ºÚÁÏÕýÄÜÁ¿ Note: Yesterday’s ºÚÁÏÕýÄÜÁ¿ Albany Legislative Day drew 700 enthusiastic mental health advocates from across ºÚÁÏÕýÄÜÁ¿ 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.
ºÚÁÏÕýÄÜÁ¿ is calling on state officials to close this loop before the law is implemented.
Ìý
Gun Law vs. Mental Health
Reporting Mandate about Possible Threats of Harmful Conduct Raises Privacy Issues
ByÌýRick KarlinÌý Albany Times Union January 30, 2013
Ìý
ALBANY – Mental health advocates and professionals are pushing back against Gov.Ìý‘s assault weapon ban by questioning whether a new reporting requirement conforms to federal privacyÌýrules.
Ìý
“That’s very alarming to people,”Ìý, executive director for the stateÌýÌýsaid 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 harmfulÌýconduct.
Ìý
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 theyÌýhold.
Ìý
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-relatedÌýissue.
Ìý
Cuomo administration officials stressed that local mental health officials who receive such lists will be bound by federal privacyÌýrules.
Ìý
The stateÌý, 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 medicalÌýrecords.
Ìý
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 “imminentÌýthreat.”
Ìý
Additionally, the Psychiatric Association notes that HIPAA mandates reports go to a person who can reasonably mitigate the immediateÌýthreat.
Ìý
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 enforcementÌýauthorities.
Ìý
“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 memoÌýsaid.
Ìý
Cuomo spokesmanÌýÌýdisagreed, saying the SAFE Act adheres to federalÌýlaw.
Ìý
“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 aÌýstatement.
Ìý
And while the state branch of theÌýÌýhas 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 reportingÌýrequirement.
Ìý
As advocates for the mentally ill were detailing their concerns, the law came under a legal challenge in Erie County, where Hamburg lawyerÌýÌýfiled an Article 78 proceeding – essentially a lawsuit against theÌýgovernment.
Tresmond acted on behalf of two local gun owners,ÌýÌýandÌý.
Ìý
“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-capacityÌýmagazines.
Ìý
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 ofÌýproperty.
Ìý
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 theÌýLegislature.
Ìý
“I respect Gov. Cuomo very much, but this onerous gun law is just incredible,” heÌýsaid.
Ìý
Additionally, the stateÌýÌýserved 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 thisÌýpoint.
Ìý