OMH Releases SAFE Act Reporting Guidance, March 12 Webcast Scheduled

NYAPRS Note: The NYS Office of Mental Health has released the following guidance on how the state intends to implement the NY Safe Act’s reporting requirements. More details will be provided on a webcast that will be aired March 12 and archived thereafter.

While some advocates are urging a delay in the program’s start date to allow the state to consider some modifications and clarifications, the program is currently scheduled to take effect a week from this Saturday.

New York Secure Ammunition and Firearms Enforcement Act FAQ's

Q: When does the new reporting requirement under MHL 9.46 become effective?

A:The reporting requirement becomes effective on March 16, 2013.

Q: What does the new MHL 9.46 require be reported?

A:MHL 9.46 requires mental health professionals to report to their local director of community services ("DCS") or his/her designees when, in their reasonable professional judgment, one of their patients is"likely to engage in conduct that would result in serious harm to self or others."

Q: Who is required to report under MHL 9.46?

A:The reporting requirement extends to "mental health professionals," defined in the law as four professions - physicians (including psychiatrists), psychologists, registered nurses, or licensed clinical social workers.

Q: Who is potentially a subject of an MHL 9.46 report?

A:All persons receiving mental health treatment services from any of the four types of mental health professionals identified in the law, regardless of the setting in which they work, may be subjects of 9.46 reports.

Q: Does the reporting requirement apply to mental health professionals working in private practice, on general hospital wards, or other locations outside of psychiatric wards?

A:Yes, the requirement to report is not dependent upon the location of the treating professional or the patient.

Q: Are there exceptions to this reporting requirement?

A:Yes. A report is not required when, in the mental health professional's reasonable professional judgment, a report would endanger him or her or would increase the danger to the potential victim or victims.

Q: What if there are several mental health professionals treating a particular individual - are all of them required to make a report?

A:Reports under MHL 9.46 are made using a clinician's reasonable professional judgment. Different clinicians treating the same individual may not agree, which should not prevent any one, or all, of them from making a report.

Q: What information about the patient should be reported by mental health professionals?

A:Mental health professionals should convey information necessary to allow the DCS to review the matter and determine if a report to the NYS Division of Criminal Justice Services (DCJS) is required (e.g., what clinical evidence, history, and risk factors have caused the mental health professional to conclude that the patient is likely to engage in conduct that would result in serious harm to self or others).

Q: Are such reports in compliance with HIPAA?

A:Under HIPAA, because these informational disclosures are required by law, they can be made without the patient's consent. HIPAA 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.

Q: When should a mental health professional make a report?

A:The mental health professional should make a report as soon as possible.

Q: What information will a local DCS report to DCJS, and what can DCJS do with such information?

A:A local DCS may only disclose a patient's name and other non-clinical identifying information (e.g., date of birth, race, sex, SSN, address) to DCJS, and that information can be used by DJCS to determine if the patient has a firearms license.

If the patient has a firearms license, DCJS will report that information to the local firearms licensing official, who must either suspend or revoke the license. The information may also be used in connection with a determination of firearms license eligibility should the subject of the report apply for a firearms license in the subsequent five years.

Q: How long will DCJS retain the personal information they receive?

A:DCJS must destroy information received five years after receipt.

Q: Mental health professionals must make reports when, in their professional judgment, it is believed that the patient is "likely to engage in conduct that could seriously harm the patient him/herself or others." What does that mean?

A:The standard "likelihood to result in serious harm" means threats of, or attempts at, suicide/serious bodily harm to self, or homicidal/violent behavior towards others. This standard justifies the need for immediate action, as a public safety measure, to prevent harm. Mental health professionals must use reasonable professional judgment when making this determination.

In general, a MHL 9.46 report would originate if the clinician determines the person is likely to engage in conduct that could seriously harm the patient and/or others (which could thus also trigger a MHL 9.45 emergency assessment). It is not, however, necessary to establish that the patient has a gun before making the report.

Q: Can mental health professionals who make a determination to report or not to report be held liable?

A:The new law specifically provides that if a mental health professional uses "reasonable professional judgment" and "good faith" when making a determination, this decision cannot be the basis for any civil or criminal liability on the part of that professional.

For more information and to submit any questions or concerns on the MHL 9.46 reporting requirements, please contact your professional association directly.

Comments or questions about the information on this page can be directed to theNY SAFE Act.


SAFE Act - Summary of Mental Health Issues

By OMH Counsel’s Office

The SAFE Act was signed into law by Governor Cuomo on January 15, 2013. The law includes new and amended laws designed to ensure the safe use of guns. This includes changes in licensing for gun owners; a State wide data base for firearms licenses; increased penalties for illegal gun use; bans on certain high capacity magazines; requiring federal background checks for the private sale of guns; and requirements for safe storage of guns. Additionally, the SAFE Act made changes to provide that certain individuals who are mentally ill and considered imminently dangerous by a mental health professional cannot retain or obtain a firearm. This summary will discuss the provisions which will impact mental health services in New York State.

The SAFE Act added Section 9.46 to the Mental Hygiene Law (MHL) and becomes effective on March 16, 2013. It requires licensed mental health professionals, defined as physicians, psychologists, registered nurses or licensed clinical social workers, who are currently treating an individual to notify the county Director of Community Services (DCS), or designee, if they believe the individual is “likely to engage in conduct that would result in serious harm to self or others.” If the DCS agrees that the person is likely to engage in such conduct, then the DCS, or designee, must report names and other identifying information to the Division of Criminal Justice Services (DCJS). DCJS may only use this data for the purpose of determining whether a person is ineligible for a firearms license issued pursuant to Section 400.00 of the Penal Law or is no longer permitted to possess a firearm under state or federal law.

The decision made by the mental health professional under Section 9.46 cannot be the basis for civil or criminal liability, as long as the decision is made reasonably and in good faith. Furthermore, no action is required if, in the exercise of reasonable professional judgment by the mental health professional, such action would endanger such mental health professional or increase the danger to a potential victim or victims.

Once the DCS provides this information to DCJS, DCJS pursuant to an amendment of Section 400.00 of the Penal Law, and Section 7.09 (j) of the MHL, must disclose such information to an appropriate licensing official, if it is determined that the individual does possess a firearms license. At that point, the licensing official will suspend or revoke the license. The individual must then surrender the license and any firearms, rifles or shotguns owned or possessed by such individual to an appropriate law enforcement agency. If such items are not surrendered, a police officer may remove them.

Section 400.00 of the Penal Law was further amended to not allow a firearms license to be issued to an individual who was involuntarily committed to a facility under the jurisdiction of an office of the Department of Mental Hygiene pursuant to Article 9 or 15 of the MHL, Article 730 or Section 330.20 of the Criminal Procedure Law, Section 402 or 508 (2) of the Correction Law, Section 322.2 or 353.4 of the Family Court Act or who has been civilly confined in a secure treatment facility pursuant to Article 10 of the MHL. The SAFE Act also amended section 7.09 MHL to allow the DCJS to re-disclose the data and records collected from OMH to assist in determining whether a firearms license should be denied, suspended or revoked and for determining whether a person is no longer permitted under federal or state law to possess a firearm.

Subdivision j of section 7.09 MHL was also amended by the SAFE Act to extend the current Certificate of Relief Process to include individuals who have been or may be disqualified from continuing to have a license to carry, possess, repair, or dispose of a firearm because such person was involuntarily committed or civilly confined to a facility under the jurisdiction of the Commissioner of OMH. The certificate of relief process was originally put in place to allow individuals who have been denied the ability to purchase a firearm under federal law and whose records were provided to the National Instant Criminal Background Check System by the OMH, due to an involuntary commitment in New York, to petition for relief from that disability.

Changes were also made to assisted outpatient treatment (AOT) by the SAFE Act. Sections 9.47 and 9.48 MHL were amended to clarify that it is the responsibility of the DCS to evaluate the need for continued AOT prior to the expiration of an AOT order. Sections 9.47 and 9.48 MHL were also amended to make it clear that when an AOT patient changes residence to a new county, it is the responsibility of the DCS in the new county of residence to implement the AOT order. The director of an assisted outpatient treatment program is also required to notify the DCS in the new county of residence when he or she has reason to believe that the assisted outpatient will change his or her residence during the pendency of an AOT order.

Additionally, the SAFE Act provides that initial AOT orders shall be one year in duration as opposed to the current six month period and gives the DCS the authority to file a petition for renewal of an AOT order even when an AOT patient is missing and cannot be evaluated prior to the expiration of the existing order.

The Correction Law was also amended to require the director of Central New York Psychiatric Center to evaluate each inmate due to be released from state prison to determine whether the individual meets the criteria for an AOT order. If the director determines that the individual does, then he or she must file a petition for such order or make an AOT referral to the DCS in the county where the inmate is expected to reside.

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