The New York State SAFE Act stops criminals and the dangerously mentally ill from buying a gun by requiring universal background checks on gun purchases, increases penalties for people who use illegal guns, mandates life in prison without parole for anyone who murders a first responder, and imposes the toughest assault weapons ban in the country. The Office of NICS Appeals and SAFE Act provides the guidance to mental health professionals on reporting requirements.
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.
Q: IS MHL § 9.46 applicable to OASAS certified treatment programs?
A: It depends on what type of service is being provided. MHL § 9.46 applies if the mental health professional is providing mental health services in an OASAS certified program. These reports must be made consistent with the federal confidentiality rules (42 CFR Part 2) which prevent disclosure of information that would identify an individual as receiving substance use disorder services without consent. No confidentiality concerns are raised if the mental health professional is able to make the report without identifying that the patient is receiving substance use disorder services.
MHL § 9.46 does not apply to services provided in an OASAS certified program when a mental health professional (as defined in the law) is solely providing substance use disorder services to the patient.
Q: Can Physician's Assistants submit a report?
A: For now, Physician's Assistants should not submit, but if they are aware of a threat, should locate a member of the treatment team that is permitted to submit and notify them of the threat.
Q: Under what Profession Type should Nurse Practitioners submit?
A: Nurse Practitioners are always licensed as registered Nurses by the NYS Education Department and should submit as a Registered Nurse with their RN license number.
Q: How should a Mental Health Professional record on a person's race if they are Hispanic?
A: They should check the "Other" box.
For more information and to submit any questions or concerns on the MHL 9.46 reporting requirements, please contact your professional association directly.
Guidance for mental health professionals and Article 28 and 31 hospitals regarding Mental Health Law Section 9.46 and the SAFE Act.
