IJ: Sen. Carlucci May Hold Statewide Hearings on MH Report Requirements in SAFE Act

NYAPRS Note: The mental health reporting requirements in NY’s recently approved SAFE Act continue to trouble a variety of professional, patient and county leaders to the point where Senate Mental Health Committee chairman David Carlucci is considering holding statewide hearings.

Mental Health Officials Troubled By NY Gun-Control Law

Professionals Lobby For Changes To Reporting Standards

by Jessica Bakeman Ithaca Journal March 30, 2013

ALBANY— Psychiatrists and county and law enforcement officials are questioning a portion of New York’s gun control law that requires them to take steps that could lead to firearms being seized from potentially dangerous people they encounter or counsel.

Since a mid-March effective date, the state’s Secure Ammunition and Firearms Enforcement Act (SAFE Act) has required mental health treatment providers to report to their county governments when a patient is a potential danger to himself or others.

Once approved by the county, the report is sent to the state for entry into a database. Local law enforcement must then suspend or revoke any gun licenses issued to people in the database and, if necessary, remove their firearms.

Gov. Andrew Cuomo has touted the reporting requirements outlined in the law, saying they will keep guns out of the hands of the dangerously mentally ill and prevent the type of mass shootings that have struck the state and nation.

But the parties who must participate in the process said it was hastily designed and broadly written.

“When someone drops a whole new set of rules out of the sky, and there isn’t a whole lot of time to discuss them or consider them or appreciate the many dimensions that may be played out in this, it becomes really entangling,” said Eric Caine, chairman of the psychiatry department at the University of Rochester Medical Center. “You trip up on a lot of stuff.”

Mental health and other medical groups have pushed for amendments that they said would promote consistency with previously existing laws and diminish potential liability. The groups had hoped to see the changes made in the budget, which included tweaks to other parts of the law.

“We think these technical changes fall within the realm of what the leaders have indicated they’re willing to discuss,” Liz Dears, the state Medical Society’s senior vice president for governmental affairs, said while budget negotiations were ongoing.

Changes sought

Cuomo, who signed the gun law Jan. 15, has suffered harsh criticism since passing the measure, which is considered the toughest gun control law in the nation. Gun-rights groups said it violates the Second Amendment, and there are two lawsuits pending.

Cuomo agreed with legislative leaders on a few changes to the law in the budget. But he was adamant the state would make only “technical” amendments.

“I am not open to any substantive changes on the law, period,” Cuomo said when asked March 20 about the proposed changes to the mental health requirements. “No substantive changes have been entertained.”

Sen. Jeff Klein, D-Bronx, who supports the SAFE Act, doesn’t expect mental health changes, he said during a Tuesday interview with Gannett’s Albany Bureau. Klein heads the Independent Democratic Conference, which shares power in the Senate.

“I don’t think it’s too much to ask a mental health professional that if one of their patients tells them that they are going to commit harm to themselves or somebody else that they have a duty to report it,” he said. “That’s common sense.”

Senate Mental Health Committee Chairman David Carlucci, New City, Rockland County, said he’s considering holding hearings throughout the state to explore the effects of the law on treatment.

At the hearings, the committee and advocates would discuss “how we can make sure that we’re delivering the best services to residents around New York state and we’re not impeding access or having a stigma attached to mental illness,” he said.

Reporting standards

The state Medical Society and the Psychiatric Association petitioned the governor for changes in early March, before the provisions took effect. Patients’ advocates, nurses and social workers have since joined the lobbying effort.

Primarily, the groups are arguing for changes in the law’s reporting standards because they vary from criteria that has previously governed treatment providers’ actions.

Typically, if a therapist believes a patient presents “a serious and imminent threat” to the health and safety of himself or others, the professional may report the patient to law enforcement or a potential victim without breaching confidentiality.

Under the SAFE Act, the therapist must report “when in their reasonable professional judgment,” the patient “is likely to engage in conduct that would result in serious harm to self or others.”

The state Office of Mental Health, which has issued guidance materials, including a 22-minute video tutorial on how to use the online reporting portal, maintains the standard is the same.

Caine, who heads the University of Rochester suicide-prevention research center, agrees. But he said therapists are “confused” about the standard and will over-report as a result.

“Clinicians, not really understanding the nature of the law, may report people that the law never had the intention of being reported, and in the process, destroy all sorts of trust that might be there,” he said. “We’re not sure at all that it’s going to make anybody safer, and it may have unintended consequences.”

In the letter to Cuomo dated March 1, mental health groups wrote that the existence of two standards would lead to the reporting of people who would never require hospitalization and deter people with mental illnesses from seeking treatment.

Therapists’ chief concern has been that patients who were feeling suicidal or homicidal might conceal their troubles to avoid having their guns removed.

The state Nurses Association wrote in a March 13 memo to Cuomo that the law stigmatizes mental illness by linking it to gun violence, creating barriers for those who need treatment. The groups also believe the language in the SAFE Act could make health officials vulnerable to lawsuits.

The law shields therapists from civil and criminal liability when the decision to report is made “reasonably and in good faith.” But medical professionals want the law changed to protect them from liability unless they exercise “malice or intentional misconduct,” which is harder to prove in court.

Who reports

Also at question is who should be required to report. The law states that physicians (including psychiatrists), psychologists, registered nurses and licensed clinical social workers are obligated to make reports.

Experts argue that nurse practitioners, who have a higher level of education, should be included, rather than registered nurses.

“The scope of practice of RNs does not extend to making the diagnosis and prognosis necessary to evoke a report,” the Medical Society and Psychiatric Association wrote in the March 1 letter.

The Nurses Association also objected in its memo, urging for an amendment that would relieve non-nurse practitioners from the requirement.

“Without the additional training, certification and ongoing education and experience in reporting at-risk individuals, mental health RNs (non-nurse practitioners) would be subject to liability that is inconsistent with current law,” the memo said.

Cuomo has responded to criticisms from the mental health community, arguing the law allows therapists a choice of whether to report. In addition to the local groups’ concerns, the U.S. Department of Veterans Affairs have said they won’t comply with the law.

“The law prescribes that it’s basically in the discretion of a mental health provider, and if a mental health institution says they have confidentiality, they have secrecy, they don’t want to share information - that’s their business,” Cuomo said during a news conference March 20. When pressed that the law constitutes a requirement - not an option - for reporting, Cuomo said he couldn’t imagine a situation where a therapist would choose not to report a dangerous person.

Counties as middlemen

Under the law, after a report is made, county mental health officials review it. If they agree that the patient is dangerous, they forward the report to the state Division of Criminal Justice Services.

County officials want to be removed from the process, suggesting that therapists should report directly to the state instead, the state Conference for Local Mental Hygiene Directors wrote in a February memo of opposition.

For one, the process will be time-consuming and is an unfunded mandate, said Kelly Hansen, the group’s executive director. Hansen also questioned the clinical value of the county officials’ involvement.

“If the person isn’t known to you - which, outside of a rural county, it’s very unlikely that they would be - why would anyone ... question the clinical judgment of the person who has laid eyes on the patient and is treating them?” Hansen said.

Arthur Johnson, Broome County mental health commissioner, handled a few reports during the first week that the reporting requirements were in effect. He said approving the reports and forwarding them to the state has been generally simple, although he did encounter a few glitches.

For one, there is a class of master’s level psychologists who are authorized to make a report but who are not licensed by the state. While the reporting system automatically verifies the licenses of physicians, nurses and social workers, Johnson said his staff had to track down an unlicensed psychologist to confirm the professional’s report was valid.

Johnson said he and his colleagues in other counties told the state they want the ability to track the reports so they can make sure they’ve been processed.

“The professional making the report is exempt from liability, but the county is not,” he said. “So we don’t want any (reports) to fall through the cracks.”

Taking a gun

Law enforcement will get involved at the end of the process, when the state has identified whether reportedly dangerous individuals hold firearms licenses.

Putnam County Sheriff Donald Smith, who is the immediate past president of the state Sheriff’s Association, said deciding whether to suspend or revoke a gun license and removing firearms is already part of his job. Sheriffs carry out orders to retrieve firearms from those who have been served with restraining orders, he said.

“We know our citizens. We know our counties,” Smith said, “so we strongly believe that the sheriffs would be deeply involved in the whole process.”

Smith said seizing guns from mentally ill people might prove a dangerous task, but sheriffs are trained for it.

“The action that we take is in accordance with the situation that we’re presented with,” Smith said. “If it’s a more dangerous situation, we take the appropriate precautions.”