Attorney Claims State Officials Intentionally Violated HIPAA to Enforce SAFE ActCapital Tonight April 13, 2013
A Western New York Attorney is accusing the State Police of misusing legally protected medical information to enforce the New York SAFE Act. The accusation is at the center of a lawsuit Jim Tresmond is preparing on behalf of an Erie County man who was mistakenly identified as violating a mental health provision in the law.
"Due process is backward in the situation as far as the SAFE Act. First, you're convicted then you have to prove you're innocent. That flies in the face of our constitution," Tresmond said.
Tresmond's client, David Lewis, 35, of Amherst was ordered to turn in his weapons last week because he was once on anti-anxiety medication. Erie County Clerk Chris Jacobs told YNN he was notified by State Police that Lewis was in violation of the mental health provision of the law, and was ordered to pull his firearms license.
About a week after Lewis' license was revoked, Jacobs said he got a call from New York State Police explaining "they had the wrong guy." A day after Jacobs went public with the information State Police said it was Jacobs who made the error, not them.
"The State Police they have the investigatory ability, not the County Clerk and not the Supreme Court Judge who signed the order," Tresmond said.
Tresmond claims while investigating the "mistake" he discovered that State police had examined his client's medical records without a valid search warrant. Tresmond said that's a clear violation of federal and state privacy laws in addition to the New York State Criminal Procedure Law.
"This is not a simple case of mistaken identity. Mr. Lewis' medical privacy was invaded and he was publicly defamed and humiliated by New York State officials," Tresmond said.
Tresmond went a step further, accusing the State of creating a "clandestine HIPAA unit" within the Division for Criminal Justice Services, charged with examining New York residents' medical records without warrant.
"I believe there are seven officers assigned to this unit, who are assigned to review those HIPAA files. And try to nab those people who are on certain medications, certain treatments, and then pull their licenses across the state," said Tresmond.
A State Police spokesperson told YNN the accusations are "flat wrong."
David Lewis himself spoke out for the first time Friday as his story has now gained national attention. He told YNN's Katie Cummings the whole situation has been a nightmare.
"I was extremely shocked and saddened and immediately just felt embarrassed knowing that someone had thought negatively of me and wrongly. I had absolutely no idea how this could have happened," Lewis said.
A State Supreme Court Judge reinstated Lewis's firearms license Thursday, but Tresmond isn't satisfied.
"They were absolutely in violation of his civil rights at the state level. They didn't do their due diligence. We're going to go to Federal Court and seek damages against the State of New York. We're going to seek damages against the State Police," Tresmond added.
Meantime, another man by the name of David Lewis in Orange County was ordered to turn in his guns this week. Tresmond does not believe that was the "mistake" referred to by State police.
"We will be relentless in our pursuit of the truth and justice in this case," Tresmond added. http://capitaltonightny.ynn.com/2013/04/attorney-claims-state-officials-intentionally-violated-hippa-to-enforce-safe-act/ ---------- NY SAFE Act Notification Under Fire
Mental Health Pros Fear Issues
By Bethany Bump<http://www.dailygazette.com/staff/bethany-bump/> Daily Gazette April 14, 2013
CAPITAL REGION - It was the kind of mistake mental health professionals were afraid would happen, the kind that stigmatizes, humiliates and haunts those living with mental illness.
It was the kind of story passed around in chain emails by gun advocates. "TYRANNY," they cried in all caps.
"New York Police Confiscating Firearms from People Taking Anti-anxiety Medication" was how one blog put it last week.
Police admitted they made a mistake when they took seven handguns and the pistol permit of an Amherst man who had once taken anti-anxiety meds, they told Buffalo-area reporters. He needed the medication to help him get over his fear of going to the doctor for shots.
But somehow, under the changes recently made to the state's Mental Hygiene Law under the NY SAFE Act, a referral was sent to the state Division of Criminal Justice Services that triggered the permit suspension.
"No one, including state police, is taking guns from anyone because they are on anti-anxiety medications," a state police spokeswoman told Rochester television station WHAM.
It was all a case of mistaken identity, authorities explained. The man's guns were returned, but mental health professionals and advocates were left wondering if the new law couldn't have made things clearer.
And some New Yorkers are worried, tallying all the reasons they could be labeled mentally ill - the Valium they take on airplane flights, the sleeping pills they once tried or the therapist they once saw - and whether they could become a target under the new law.
Their voices aren't as loud as the folks protesting New York's restrictions on military-stye firearms and large-capacity magazines, but the mental health community has qualms with the changes applied March 16 to the state's Mental Hygiene law - primarily the section requiring physicians, psychologists, registered nurses and licensed clinical social workers to report patients they believe are "likely to engage in conduct that will cause serious harm to self or others."
There were already ways to intervene before the new law, through mandatory psychiatric evaluations and admission to mental health facilities, but there was never the legal authority to take the person's guns or license away.
"People with mental illnesses and the community members who provide for them have felt very defamed and criminalized by the discussions out of Newtown and the discussions around these gun control policies," said Harvey Rosenthal, executive director at the New York Association of Psychiatric Rehabilitation Services.
People with mental illness are 11 times more likely to be victims of violence than to commit an act of violence, he said. They are five times more likely to be murdered, and they are no more violent than the general public.
After heart-wrenching tragedies like the Newtown massacre, in which a gunman killed his mother and then six teachers and 20 students at Sandy Hook Elementary School, policymakers like to round up "the usual suspects," he added.
"They go after the people with mental illnesses because we're sort of easy to target," said Rosenthal. "We're easy to ridicule, and this is compounded by the fact that the gun lobby, right after Newtown, succeeded in deflecting the focus [to] 'those crazy people.' We've been really alarmed and outraged about the way we've been talked about and the policies that have come out of this."
Stigma aside, mental health advocates worry the changes will have a chilling effect on New Yorkers who might be unsure whether to seek treatment, or even on those already in treatment. What about a depressed hunter, too nervous to see a therapist for fear of having his hunting license suspended? What about those with untreated paranoid personality disorder or paranoid schizophrenia?
"There is the feeling that the government is sort of in the room now, too," said Rosenthal. "It doesn't matter if there is a real threat that your guns will be taken away. Just the impression can sometimes be stronger than the facts. I fear that this will have a chilling effect on people's willingness to seek mental health services because they fear being seen by the public as potentially violent, or being put into a registry."
Although the New York State Psychiatric Association supports gun control measures, it has publicly decried the SAFE Act's mental health reporting provision, in part for its potential to scare away those who would benefit from treatment.
Confidentiality is a one of the core guiding principles in medicine, the group said in a news release, and it's even more critical in the practice of psychiatry.
"Psychiatry is unique among medical specialties in that patients' disclosure of their inner thoughts and feelings, including angers, hostilities and resentments, is often essential to the treatment of mental illness," the release said.
Breaching confidentiality has only ever been acceptable under pressing circumstances, said Richard Gallo, NYSPA's government relations advocate. The SAFE Act asks mental health professionals to breach confidentiality under vague circumstances, he said, and to people without the power to act immediately.
"What do they mean by 'likely to engage'?" he asked of the language. "Likely to engage when? Now? Tomorrow? A month from now? A year from now? A lifetime from now? There's this feeling that they were hoping we could look through a magic crystal ball in which some clinicians, through advances in clinical psychology, say 'Here! This one! We better take their gun because this one's going to be bad one day.' We don't have that kind of crystal ball."
Those interviewed for this story said if they believed a patient would harm themselves or others, and that patient had access to guns, it would be imperative to remove them right away. But the system set up under the SAFE Act doesn't do that. The old system worked, they argued, because professionals were calling police.
Calling the authorities prompts - or should prompt - immediate intervention. Law enforcement picks up the patient, takes them to an emergency room and orders a psychiatric evaluation.
Referrals under the SAFE Act prompt action after a series of steps - each requiring professional judgment at the county and state level.
The first step is a mental health professional filing a report through a secure online application known as the Integrated SAFE Act Reporting System. They enter any clinical evidence, history and risk factors that caused them to believe a patient is likely to engage in conduct that would result in serious harm, either to the patient or to or others.
Each county's director of community services, or someone else designated for the task, monitors reports made in their county and decides whether they are credible enough to pass on to the state Division of Criminal Justice Services. The information passed on is non-clinical, to protect the patient's privacy but allow the state official to determine if the person has a firearms license. If they do, the DCJS will report that information to the local firearms licensing official, who must suspend or revoke the license. If the patient doesn't have a license, the information can be used to determine whether they are eligible for one in the next five years.
All information is destroyed five years after it's received.
"The key problem with the SAFE Act reporting requirement is that the report is made to the local county or city director of community services - a government employee who has no law enforcement capabilities to intervene to prevent possible harm," the NYSPA said in its release. "In turn, the local director of community services may report to the state DCJS ... however, neither the local director nor the DCJS has the staff or authority to intervene and prevent the patient from harming self or others."
The system is already weighing heavily on the mind of one local director of community services.
Jim Gumaer is the lone person in charge of monitoring referrals made in Montgomery County - one of the smallest counties in the state. He has only received three or four reports, but he's already worried.
"The first report I got was on a patient they worried might commit suicide," said Gumaer, the county's director of community services. "At first, I just passed it on to DCJS. It was very credible. They had suffered from severe depression, dropped out of treatment, had had addictions. But then I became concerned. I realized it's one thing to take somebody's gun away from them. It's another thing to send police out to get them."
A few hours after he made the report, it dawned on him: "This could be a serious suicide risk." So he called 911.
It's possible the mental health professional had already done that - Gumaer doesn't know. But he's worried that if he steps away from his computer for an hour, he might miss something critical. So he's in the process of arranging a system with St. Mary's Hospital in Amsterdam to have staff monitor reports, as well.
Dr. Stephen Giordano, director of community services in Albany County, said reporting a person under the new provisions doesn't eliminate the health provider's responsibility for calling police or arranging for hospitalization in a crisis.
"A SAFE Act report, in fact, is not an emergency tool," he said.
About 10 to 12 reports trickle into the system on any given day in Albany County, said Giordano, who has worked in the county's Mental Health Department for the past 25 years. He has two other members on staff acting as designees to help manage the reports, but he finds the task assigned to him questionable.
"In addition to the slow creep toward demonizing the mentally ill and potentially changing the therapeutic relationship, the other elephant in the room is the unfunded mandate aspect of the SAFE Act," he said in an email. "Counties have to dedicate resources to this task with no additional resources at a time and an in an environment where mental health services are already stretched to meet community need across the state."
There is some hope for more resources, announced in President Obama's budget proposal this week. His proposal includes $235 million for new mental health programs, with initiatives focused on helping schools to detect early warning signs and training thousands of new mental health providers. It's the first time a White House budget has included these programs.
In the meantime, most SAFE Act reports are coming in from hospitals, said local officials, which could indicate some level of discomfort by private practice psychiatrists never before mandated to report patients - even to law enforcement. And the reports coming in appear to be relying on varying levels of seriousness and imminence, said Saratoga County Mental Health Director Hans Lehr.
"Different institutions are using different standards," he said. "Ellis Medicine and Albany Med and Saratoga Hospital and Glens Falls [Hospital] may in fact interpret the standard differently, and that can't be avoided when you ask people to make a professional judgment call."
Any new law takes some time to work out, though, he added.
"This is brand new," he said, "and everybody's kind of figuring it out as they go. To expect that this is going to be implemented perfectly the day after this gets enacted, that's not a reasonable expectation."