 Governor Cuomo signed the New York Secure Ammunition and

Firearms Enforcement Act (SAFE) into law. Reflecting a comprehensive approach to

reducing gun violence, the law toughens criminal penalties on those who use illegal guns;

closes a private sale loophole to ensure all gun purchases are subject to a background

check; allows authorities to track ammunition purchases in real time to alert law

enforcement to high volume buys; requires recertification of pistol permits every five

years; and strengthens the state’s ban on high-capacity magazines and assault weapons.

In addition, the law contains several provisions pertaining to the duties of mental health

professionals regarding patients who may pose a danger to self or others. The following

is a brief summary of these provisions and guidance regarding their implementation.

1. Mental Hygiene Law Section 9.46 – Reporting Requirements for

Mental Health Professionals:

A. Reporting Process:

SAFE establishes a new Section 9.46 of the Mental Hygiene Law (MHL), which requires

four groups of mental health professionals (i.e., physicians, psychologists, registered

nurses, and licensed clinical social workers), in the exercise of their reasonable

professional judgment, to make a report as soon as practicable to county mental health

officials if an individual for whom they are providing mental health treatment is “likely to

engage in conduct that will cause serious harm to self or others.” Upon receiving a

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Section 9.46 report, if the county mental health official agrees with the mental health

professional’s determination, he or she will then report “non-clinical identifying

information” to the New York State Division of Criminal Justice Services (DCJS). DCJS

will then determine whether the person possesses a firearms license and, if so, will notify

the appropriate local licensing official, who must suspend or revoke the license as soon as

practicable. The person must surrender such license and all firearms, rifles, or shotguns

to the licensing officer, but if the license and weapons are not surrendered, police and

certain peace officers are authorized to remove all such weapons.

B. Reporting Standard:

With respect to initial reports made by mental health professionals, the reporting standard

is “likely to engage in conduct that will cause serious harm to self or others.” This

standard is consistent with the “likely to result in serious harm to self or others” standard

that a DCS or designee uses to direct emergency “removals” from the community to a

psychiatric hospital for examination under MHL Section 9.45. This is also consistent

with the standard for emergency admissions for observation, care and treatment pursuant

to MHL Section 9.39.

As such, decision making with respect to a Section 9.46 report requires a clinical

determination that a person’s clinical state creates either: “(a) a substantial risk of

physical harm to the person, as manifested by threats of or attempts at suicide or serious

bodily harm or other conduct demonstrating that the person is dangerous to himself or

herself, or (b) a substantial risk of physical harm to other persons as manifested by

homicidal or other violent behavior which places others in reasonable fear of serious

physical harm1.”

This standard differs from the non-emergency, involuntary commitment standard

pursuant to MHL Section 9.27 (i.e., the “2 PC” standard). The “2 PC” standard requires

certification by two physicians that an individual has a mental illness for which care and

1 See Mental Hygiene Law Section 9.01

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treatment as a patient in a hospital is essential to the person’s welfare. Furthermore, the

person’s judgment must be so impaired that s/he is unable to understand the need for care

and treatment. The courts have interpreted the 2 PC standard as requiring both mental

illness and a finding that the person is dangerous to self or others, but such dangerousness

may be found even without an active display of dangerous behavior, conduct, or threats if

the person has a history of dangerous conduct associated with noncompliance

with mental health treatment programs. Accordingly, a person could meet the “2 PC”

standard, but still not pose a risk of harm that justifies action pursuant to either the

emergency removal or admission standard, or the 9.46 standard.

Because the 9.46 standard is consistent with the standard that is used for emergency

removals and admissions under MHL Article 9, a person who requires a Section 9.46

report could simultaneously require an emergency removal to a psychiatric hospital for an

examination pursuant to MHL Section 9.41, 9.43, or 9.45. Depending on the results of

the examination, such person could also thereafter be admitted and retained in a hospital

pursuant to MHL Section 9.39.

The inclusion of the county mental health official in the reporting ladder is intended to

ensure appropriate action is taken with respect to persons with mental illness who pose

immediate threats of serious harm.

C. Confidentiality and Liability Concerns:

With any mandatory reporting requirement, concerns regarding confidentiality and

liability (for making a report or, conversely, failing to make a report) may be raised.

These concerns are addressed as follows:

• The law specifically provides that mental health professionals will not be

subject to any civil or criminal liability if the professional’s decision with

respect to whether or not to report was made “reasonably and in good faith.”

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• Once the conditions for making a report are met, the law requires the mental

health professional to report to the county Director of Community Services, or

designee. If the county mental health official agrees with the determination, a

report is then made to DCJS. Because these disclosures are required in the law

(once the conditions for reporting are met) the mandated reports can legally be

made without requiring the person’s consent. Under 45 CFR § 164.512(a), the

HIPAA Privacy Rule permits disclosures of protected health information

without the authorization or consent of the individual to the extent that such

disclosure is “required by law” and the disclosure complies with the

requirements of that law.

SAFE also amends Mental Hygiene Law Section 33.13 governing disclosure of mental

health clinical information to ensure the disclosures of information necessary to comply

with the various reporting requirements of the new law can be legally made. The law

provides that only a patient’s name and other “non-clinical identifying information” (e.g.,

name, date of birth, race, sex, SS#, or address) can be disclosed by the county mental

health official to DCJS, so that this information can be used to determine if the patient

has a firearms license. If so, DCJS will report that information to the local firearms

licensing official, who must either suspend or revoke the license. If the licensing official

wants to obtain additional information regarding the report, the licensing official may

obtain a subpoena, pursuant to the Section 33.13(c)(1) of the Mental Hygiene Law. In

addition, action will be taken to remove the license and any weapons owned or possessed

by the individual.

2. Background Checks for Firearms Licenses:

The federal Brady Handgun Violence Prevention Act of 1993 established the National

Instant Criminal Background Check System (NICS) and requires Federal Firearms

Licensees (FFL) to contact NICS before transferring a firearm to an unlicensed person.

NICS will provide the FFL with information on whether the person is prohibited from

receiving or possessing a firearm under federal law. Among other disqualifying criteria,

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the Brady Act prohibits the receipt or possession of firearms by an individual who has

been adjudicated as having a mental disability or has been involuntarily committed to a

mental institution.

In response to the NICS Improvement Act of 2007, New York State began to populate

the NICS database with non-clinical identifying records of individuals with mental

disabilities who would meet the Brady Act disqualifying criteria. This includes persons

who have been involuntarily committed or confined pursuant to Articles 9, 10 or 15 of

the Mental Hygiene Law, Article 730 or Section 330.20 of the Criminal Procedure Law,

Section 402 or 508 of the Correction Law, or Section 322.2 or 353.4 of the Family Court

Act. Note, however, this does not include records of persons admitted to psychiatric

hospitals only for observation or those who were voluntarily, and not involuntarily,

admitted. The Office of Mental Health (OMH) and the Office for People With

Developmental Disabilities (OPWDD) regularly update and submit this information to

the NYS Division of Criminal Justice Services (DCJS), which forwards these records to

the NICS database.

SAFE expands upon these provisions by creating a statewide database of firearms license

holders maintained by the New York State Police. It also amends the Mental Hygiene

Law to require OMH and OPWDD to transmit the information that is being submitted to

the NICS database to DCJS, for the purpose of enabling DCJS to determine whether a

person is disqualified from possessing a firearm under federal or state law. DCJS will

check pending firearm license applications against the disqualifying data provided to it,

as well as the Mental Hygiene Law Section 9.46 reports. If DCJS discovers that the

applicant has such a mental health record, it will report that information to the licensing

official who will be determining if a license should be granted. DCJS also will

periodically check the statewide firearms license database against criminal convictions,

mental health, and all other records necessary to determine if an individual is no longer

eligible to possess a firearm. If DCJS discovers data suggesting that an individual is no

longer eligible to possess a firearm, DCJS will then notify the appropriate licensing

official, to facilitate the process to suspend or revoke the firearms license. In addition,

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action will be taken to remove the license and any weapons owned or possessed by the

individual.

Under NICS and State law, New York State has established a “certificate of relief from

disabilities” process to permit a person who has been disqualified from possessing a

firearm due to a mental disability to petition for relief from that civil rights disability.

For persons who have been so disqualified, that process originates with OMH (or

OPWDD). Information about how to petition for a certificate of relief can be found on

OMH’s public website at www.omh.ny.gov/omhweb/nics/ or at OPWDD’s website

at www.opwdd.ny.gov/opwdd_resources/opwdd_forms/nycrr_application_requirements.

3. Assisted Outpatient Treatment (AOT):

In 1999, New York State enacted “Kendra’s Law,” which established a process of

requiring “assisted outpatient treatment” (in lieu of commitment to a facility) for certain

persons with mental illness who otherwise may be deemed to be dangerous. SAFE

expands Kendra’s Law in the following ways:

• The duration of an initial assisted outpatient treatment order has been extended to

one year, from the current six months.

• Provisions are included to ensure that a treatment order “follows the person” from

one county to another if the person moves. This is achieved by clarifying that the

“appropriate” Director of Community Services (DCS) is the DCS in the county

where the assisted outpatient resides, even if it is not the county where the AOT

order was originally issued. Further, the DCS in an AOT patient’s new county of

residence must be notified when the patient has or will move.

• Thirty days prior to the expiration of an AOT order, SAFE requires the DCS to

evaluate the need for continued AOT.

• Explicit authority is given to the DCS to file a petition to renew an expiring AOT

order when the person is missing and cannot be evaluated prior to the expiration

of the order.

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• Kendra’s Law, which had a current sunset date in 2015, has been extended for

two additional years until June 30, 2017.

Confidentiality &

Recordkeeping SALIHA BAVA, PHD

MFT PROFESSOR

2023 FALL

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Definitions

 Privacy as “the basic entitlement of people to decide how much of their property, thoughts, feelings, or personal data” can be shared with others ( p. 150).

 Privilege refers to “certain specific types of relationships that enjoy protection from disclosure in legal proceedings” (p. 152)

 Confidentiality refers to “a general standard of professional conduct that obliges a professional not to discuss information about a client with anyone” except under certain circumstance agreed to by both parties (p. 151)

 Confidentiality is considered more legally substantial than the concept of privacy.

Saliha Bava, PhD

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Source: Koocher & Keith-Spiegel, 2008,

Confidentiality

 Confidentiality = “What is said in the room, stays in the room”

 Legally it is a privilege of client-therapist relationship & therapeutically is viewed as critical for confidence & trust building

 Confidentiality originates and/or is guided by:

 Ethical Principles: Dignity, Autonomy, Fidelity

 Professional Ethics

 Law

 Case law

 Standard of practice

 Inst itutional policy

 There are limits to confidentiality which

 Can help create a relat ionship

 Can also adversely affect the relat ionship

Saliha Bava, PhD

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Ethical & Legal Overlaps

Ethical

 Professional may encounter situations in which the solution must rely on ethical

principles & legal standards (p. 148)

 Confidentiality does not die when a client dies (p. 146-148)

Legal

 The U.S. Constitution does not confer specific privacy rights

 Privilege originates in statues or case laws & belongs to the client

 Confidentiality may originate in laws enacted by federal & state legislatures

 Legal obligations do not always align

with ethical responsibilities thus resulting, at times, in clinical dilemmas

Saliha Bava, PhD

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Legal Perspective

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 Health Insurance Portability and Accountability Act 1996

(HIPAA) is a federal law

 Failure to observe

confidentiality may result in liability lawsuits

 It is imperative to know the

law of the jurisdiction in which you practice

Saliha Bava, PhD

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Saliha Bava, PhD

Source & Read more: https://www.hipaaguide.net/hipaa-for-dummies/

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Saliha Bava, PhD

What are the limits of confidentiality?

 Mandated child abuse reporter or in case of elder abuse

 Duty to warn (harm to other) & Duty to protect (harm to self)

 Court Order

 You have to comply with a court order unless appealed to a higher court

 Check with client’s attorney what is required

 Consult with attorney on the impact of releasing record.

 For subpoena-only a response is required e.g. of a response: “I cannot confirm or deny if XYZ is a client.” (for your client’s opposing party’s attorney’s subpoena, not for a judge’s subpoena)

 Malpractice Lawsuit: A therapist’s right to defend oneself (check state laws)

Saliha Bava, PhD

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Therapeutic Relationship

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 Professionals use confidentiality to ensure effective therapeutics

 Involving the client in the self-reflection and disclosure process empowers them and helps them build courage and a sense of self.

 Helps protect rights’ of minor, especially when they are in harm’s way

 A therapist’s duty to report may negatively impact the therapeutic relationship

Saliha Bava, PhD

See above video: https://youtu.be/DKFZl73dv4o

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Saliha Bava, PhD

Duty to Warn/Protect: Varies by State Laws

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See the map to note how there are 3 types of states based on

duty to warn/protect laws:

Type 1: Those that require

or mandate action

Type 2: Those that are

permissive: ie therapists

decide on case by case basis

Type 3: No law or unclear

Saliha Bava, PhD

Source: http://www.ncsl.org/research/health/mental-health-professionals-duty-to-warn.aspx

Duty to Warn/Protect: New York State

(NYS)

 The SAFE Act amends the Mental Hygiene Law (MHL) by adding a new §9.46 which makes NYS a mandated state as of Jan 15,

2013 (before that NYS was more of standard of practice state with no clear legal mandate)

 The duty to warn is complicated in NYS for the following reasons:

1. Based on Secure Ammunition and Firearms Enforcement Act (SAFE) act:

 Limited to gun ownership

 Fails:

 Breach of confidentiality when we report and

 Does not speak to the issue of the risk posed: that is, is the risk both serious and imminent?

 Reporting requirement conflicts with HIPAA (but the NYS states otherwise)

2. Complying with State law (SAFE Act) v iolates Federal law (HIPPA)

 “the SAFE Act reporting requirement is intended to address only legal gun ownership and does NOT address notification to law

enforcement or to a potential v ictim to warn of a risk of injury to the patient or others.”

Saliha Bava, PhD

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Source: http://www.nyspsych.org/index.php?option=com_content&view=article&id=73:the-safe-act–guidelines-for-complying&catid=41:safe-act&Itemid=140

Duty to Warn/Protect: Practice

Guidelines as per NYSPA

 The New York State Psychiatric Association (NYSPA) is the professional medical specialty organization of psychiatrists practicing in New York. According to them, incase of situation where there is duty to warn or protect, take the following steps (but in your practice, please check with your supervisor/agency policy):

1. Contact law enforcement and, where appropriate, a hospital’s emergency department, to have the patient brought to the hospital for evaluation

2. Notify a potential victim, where applicable

3. Submit a report to the online Integrated SAFE Act Reporting Site (ISARS) https://nysafe.omh.ny.gov/

 Read more here: https://www.nyspsych.org/index.php?option=com_content&view=article&id=73:th

e-safe-act–guidelines-for-complying&catid=41:safe-act&Itemid=140

Saliha Bava, PhD

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Source: http://www.nyspsych.org/index.php?option=com_content&view=article&id=73:the-safe-act–guidelines-for-complying&catid=41:safe-act&Itemid=140

Online SAFE ACT Reporting

Saliha Bava, PhD

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NOTE: The online safe

reporting is primarily for

determining firearm related

issues.

For mental health care,

additional steps still need to

be taken

SOURCE: https://nics.ny.gov/safe-act.html

Checkout the State Website

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Saliha Bava, PhD

Get familiar with these websites: to be a professional is to know how to find relevant

information and make sense so you can make informed decision

Check out these websites to

https://nics.ny.gov/safe-act.html

https://nics.ny.gov/docs/guidance.pdf

(Q4 on Blackboard thread refers to you doing a quick reading based on the above link)

New York State: Practice Guidelines & Applicable Laws

 To learn more for NY state practice guidelines: Maintaining Confidentiality

of Patient Information visit:

http://www.op.nysed.gov/prof/mhp/mhppg2.htm

 Applicable laws:

 Education Law, section 6509(9) – unprofessional conduct

 Regents Rules, part 29.1(b)(7) – failing to release requested records

 Regents Rules, part 29.1(b)(8) – revealing information without patient consent

 Regents Rules, part 29.15 – special provisions for the professions of creative arts therapy, marriage and family therapy, mental health counseling, and

psychoanalysis

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Saliha Bava, PhD