2022 California Council of Community Behavioral Health Agencies (CBHA) Conference

The NYSPA Report – The Safe Act: A New Reporting Requirement for Mental Health Professionals

The Secure Ammunition and Firearms Security (SAFE) Act, signed into law by Governor Cuomo on January 15, 2013, is a gun control statute that substantially strengthens rules governing access to firearms and ammunition. The law also imposes a new mandatory reporting requirement on health care professionals that went into effect on March 16, 2013 and applies to physicians, psychologists, registered nurses and licensed clinical social workers. This column will provide a brief overview of the new reporting requirement, and discuss NYSPA’s concerns about the law as currently drafted, including the statute’s failure to mandate notification to potential victims or local law enforcement as well as failure to require that any potential threat be of both a serious and imminent nature.

Summary of the Reporting Requirement

The SAFE Act amends the Mental Hygiene Law by adding a new §9.46, which imposes a mandatory reporting requirement upon health care professionals if they conclude, using reasonable professional judgment, that a patient is likely to engage in conduct that would result in serious harm to self or others. Under the statute, reports must be made to the local director of community services who will then forward the subject’s name and non-clinical identifying information to the NYS Division of Criminal Justice Services (DCJS). This information will be utilized by DCJS to determine whether an existing firearm’s license should be suspended or revoked or whether a person will be ineligible to obtain a firearm’s license. In this situation, law enforcement authorities are also authorized to forcibly remove licensed guns or firearms from an individual’s possession. A separate section of the SAFE Act requires that all patients admitted to an inpatient unit on an involuntary basis be automatically reported to the National Instant Criminal Background Check System (NICS-100) using a state portal.

Patient Confidentiality

One of NYSPA’s overriding concerns about MHL §9.46 in general is that it may adversely impact the willingness of individuals to seek out or continue with mental health treatment. As many readers are aware, the duty of confidentiality between a doctor and patient is one of the core guiding principals of the practice of medicine and is even more critical in the context of the treatment of mental illness. Psychotherapy is unique among medical specialties in that patients’ disclosure of their inner thoughts and feelings is often essential to the treatment of mental illness. If patients do not feel secure that the information they provide to a health care professional will be kept confidential, they may be dissuaded from pursuing necessary care and treatment.

At the same time, however, organized psychiatry recognizes that the duty of confidentiality may yield to public health and safety concerns if a mental health professional concludes that a patient presents a serious and imminent risk of harm to self or others and that a breach of confidentiality might prevent injury or possible death. Other state law and generally accepted psychiatric practice dictates that such a breach would be justified only when a disclosure is made to a potential victim or to law enforcement. In this case, disclosure may prevent possible harm or injury either by notifying appropriate individuals or law enforcement authorities who are able to take immediate action, including bringing the patient to a psychiatric emergency department for evaluation. Without this element – disclosure to prevent imminent harm or injury – the breach of confidentiality would not be warranted.

Proposed Bill Rewrite

To address its concerns, NYSPA suggested revisions to the bill to ensure that the duty to report is triggered only when the treating professional concludes there is a serious and imminent danger to the patient or others and that notification is also made to a potential target or law enforcement. NYSPA’s proposed language closely tracks the standards already in place in MHL §33.13, which authorizes, but does not mandate, treating psychiatrists and psychologists working in OMH or OPWDD licensed or operated facilities to warn possible victims or law enforcement when they believe that a patient presents a serious and imminent risk of harm to self or others. NYSPA’s proposed bill rewrite was shared with Governor Cuomo’s office and many members of the Legislature, but unfortunately, it was not included in the recent state budget amendments and we await further action at the state level.

Interaction with HIPAA

NYSPA is also concerned that the SAFE Act reporting requirement conflicts with the Health Insurance Portability and Accountability Act, a federal law governing the use and disclosure of personal health information (HIPAA). We believe that the SAFE Act conflicts with the HIPAA rule permitting the disclosure of health information to mitigate a threat to health or safety. Under HIPAA, such a disclosure may be made only if the threat is both serious and imminent and is made to law enforcement or to a potential target. To express its concerns, NYSPA filed a complaint with the Office of Civil Rights, a division of the U.S. Department of Health and Human Services which is charged with investigating possible HIPAA violations. As NYSPA pointed out in its complaint, which is currently under review, permitting MHL §9.46 to stand as written would place providers in New York in a situation where compliance with the state statute might constitute a violation of the federal statute.

OMH Implementation

OMH has announced that all mandatory reports will be made using a web-based submission form available on the OMH website. The online form requires specific information about the provider as well as the individual in question and the reason the provider believes the person is likely to engage in conduct that would result in serious harm to self or others. It appears that OMH is not seeking a detailed medical or psychiatric history of the individual, but rather a straightforward declarative statement regarding the threat posed. A sample completed report provided by OMH includes the following entry: “Sam has threatened to kill his wife and children by tomorrow.” This statement provides sufficient information to indicate the nature of the potential threat and clearly indicates a level of imminence because the threatened activity is expected to occur “by tomorrow.” Here, OMH has, in practice, inserted an element of imminence into the reporting criteria – in keeping with NYSPA’s suggestions.

Conclusion

NYSPA will continue to pursue changes to the new law to secure greater confidentiality protections in connection with the treatment of mental illness. With respect to the version of the statute currently in force, we are recommending to our members that they use reasonable professional judgment to determine when a report is mandated, keeping in mind that patients already admitted to an inpatient unit are unlikely to represent an imminent risk of harm to self or others. NYSPA’s ultimate goal is to narrow the reporting requirement so that health care professionals are provided with clear and unambiguous guidance on when such a report is mandated. We believe that explicitly amending the statute to add imminence as well as notification to law enforcement and a potential target will enhance society’s ability to protect public health and safety while balancing the need for privacy in the context of mental health treatment.

Ms. Fernbach is a Staff Attorney at the New York State Psychiatric Association.

References

OMH (NYS Office of Mental Health)

OPWDD (NYS Office for People with Developmental Disabilities)

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