NYAPRS Note: Yesterday’s NYAPRS Albany Legislative Day drew 700 enthusiastic mental health advocates from across New York to share their state budget and policy concerns with state legislators.
High among those concerns were fears that the new SAFE Act’s reporting requirements might lead to privacy violations. While the policy seems aimed at placing the names of people who are assessed by clinicians as being a potential danger to self or others in a registry for the sole purpose of canceling their gun licenses and appropriating their guns, the law apparently leaves some room open for the information to be shared more broadly... by state police, for example.
We’re already worried about the law’s unintended impact to deter people from seeking help or fully trusting and disclosing with their therapists. But if that reports about ‘at risk’ individuals are being collected only around gun related issues, then let’s make explicitly sure it doesn’t get shared any more broadly. No one wants a state trooper who’s pulled them over for speeding to see their mental health history alongside their previous driving history.
NYAPRS is calling on state officials to close this loop before the law is implemented.
Gun Law vs. Mental Health
Reporting Mandate about Possible Threats of Harmful Conduct Raises Privacy Issues
By Rick Karlin Albany Times Union January 30, 2013
ALBANY - Mental health advocates and professionals are pushing back against Gov. Andrew Cuomo's assault weapon ban by questioning whether a new reporting requirement conforms to federal privacy rules.
"That's very alarming to people," Harvey Rosenthal, executive director for the state Association of Psychiatric Rehabilitation Services said of a provision of the Secure Ammunition and Firearms Enforcement Act requiring mental health providers to alert officials if they believe a person is apt to engage in harmful conduct.
The provided names will then be cross-checked against a state database of people who have registered their weapons. Law enforcement officials would then have the option of removing weapons from that individual, and suspending or revoking any gun permits they hold.
Rosenthal said he believes there is always a danger that the information might fall into the wrong hands, or end up prejudicing police or other authorities who come in contact with someone over a non-gun-related issue.
Cuomo administration officials stressed that local mental health officials who receive such lists will be bound by federal privacy rules.
The state Psychiatric Association, in a memo on the new law, offers concerns that the reporting requirement could run afoul of the federal Health Insurance Portability and Accountability Act that safeguards medical records.
While SAFE requires reporting of people when there is reason to believe they could serious harm to themselves or others, HIPAA reserves such actions for an "imminent threat."
Additionally, the Psychiatric Association notes that HIPAA mandates reports go to a person who can reasonably mitigate the immediate threat.
The state law, however, mandates that the initial report go to a "director of community services," who would then pass the information on to state law enforcement authorities.
"By the time this cumbersome process works its way through the levels of bureaucracy, one can easily imagine that a tragedy may have already occurred," the Psychiatric Association memo said.
Cuomo spokesman Richard Azzopardi disagreed, saying the SAFE Act adheres to federal law.
"All reporting will be conducted in the strictest confidence in accordance with state and federal confidentiality requirements - as are current standards regarding the reporting of an imminent threat of physical harm, child abuse or similar circumstance," he said in a statement.
And while the state branch of the National Association of Social Workers has noted that numerous people working in the mental health field for the state are not licensed social workers, Azzopardi said unlicensed employees working on mental health issues are under the supervision of licensees such as psychiatrists or psychologists, who will have to follow the reporting requirement.
As advocates for the mentally ill were detailing their concerns, the law came under a legal challenge in Erie County, where Hamburg lawyer James Tresmond filed an Article 78 proceeding - essentially a lawsuit against the government.
"The legal action is now in play," Tresmond said, explaining that he believes the law should be overturned or amended to take out the section that bans possession of high-capacity magazines.
The law mandates owners of high-capacity magazines must within a year sell them out of state, turn them over to authorities or retrofit them in such a way that they can't hold more than seven rounds. Tresmond said he believes that section of the law could violate the Fifth Amendment against unlawful taking of property.
Tresmond stressed that he's not a gun enthusiast, but decided to take the case on a pro bono basis because he disliked the way it was hurried through the Legislature.
"I respect Gov. Cuomo very much, but this onerous gun law is just incredible," he said.
Additionally, the state Rifle and Pistol Association served the attorney general's office with a notice Tuesday that they intend to sue. Tresmond said he received an offer of financial help from gun manufacturers such as Beretta, but stressed he's taking the case at no charge at this point.