Public Hearing: To Look at the Implementation and Impact of the Mental Health Requirements in the New York Safe Act

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON MENTAL HEALTH AND 2 DEVELOPMENTAL DISABILITIES 3 ------------------------------------------------------ 4 PUBLIC HEARING: 5 TO LOOK AT THE IMPLEMENTATION AND IMPACT OF THE

MENTAL HEALTH REQUIREMENTS IN THE NEW YORK SAFE ACT 6

------------------------------------------------------ 7 8 250 Broadway, 19th Floor

Senate Hearing Room 9 New York, New York 10007 10 May 31, 2013

2:00 p.m. to 5:00 p.m. 11 12 13 PRESIDING: 14 Senator David Carlucci

Chair 15 16 SENATE MEMBERS PRESENT: 17 Senator David J. Valesky 18 19 20 21 22 23 24 25 1

SPEAKERS:PAGE QUESTIONS 2

Jed Wolkenbreit 4 19 3 Attorney

Conference of Local Mental Health 4 Hygiene Directors 5 Dr. Glenn Martin 24 34

President 6 Seth Stein

Executive Director, and General Counsel 7 New York State Psychiatric Association 8 Carla Rabinowitz 42 48

Public Policy Chair 9 NYAPRS 10 Mary Beth Anderson 49 54

Project Director 11 Urban Justice Mental Health Project 12 Jason Lippman 54 58

Senior Associate for Policy & Advocacy 13 Coalition of Behavioral Health Agencies 14 Dr. Eric Neblung 59 64

President 15 Jerry Grodin, Ph.D.

Director of Professional Affairs 16 New York State Psychological Association 17 Ari Moma 66 74

Registered Nurse, on behalf of 18 New York State Nurses Association 19 Beth Haroules 75 88

A Senior Staff Attorney 20 New York Civil Liberties Union 21 Kim Williams 92 98

Director of the Center for Policy, 22 Advocacy, and Education

Mental Health Association of New York City 23 24 ---oOo--- 25 1 SENATOR CARLUCCI: Good afternoon. 2 I want to thank everyone for coming today. 3 I'm Senator David Carlucci, the Chairman of 4 the Mental Health and Developmental Disabilities 5 Committee. 6 I want to thank you for attending this 7 important hearing to address the mental-health 8 components of the SAFE Act. 9 The goal here today is to hear from all of 10 you, as respected members of your field serving 11 people with mental-health issues, to make sure that 12 the purpose of this law, the SAFE Act, to save 13 lives, to protect people, to make sure that there 14 isn't an undue burden, in terms of servicing people 15 that need treatment for health with their issues, 16 make sure that there is not a stigma attached. 17 And just, again, I want to thank you. 18 I know your time is valuable, so we'll move 19 through this hearing quickly. 20 Today I'm joined by Senator Valesky, and I'll 21 let Senator Valesky say a few words. 22 SENATOR VALESKY: Thank you very much, 23 Mr. Chairman. I appreciate the opportunity join 24 you here today. 25 I represent the Syracuse area in the 1 State Senate, and these issues and the 2 implementation of the SAFE Act, and its impact on 3 the mental-health community, is certainly a 4 statewide issue. 5 So I appreciate Chairman Carlucci's 6 leadership on this issue, and in conducting this 7 hearing, and in taking a leadership role as a new 8 Chair of this Committee, and he's been very active. 9 And I appreciate his advocacy on behalf of 10 the entire mental-health community. 11 And I'm looking forward to hearing your 12 testimony. 13 Thank you. 14 SENATOR CARLUCCI: Thank you, 15 Senator Valesky. 16 We're going to start with our first speaker, 17 who's from the Conference of Local Mental 18 Health [sic] Hygiene Directors, Jed Wolkenbreit, who 19 is the counsel. 20 Jed. 21 JED WOLKENBREIT: Thank you, Senator. 22 First of all, thank you for the opportunity 23 to address you this afternoon. 24 My name is Jed Wolkenbreit. I am the counsel 25 to the New York State Conference of Local Mental 1 Hygiene Directors, commonly known as 2 "The Conference." 3 The Conference is a statutory organization 4 established pursuant to Section 4110 of the 5 Mental Hygiene Law, whose only members are the 6 directors of community services for the city of 7 New York and the 57 other counties in the state. 8 As you know, Article 41 of the Mental Hygiene 9 Law requires that each local government establish a 10 subdivision known as "a local governmental unit," 11 or, an "LGU," to act as the policymaking arm of 12 local government in the areas of mental health, 13 developmental disabilities, and chemical abuse. 14 It is The Conference's role to act as the 15 statewide spokesperson for these local governmental 16 units. 17 And on a personal note, I would like to 18 extend our best wishes from our chair, who's the 19 Commissioner of Onondaga County, Bob Long, Senator. 20 On January 15th, as you know, Governor Cuomo 21 signed the New York Secure Ammunition and Firearms 22 Enforcement Act, commonly known as the 23 "New York SAFE Act," into law. 24 Section 20 of the law adds a new section, 25 946, to the Mental Hygiene Law, which requires that 1 when a mental-health professional -- defined in the 2 law as a physician, a psychologist, a licensed 3 clinical social worker, or a registered nurse -- who 4 is currently providing treatment services to a 5 person determines, in the exercise of reasonable 6 professional judgment, that the person is likely to 7 engage in conduct which would cause or result in 8 serious harm to self or others, that professional 9 shall report the name of that person to the director 10 of community services. 11 The director must then agree or disagree with 12 the report. 13 And if he or she say agrees, then they report 14 that on to the Division of Criminal Justice Services 15 to be entered into a database, for purposes of 16 either suspending or revoking that person's gun 17 permit, or, ultimately, preventing that person from 18 receiving a new permit. 19 As you know, there is no specificity in the 20 statute as to how the procedure was intended to be 21 implemented, nor, in fact, was any money 22 appropriated to implement it. 23 So on January 15th, our local governments 24 were told that we had 60 days to implement this 25 system, and we would be given no extra resources to 1 do so. 2 Initially, it was assumed that there would be 3 58 different systems of reporting throughout the 4 state. 5 Fortunately, the State Office of Mental 6 Health worked with The Conference to develop what 7 has become known as the "Integrated SAFE Act 8 Reporting System," or, "ISARS," which is a portal 9 which creates a single system for all mental-health 10 professionals to file their 946 reports. 11 ISARS went live in an abbreviated form on 12 March 16th, and continues to be in the state of 13 development. 14 The ISARS system requires the reporter to 15 give enough personal information so that a 16 determination can be made that the person who is 17 reporting is, in fact, an authorized reporter, one 18 of the four professions authorized under the 19 statute, and it allows the reporter to give enough 20 clinical information so the DCS can either agree or 21 disagree that the person being reported meets the 22 criteria of the statute. 23 Indeed, much credit is due to the IT team at 24 State Office of Mental Health, for really 25 accomplishing this portal in a relatively short 1 period of time. 2 A two-month period to develop a whole new 3 system like this is -- especially in state 4 government, with all due respect, is almost unheard 5 of. 6 As we read the statute, DCS needs to be 7 assured of four things: 8 First, that the report made by the person 9 defined as the mental -- is made by a person defined 10 under the statute as a "mental-health professional"; 11 Secondly, that the DCS is satisfied that the 12 mental-health professional has independently 13 exercised reasonable professional judgment; 14 And, third, has determined that the patient 15 is likely to engage in the dangerous conduct set 16 forth in the statute; 17 And, finally, the report must indicate that 18 the mental-health professional is currently 19 providing treatment services at the time that the 20 determination is made. 21 We believe that if one of those criteria is 22 not present, then the DCS should disagree with the 23 report and not report it on to DCJS. 24 From the outset, most DCSs (directors of 25 community service) throughout the state, have 1 believed, and we still believe as The Conference, 2 and The Conference has advocated, that it was a 3 mistake to include the DCS to be responsible for 4 this type of screening. 5 We have taken the position from the start, 6 that local mental-health offices are not set up or 7 funded to carry out what is essentially a 8 criminal-justice responsibility, and we agree with 9 what has been said by many mental-health 10 professionals; namely, that this reporting 11 requirement interferes with the therapist's 12 relationship. 13 And, quite frankly, local governments do not 14 have the resources to carry out this unfunded 15 mandate in a responsible manner. 16 However, while The Conference still believes 17 that the DCS should not be involved in this 18 procedure, our members have tried to do their best 19 in carrying out their new obligations, under the 20 law. 21 As counsel to The Conference, much of my time 22 for -- frankly, for the last two and a half months, 23 has been spent dealing with questions and concerns 24 regarding the SAFE Act. 25 Since March 16th, there have been over 1 6,000 reports made through the ISARS system, with 2 about two-thirds of those coming from here in 3 New York City. 4 The vast majority, over 92 percent, come from 5 hospitals, primarily Article 28 hospital emergency 6 departments and psychiatric units. 7 Although, more recently, State-operated 8 psychiatric centers have filed about a thousand new 9 reports, in bulk, into the system, a very small 10 percentage of the reports, about 5 percent, actually 11 come from outpatient providers, and an insignificant 12 number are being received from private 13 practitioners. 14 Until recently, DCSs have passed on to DCJS 15 about 90 percent of the reports that they have 16 received, but most recently, some issues have come 17 to our attention which are troubling, and have made 18 many DCSs very skeptical. 19 Those problems include the following: 20 One, some DCSs are receiving reports that 21 appear to be made by someone other than a 22 mental-health professional treating the patient. 23 This might be a person designated by the 24 hospital to make such reports, or, even in some 25 cases, by a computer-generated report coming out of 1 the admission -- the Electronic Health Records 2 System. 3 Technically, we believe such report is not 4 appropriate under the statute; 5 Secondly, there is a great deal of confusion 6 about the intent of the statute as the language was 7 somewhat unclear. 8 For example, for some period of time, the 9 State took the position that all persons admitted to 10 a State psychiatric center met the criteria of 946 11 simply by virtue of their admission. 12 And for at least some period of time, all 13 such admitted persons were apparently being reported 14 en masse by computer-generated reports. 15 This is not even consistent with State Office 16 of Mental Health's published guidance, which has 17 indicated, that even though a person could meet the 18 2 PC standard, the normal standard for admission on 19 an involuntary basis, they might still not pose a 20 risk of harm that justifies reporting under the 21 946 standard. 22 Groups representing the Article 28 hospitals 23 have indicated to us that they are also concerned 24 with this procedure, and we all agree that not all 25 persons admitted for mental-health treatment meet 1 the criteria of 946. 2 It would have been useful for those of us who 3 deal with this system every day to have been called 4 upon for advice in drafting the language of statute, 5 and we remain available if changes are to be made; 6 Three, we are advised that, in some cases, 7 based on the potential risk -- based on potential 8 risk-management standards, hospital administrators 9 or hospital counsel have recommended or required 10 that all persons admitted to hospitals with a 11 mental-illness diagnosis be reported under 946. 12 In passing on a 946 Report, a DCS is required 13 by the law to make a judgment, which involves 14 weighing what is essentially an invasion of a 15 person's civil rights just because they're mentally 16 ill, against the legitimate need of the State to 17 protect the public. 18 The statute requires that this judgment be 19 based on a reasonable professional judgment, and 20 should be made on a case-by-case basis by a trained 21 professional who is treating a person. 22 Someone being admitted to a hospital merely 23 because of their inability to care for themselves 24 due to a mental illness or for medication management 25 is not, in most cases, likely to meet the criteria 1 of the statute. 2 In some cases, the numbers of reports are 3 simply just too staggering for any independent 4 evaluation to occur, so the DCS is required by 5 reality to accept the validity of the ISARS report. 6 Some DCSs are concerned that, in such cases, 7 it is possible that persons who do not meet the 8 requirements of the statute are being reported on to 9 DCJS, but without adequate resources, there is 10 little that we as DCSs can do; 11 Four, the statute, as written, contains no 12 specification regarding the age of a patient to be 13 reported. 14 Recently, DCSs have begun receiving numerous 15 reports, primarily from State hospitals, which 16 involve children who are as young as 11 years old. 17 Upon investigation, we determined that the 18 State Office of Mental Health is requiring all of 19 its hospitals, and advising Article 28 hospitals, to 20 report admissions of all 11-year-old children or 21 anyone older. 22 We are told that this is because, 23 theoretically, it is possible for a 16-year-old to 24 enter into military service with parental consent, 25 and to be potentially discharged, also at age 16, 1 and then apply for a gun permit. 2 And as you know, under Penal Law Section 400, 3 the age requirement for veterans is waived, and the 4 name remains in the database for five years. 5 So, therefore, 16 minus 5 is 11, so they've 6 begun reporting 11-year-olds. 7 Many members of The Conference feel that 8 placing the name of an 11-year-old emotionally 9 disturbed child into what is, essentially, a 10 criminal-justice database, is, in and of itself, 11 unconscionable. 12 But, to determine that the benefit of the 13 unlikely possibility that there might be a 14 16-year-old who had been emotionally disturbed at 15 age 11, and then managed to enlist in the military 16 at 16 with parental consent, and then was also 17 discharged at 16, because of some unknown reason, 18 might get a gun permit, is just, in our opinion, it 19 defies logic. 20 The Conference has written to 21 Commissioner Woodlock, outlining these issues, and 22 we expect to be meeting with her and her staff in 23 the near future to discuss and, hopefully, resolve 24 these issues. 25 We would also hope that the Legislature would 1 alleviate and correct this egregious practice; 2 Lastly, our members feel that the greatest 3 problem that we have with the SAFE Act is that it is 4 simply diverting too much time and resources from 5 other duties of the DCS for what we believe to be a 6 minimal return. 7 We are told that of the 6,000 reports that 8 have been filed, 11 have resulted in action. 9 And we believe that the amount of time and 10 energy involved in that, for people who would 11 probably have been found out during the appropriate 12 investigation, is simply not worth the diversion of 13 resources. 14 The large numbers of 946 reports are 15 diverting substantial time and energy away from an 16 already overburdened staff. 17 New York City alone has filed -- has received 18 over 3500 such reports already. 19 And in other larger counties in the state, 20 such as Syracuse, the range of reports are 50 to 21 100 reports per week. 22 Given that people who apply for gun permits 23 also have to undergo a formal investigation, we 24 believe that this is just simply not a good use of 25 what are, essentially, mental-health resources for 1 criminal-justice purposes. 2 And, finally, as a lawyer, and former counsel 3 to a legislative committee on mental health myself, 4 I cannot close without at least pointing out some of 5 the problems that I perceive with the statute, as 6 written: 7 First of all, the law defines "mental-health 8 professionals" as including all physicians and all 9 registered nurses, and does not require that the 10 mental-health professional actually be treating the 11 subject for a mental illness. 12 While we are interpreting it as such, it is 13 possible that some court might not. 14 And as the law was written, any physician who 15 is treating any patient for any reason, who 16 determines that the patient may be likely to engage 17 in dangerous conduct, could -- should be reported. 18 Theoretically, therefore, a dermatologist who 19 is treating an 11-year-old for acne, and is told by 20 the patient, "I hate my skin so much that I could 21 kill myself," could, in fact, be required to file a 22 946 Report. 23 And this, of course, makes no sense; 24 Secondly, the law does not say that the 25 likelihood of the danger must be imminent. 1 As you know, all the other provisions of 2 Article 9 of the Mental Hygiene Law that allow the 3 limitation of another's freedom, provide that there 4 must be some immediate danger to self or others. 5 And, here, the standard is only "likely to 6 engage in conduct." 7 Now, does that mean tomorrow? next week? next 8 year? 9 We have been interpreting it as meaning 10 immediate, but a court could undoubtedly interpret 11 it otherwise. 12 Indeed, the court of appeals has held that 13 the fact of mental illness does not result in the 14 forfeiture of a person's civil rights. 15 The courts will, of course, have the final 16 say, but I question whether placing someone's name 17 in what is, essentially, a criminal-justice 18 database, based on the SAFE Act standards, meets the 19 test, especially when the person is 11 years old. 20 The statute specifically limits liability for 21 the mental-health professional with regard to 22 reporting, but there is no such limit on liability 23 for the DCS or the local government in making 24 reporting decisions in good faith. 25 And we believe that that should be corrected; 1 And, finally, from the point of view of 2 government -- a local government, Section 946 is 3 simply another unfunded mandate of a growing and 4 potentially disastrous magnitude for which 5 localities are neither equipped nor funded to 6 implement. 7 If the statute's intent is simply to gather 8 names, then why have the DCS involved in the process 9 at all? 10 If the intent is to really clinically assess 11 each of these 6,000 reports, then either that should 12 be done by a state agency, or substantial resources 13 must be allocated to local governments to do it. 14 Since all gun-permit applications, as I said, 15 require investigation, we believe that this is 16 casting such a wide net, when it appears to 17 criminalize people simply who are suffering from 18 mental illness, and increases the very stigma which 19 we are all so hard trying to decrease. 20 So on behalf of The Conference of Local 21 Mental Hygiene Directors, I want to thank you all 22 for your efforts on behalf of the mentally disabled 23 of the state who depend on us to help them go 24 forward toward recovery, and for the opportunity to 25 share The Conference's views and perspectives on the 1 SAFE Act with you today. 2 As always, The Conference remains available 3 to you as a resource as you continue your work. 4 Thank you. 5 SENATOR CARLUCCI: Great, thank you, 6 Mr. Wolkenbreit. 7 Just a few quick questions, because the 8 testimony was pretty thorough, and I appreciate 9 that. 10 You talked about the 92 percent of the 11 reports are coming from hospitals. 12 And, what do you attribute that to? 13 JED WOLKENBREIT: Well, we've heard -- and 14 although this is all anecdotal, of course, we've 15 heard there's a substantial reluctance amongst 16 private practitioners. 17 I think, initially, there was not a lot of 18 knowledge on the part of many people that this 19 reporting requirement even existed. 20 I think that's becoming less of an issue. 21 But I think that there's -- that hospitals 22 clearly have the apparatus involved to have 23 explained it all to their physicians. 24 Hospital counsels are on it, obviously. 25 There's numerous organizations and 1 professional groups that have made that clear. 2 I think there's a lot of mental-health 3 professionals who firmly believe that, in treating 4 people on an outpatient basis, if they can handle it 5 on an outpatient basis, by definition, the person is 6 not really dangerous enough to require a report. 7 And I think there's a lot of reluctance upon 8 professionals to have the professionals get involved 9 in reporting, effectively, somebody to the police, 10 and merely because they're mentally ill. 11 SENATOR CARLUCCI: Now, has your organization 12 run some numbers in terms of, when we talk about the 13 mandated costs on local governments, what you 14 anticipate that this could cost local governments? 15 JED WOLKENBREIT: We did a study initially. 16 We anticipated it was about $11 million that it's 17 going to cost state governments. 18 And it's really become, you know, the problem 19 is, if you were to really review every report, it 20 would probably be more than that. 21 I mean, the fact that the State has, you 22 know, created the ISARS system has helped 23 substantially, and we're very thankful for that. 24 And I've commended them on numerous occasions, 25 publicly. 1 But, you know, it still requires the DCS 2 and/or his or her designee to sit there and go 3 through these things, or -- and that's not going 4 happen. 5 If you get 3500 reports, I mean, it would 6 require more staff than the mental-health department 7 has to -- you know, full time to be doing it. And 8 it's just not going to happen. 9 SENATOR CARLUCCI: In the -- out of the 10 6,000 cases that we're talking about, and the 11 11 actual cases that have come forward, could you 12 elaborate on those, what those were, a little more? 13 JED WOLKENBREIT: I haven't -- I don't -- 14 I've only gotten the statistics. 15 SENATOR CARLUCCI: Right. 16 JED WOLKENBREIT: I have no personal 17 knowledge. 18 SENATOR CARLUCCI: Have you seen, have you 19 gotten real information, in terms of, like, you 20 talked about the hypothetical case of the 21 dermatologist reporting someone? 22 Has there been any validity to that? 23 JED WOLKENBREIT: I don't think -- well, 24 there hasn't actually -- nothing that -- I mean, I'm 25 obviously exaggerating the point to make a point, 1 but, I think what has happened, in many cases, 2 though, is that, reports have been made of people, 3 because I think some mental-health professionals who 4 work for hospitals or for other, you know, entities 5 have been advised, basically, for the liability 6 purposes, that they have to report, so they're 7 reporting, when, in their own professional judgment, 8 it might not be appropriate. 9 And we have been told -- or, DCSs have been 10 told, in checking some of these reports, when 11 they've talked to the professional, and they call up 12 and said, "Why did you file this report? It doesn't 13 look" -- I mean, for example, just because somebody 14 had suicidal ideations does not necessarily mean 15 that they're dangerous, or that they're going commit 16 suicide. 17 And, you know, the professional would admit, 18 "Well, I don't really think, but I'm concerned not 19 to do it." And they're sort of being pushed into 20 making those reports. 21 SENATOR VALESKY: Just a couple quick 22 questions for you, and thank you for your testimony. 23 Is The Conference in any way engaged in, or 24 considering engaging in, drafting any potential 25 changes to the law? 1 JED WOLKENBREIT: We have suggested language 2 to both Houses of the Legislature and to the 3 Governor's Office, and at this point, we're being 4 told that no changes are being considered. 5 So, I haven't heard anything back. 6 SENATOR VALESKY: Okay. 7 The other thing that you mentioned in your 8 testimony, you remind us that the court of appeals 9 has held to the fact that mental illness does not 10 result in the forfeiture of a person's civil rights. 11 There are, obviously, a number of 12 high-profile court challenges right now to the 13 SAFE Act, based on other components of that law. 14 Are there any legal challenges to this 15 particular section of the SAFE Act? 16 JED WOLKENBREIT: I'm not aware of any. 17 SENATOR VALESKY: I'm not aware either, but 18 I -- 19 JED WOLKENBREIT: I'm not aware of any, at 20 this point. 21 SENATOR VALESKY: 22 Okay, thank you. 23 SENATOR CARLUCCI: All right, thank you. 24 JED WOLKENBREIT: Thank you. 25 1 SENATOR CARLUCCI: Next we're going to hear 2 from Dr. Glenn Martin, and Seth Stein. 3 Dr. Martin is the president of the 4 New York State Psychiatric Association, and 5 Mr. Stein is the executive director. 6 Thank you for being here today. 7 DR. GLENN MARTIN: Thank you for having us. 8 So, Senators, thank you for the opportunity 9 to offer testimony regarding the mental-health 10 reporting requirements of the SAFE Act. 11 As you know, my name is Glenn Martin. I'm a 12 practicing psychiatrist, and the current president 13 of the New York State Psychiatric Association, which 14 I'm representing today. 15 Joining me is Seth Stein, our executive 16 director, and general counsel. 17 Just, New York State Psychiatric Association 18 is a statewide medical-specialty organization with 19 over 4,000 psychiatrists in New York State. 20 And as requested, we e-mailed our testimony 21 to you on Wednesday. 22 I'm also appearing today on behalf of the 23 Medical Society of the State of New York, where I 24 serve as Chairperson of the Committee on Addiction 25 and Psychiatric Medicine Committee. 1 I'm pinch-hitting for the MSSNY president, 2 Dr. Sam Unterricht, who, unfortunately, can't be 3 with us today. 4 Dr. Unterricht's written testimony has also 5 been submitted. 6 And, I think I'll spare all of us, and if you 7 permit, rather than reading the testimony from both, 8 I would prefer to speak extemporaneously, which may 9 be a problem, but -- it won't be a problem to speak, 10 but it may be a problem once I get started. 11 So what I would like to point out is, first 12 of the all, the New York State Psychiatric 13 Association and the American Psychiatric Association 14 clearly recognize that gun violence is a 15 public-health concern. 16 It is, with suicide actually being the more 17 important concern, from our point of view, in the 18 sense that many more patients with mental illness 19 are going to die as a result of suicide from guns 20 than they are going to either commit or be a victim 21 of violence. 22 In fact, all studies will show that you're 23 much more likely, if you're mentally ill, to be a 24 victim of violence than a perpetrator of violence. 25 And, in fact, a number of diagnosed mentally 1 ill who are involved in violent crimes totally comes 2 down to about 2 to 5 percent, depending on what 3 you're doing. 4 This is not a huge number. It's certainly 5 very headline-grabbing when it occurs. 6 And, unfortunately, the focus on this is what 7 leads to my first concern, which is the stigma 8 associated with singling out mental illness for 9 doing -- for making reports, as well as the concerns 10 we have about confidentiality. 11 Now, clearly, our profession has always 12 understood that protecting patients from mental 13 illness, and those around them, is an important part 14 of what we do. And we have never advocated for an 15 absolute privilege of confidentiality. 16 And the State, and the government in general, 17 has understood, though, that it's absolutely crucial 18 that we do have a great deal of leeway in 19 confidentiality in order to do our jobs. 20 People are not going talk to us if they're 21 worried that we are going to rat them out at a 22 moment's notice. 23 There are other professions that also have 24 this. 25 For example, the clergy and lawyers also have 1 pretty absolute confidentiality. 2 I will just mention, parenthetically, and 3 probably not politically correctly, that they're not 4 obligated to report dangerous behavior when it comes 5 to their attention. 6 And I would imagine that many lawyers have 7 been faced with situations of people coming into 8 their offices who they believe are dangerous to 9 others, either because they're professional 10 criminals -- innocent, of course, but professional 11 criminals -- or, in a divorce proceeding, or 12 something, would say something that would make them 13 dangerous, and the State is not mandating them to do 14 anything to violate their confidentiality; 15 Nor priests, or the like. 16 But I'm saying, we are used to doing this, 17 but, what we're used to doing is more what's in 18 3113 of the regulations, where it allows people who 19 work in OMH to either, basically, hospitalize a 20 patient who is dangerous, or, arrange for the police 21 to be notified to protect somebody, or, notify the 22 person who is the direct likely victim. 23 That's not mandated. It's left in our 24 judgment to decide whether or not we're going to do 25 that. 1 And as has been pointed out by the previous 2 speaker, in fact, the changes to the law don't allow 3 us to do that. It tells us we are supposed to -- 4 actually, it doesn't say anything about going 5 online, or anything else. 6 And let me just say that we applaud OMH's 7 effort to try to interpret what the legislation 8 says, but, in fact, what they've done isn't what the 9 legislation says. 10 The legislation refers to "likelihood." 11 I can either argue that everyone is likely to 12 be violent at some point. 13 My children would argue I can do that to them 14 in a matter of moments, if I try. 15 On the other hand, no one is particularly 16 likely of being a violent. Unless you're a 17 professional hitman, it's a relatively rare event. 18 "Likelihood" isn't a standard that we work 19 with. 20 "Imminence" is something we can understand. 21 Also, we are not very good at protecting -- 22 predicting violence in any particular period of 23 time. 24 Short term -- and I ran a psychiatric 25 emergency room for eight years out of Queens when it 1 was really hopping -- we were pretty good, or we 2 like to think we were pretty good, at determining 3 whether or not somebody was likely to be violent in 4 the near future, imminently. 5 There are other people who, I had a pretty 6 good chance, were going to end up dead at some point 7 in their lives, but I didn't think it was going to 8 be imminent, and we would let them go and arrange 9 for outpatient care. 10 This standard doesn't make a huge amount of 11 sense. 12 And, frankly, as the previous speaker pointed 13 out, it's sort of a mix between trying to identify 14 people who you think shouldn't have guns, and at the 15 same time, not giving us the legal authority, 16 essentially, to break confidentiality. 17 There's nothing in this statute that let's us 18 do what we would want to do, when we need to do it. 19 So, we have, in fact, worked, and suggest 20 that there are some changes to the law that we think 21 will make it better, because we do understand this 22 is an important public-health issue. 23 We do believe that "imminence" should be 24 included in this statute; that it should be a 25 short-term defined period of time. 1 Also, I point out that OMH has decided that 2 substance abuse is not a psychiatric disorder, which 3 is interesting to me, because, certainly, in DSM-5, 4 which you may have heard we just published, we did 5 not remove all substance abuse from our manual. 6 We do consider that part and parcel of what 7 we do for a living, frequently comorbid with other 8 disorders, but, they have taken the role that pure 9 substance abuse, whatever that is, is not 10 reportable, even though those people might be even 11 more likely to be imminently dangerous. 12 They also don't necessarily allow us to 13 report pure criminal behavior. 14 I mean, frequently, we see people in the 15 emergency room who had gotten into a fight, and have 16 basically said: I'm going to go back, you know, and 17 get the guy who punched me out at the bar. 18 He's sober now. He is going take vengeance. 19 That's not a mental illness, necessarily, but 20 he sure as heck is dangerous, in my judgment. 21 It is unclear whether we're supposed to 22 report or not. 23 OMH says no, but the statute is unclear. 24 And, as much as I agreed with virtually 25 everything the previous speaker had said, I thought, 1 actually, his example of the dermatologist is an 2 interesting one. 3 Change it to a 35-year-old man or woman with 4 horrible skin disease who's on a medication that can 5 cause depression, of which some of theirs can, comes 6 in and says: I really can't stand living like this 7 anymore. I've been thinking about ending my life. 8 Would you not think that that is a 9 professional stance that they should do something 10 about it, and why would you precludes that person 11 from doing it? 12 So in this great fog of uncertainty, as the 13 previous speaker pointed out, you have the 14 risk-management approach: "report everyone," to the, 15 "I don't want to report anyone confidentiality" 16 [unintelligible]. 17 And I think as he said, the idea that most of 18 your reports coming out of the hospital makes sense. 19 If you really think somebody's imminently 20 likely to hurt themselves, and they're in your 21 office, you will take steps to get them into a 22 hospital, and probably let the hospital do the 23 reporting for you. 24 If you don't think they're imminent, even 25 though you think that they're, you know, possibly 1 going to end their life, because they have a bad 2 personality disorder with chronic depression, at 3 some point it may end badly, but you're doing your 4 best to try to avoid it, and hospitalization isn't 5 going to add anything right now, you may decide not 6 to do that; 7 The second issue is, who to report to. 8 As mentioned, we have this convoluted thing 9 where, theoretically, I could report it online. 10 The -- interestingly, when you go online now, 11 it flashes to you: Imminent danger, call 911. 12 Imminent danger, call 911. 13 But calling 911 isn't good enough, because I 14 still have to make this report. 15 I would argue that, frankly, you should allow 16 us to do what you allow OMH-licensed facilities to 17 do, which is, call 911 and say: I have a patient 18 who is in danger, or dangering somebody else. 19 Please send the police to safely escort him to an 20 emergency room where he can be treated. 21 And then they can do all the reporting they 22 want. 23 Confidentiality becomes less of an issue. 24 There's already a police report, there's an 25 ambulance call report...all of this is done. 1 And I would mention, on the back end, the 2 reporting is going on right now anyway. 3 All involuntary hospitalizations have to be 4 reported to the federal database to be checked 5 against. 6 So, again, from a confidentiality point of 7 view, that's already occurring; 8 Thirdly, the liability issue, which was 9 raised from a DCS [unintelligible]. They're not 10 covered at all. 11 I have to say that, as a practicing 12 physician, I'm not particularly thrilled by the 13 language that is used about "good judgment," because 14 good judgment can always be questioned, especially 15 through the retrospective scope by another expert, 16 three months after the fact, where something bad 17 happened, you can say, Well, obviously you showed 18 bad judgment. 19 I believe that organized medicine would be 20 much happier if we used "malice" or 21 "intentional misconduct," which is the standard that 22 already exists in statute, and I think would do 23 what's necessary to allow us to do this; 24 And then, lastly, I would just point out what 25 the previous speaker had mentioned, about the scope. 1 Nurses, to my understanding, other than nurse 2 practitioners, are not in a position where they can 3 diagnose or treat or prescribe. 4 So, why they have this mandated obligation to 5 do something that the government, in its wisdom, has 6 not given them the scope of practice to do, doesn't 7 make a huge amount of sense either. 8 So... 9 All right, I'll shut up, and answer any 10 questions, if there are any. 11 And, again, as I said, so those are the four 12 major points that we've made. 13 And as I said, Assembly Bill of A6233 has 14 some of the language already incorporated. 15 UNIDENTIFIED SPEAKER 1: The Pretlow bill 16 does? 17 UNIDENTIFIED SPEAKER 2: Yes. 18 DR. GLENN MARTIN: Yeah. 19 And, of course, we stand ready to cooperate 20 with anyone who is willing to listen to us. 21 SENATOR CARLUCCI: Just one question about, 22 with HIPAA, in terms of, as a professional, in your 23 role, what happens when state law contradicts HIPAA? 24 DR. GLENN MARTIN: Well, almost by 25 definition, it can't, in the sense, that the most 1 restrictive -- the -- HIPAA is always a floor, not a 2 celling. And that if the State is more restrictive, 3 you have to follow the state law. 4 The state can't be more permissive than 5 HIPAA. 6 So, in fact, we have filed an inquiry, or 7 complaint, with the Office of Civil Rights, because 8 we believe, in fact, this is not compliant with 9 HIPAA, because of the lack of imminence, in 10 particular, as well as some of the subtleties about 11 the mandate, and what you do and don't have to do, 12 that it's actually not compliant with HIPAA right 13 now, which does not make, you know, many of us 14 particularly happy when we have to do this. 15 We have had no problem, from a HIPAA 16 perspective, if there's an imminent risk, you know, 17 basically, all bets are off. We do what's necessary 18 to do, to protect the patient and protect the 19 potential victim. 20 Again, the intent of this law is not to do 21 that. 22 I mean, the intent of this law is to remove 23 firearms from people with mental illnesses who have 24 a likelihood of dangerousness for approximately 25 five years. 1 I know OMH, just in some of the talks they 2 mentioned, when they talk about the 11-year-old, and 3 that rather convoluted theory about them joining the 4 military, you know, is I do believe that there is 5 something in the law that will go into effect about 6 purchasing ammunition, as well as requiring the 7 owner of a firearm, that has somebody in the 8 household who is not allowed to have a firearm, to 9 properly secure it. 10 So you can argue, again, that reporting 11 children in that context, may not be quite as silly 12 as it sounds with their other argument about joining 13 the military, and leaving, blah blah blah blah. 14 SENATOR CARLUCCI: Just one other part, in 15 your -- in the written testimony that you submitted, 16 you had mentioned the required-by-law exception 17 under HIPAA. 18 DR. GLENN MARTIN: Right. 19 SENATOR CARLUCCI: And, could you just 20 elaborate upon that? 21 DR. GLENN MARTIN: If you don't mind, that 22 becomes technical enough -- 23 SENATOR CARLUCCI: Go ahead. 24 DR. GLENN MARTIN: -- and I'll allow -- 25 SETH STEIN: Well, our HIPAA argument really 1 is two sides: 2 HIPAA contains an authorization to disclose 3 confidential information in this scenario, but it 4 requires that the circumstance be an imminent danger 5 to self or others, and, that it be to law 6 enforcement or an identifiable victim. 7 So, HIPAA authorizes that. 8 Then there's a section on mandates. 9 And it could be argued that the SAFE Act 10 isn't a mandate at all, because it looks like a 11 mandate, but when you examine it, you could compare 12 it in New York to the child-abuse reporting 13 requirement. That's a mandate, and it has a 14 misdemeanor attached to it if you don't do it. 15 And this -- so this is neither an 16 authorization, exactly, or, a mandate. It sits kind 17 of in between. 18 And that's the reason why we pursued this 19 with the Federal Office of Civil Rights, because we 20 said that it's neither -- it's neither of the two; 21 and, therefore, a doctor who is compelled -- 22 perceives themselves to be compelled by the SAFE Act 23 could be construed as violating HIPAA. 24 And we felt that you could be caught between 25 the two different state and federal law. 1 And as Dr. Martin said, HIPAA makes it 2 quite clear that it is -- that it only will yield to 3 state laws that are more stringently protecting 4 privacy. 5 And in this -- so, therefore, it would not 6 yield to the SAFE Act, because the SAFE Act does not 7 provide more stringent protections of privacy. 8 In fact, it weakens it, from the HIPAA's 9 perspective. 10 But I think the solution to that, that we've 11 suggested, and that's reflected in the Pretlow bill, 12 is simply to put in this 3313 standard -- 3313(f) 13 standard -- (6) standard, which says, "imminent risk 14 of serious harm to self or others," right, and make 15 it an authorization statute, right, and change the 16 "exculpation" language to mirror 3313. 17 In other words, it's right there. 18 In fact, just, ironically, I believe that the 19 HIPAA section on "Authorization" was based on 20 New York State's 3313; in other words, it almost 21 tracks that language, and why. 22 So that we feel the simplist solution, is to 23 track that language. 24 And if the Legislature, in its wisdom, still 25 wants the reporting, in addition to police, and 1 identifiable victim, and in addition, the gun thing, 2 to go on, rather than have the police do that, 3 which, it seems to us, to be a far more logical 4 thing. 5 In other words, if they -- if a psychiatrist 6 calls up the police and says, "I'm worried about 7 this individual," right, the police are in a much 8 better position, quickly, to ascertain whether that 9 person has a licensed or registered firearm than 10 anybody else has, instantaneously, even before they 11 go to the apartment or to their residence, to 12 ascertain whether they have a firearm at that 13 location or not. 14 Which I assume would be a prudent step to 15 take. 16 And what we pointed out in the statute, is 17 that the process now, right, of that whole long 18 circuitous process to get to the Division of 19 Criminal Justice Services, doesn't really intervene 20 quickly, when that's really what should be taking 21 place: a quick intervention, based upon an imminent 22 risk, and an assessment of whether the individual 23 possesses a registered or legal firearm before the 24 police go and knock on the door, to inquire as to 25 what's going on. 1 SENATOR VALESKY: Can I just get a point of 2 clarification on your comparison between this and 3 the child-abuse reporting? 4 The result of a lack of a penalty, that's why 5 this would not be considered a mandate? 6 Is that what you said? 7 SETH STEIN: Yeah, because it's really, when 8 you look at the statute carefully, it's not -- it 9 doesn't have the same -- it doesn't say -- it's not 10 really a "must" statute, because the federal HIPAA 11 law says that a mandate must be associated with a 12 penalty for failure. 13 And there really isn't any penalty under the 14 SAFE Act, so, it looks like a mandate, but isn't 15 really a mandate. 16 But as we heard from the first -- you know, 17 from the Local Mental Hygiene Directors' counsel, 18 it's being interpreted, and overinterpreted, as a 19 super-mandate; in other words, they're reporting 20 anybody. 21 I mean, they're not even -- in other words, 22 because, why not? Why not do it? 23 And I think that's why the "exculpation" 24 language, if it copied 3313, people would feel more 25 comfortable exercising, what Dr. Martin said, is 1 that professional judgment, and weighing whether or 2 not. 3 Because even -- I mean, it could be argued, 4 and we thought originally, before OMH came out, that 5 a person who is involuntarily hospitalized, right, 6 where they can't leave, is a person for whom, 7 otherwise, no report. 8 In other words, the police wouldn't be called 9 if someone was involuntary hospitalized, right, 10 unless they eloped, or something like that. 11 But absent that, they're safe. 12 But if the safe -- but, you know, that's -- 13 but we came to realize that OMH intended, actually, 14 we said in our testimony, they were even talking 15 about reporting on discharge, let alone reporting on 16 admission. 17 So that made no sense to us, because how 18 would could someone be danger to self or others, 19 unless you're talking about, could they possibly be 20 at some time in the remote future, right, if their 21 symptomatology returned, and so forth and so on. 22 And if that -- and that's exactly what they 23 meant. 24 And it seems to me, is that that gets beyond 25 the scope of what's reasonable, or useful. 1 SENATOR VALESKY: Thank you, both. 2 SETH STEIN: Thank you. 3 DR. GLENN MARTIN: Thank you. 4 SENATOR CARLUCCI: Thank you, Mr. Stein. 5 Dr. Martin, thank you. 6 DR. GLENN MARTIN: Thank you for having us. 7 SENATOR CARLUCCI: And our next speaker is 8 from the New York Association of 9 Psychiatric Rehabilitation Services, or, "NYAPRS," 10 Carla Rabinowitz, who's the public-policy chair. 11 CARLA RABINOWITZ: So thank you for this 12 opportunity to present the concerns of thousands of 13 New Yorkers represented by NYAPRS, the 14 "New York Association of Psychiatric Rehabilitation 15 Services." 16 NYAPRS is a unique partnership of people with 17 psychiatric disabilities across the state and the 18 mental-health professionals who support us. 19 So, I'm Carla. I'm the co-chair of NYAPRS's 20 Public Policy Committee, and today I'm also 21 representing NYAPRS's executive director, 22 Harvey Rosenthal, who apologizes, but was unable to 23 be here because he had a previous out-of-state 24 commitment. 25 I also work for, get paid by, an organization 1 called "Community Access," which I'm plugging, which 2 is a 39-year-old organization that empowers 3 mental-health recipients in many ways, by providing 4 quality housing, and employment, for people with 5 mental-health concerns. 6 So, State mental-health policy is a very 7 personal matter to NYAPRS. It's a personal matter 8 to NYAPRS's organizational members. It's a personal 9 matter to the board members, to the staff, the 10 mental-health recipients, and to myself, as we -- 11 most of us all share some type of psychiatric 12 disability. 13 So Harvey and myself would like to begin by 14 focusing on the media coverage: what's been 15 happening, and how this all came to be. 16 So you know about the horrific media 17 coverage, the demonization, the criminalization, in 18 the minds of people of mental-health recipients, due 19 to the -- in the wake of the recent tragedies in 20 Newtown, New York City, and elsewhere. 21 Now, these tragedies are abhorrent. 22 They are especially abhorrent to the 23 mental-health recipients, because, as other speakers 24 have said, we're more likely to be victims of crime, 25 twelve times, and we're five times more likely than 1 the general public to be murdered. 2 But there's no studies that are showing, 3 despite all the stigma, that we're more likely to be 4 violent. 5 There is some association and some studies 6 with substance use and violence, but that applies to 7 everybody in the general public, not just 8 mental-health recipients. 9 Despite this, and, you know, as people, these 10 horrific act of violence are often associated with 11 mental illness, and we get demonized in the 12 mental-health community. 13 An example is, the "New York Post," where -- 14 when they talked about releasing people, 15 reinvestment, releasing -- releasing people from 16 psychiatric hospitals that weren't serving them 17 well, the headline was, "11,000 psychotics on the 18 street." 19 Or, you know, the headlines such as that. 20 And it's -- and if you look at what 21 "The Daily News" found, which isn't always the 22 greatest, but "The Daily News" said they did a study 23 of what happened in 2007. They found that, of 24 500 murders, only 5 were by mental-health 25 recipients. 1 Yet, those five were probably in the news for 2 months; right? 3 And the stark truth is, that the public 4 doesn't need protection from people with 5 mental-health concerns. 6 It's us who need protection from this 7 outrageous mischaracterization, and from the rush to 8 enact laws that provides false solutions to appease 9 public fears: this violence occurred, people got 10 afraid, elected officials representing the vast 11 majority of people who don't have mental-health 12 concerns said, Let's pass this law without concerns 13 for the mental-health recipients. 14 So we at NYAPRS applaud the State's acts -- 15 attempts to reduce gun-related violence, but the 16 requirement that mental-health clinicians report 17 clients who disclose impulses to harm themselves or 18 others is really, really problematic. 19 Some of the things that haven't been talked 20 about is the chilling effect that it's going to have 21 with mental-health recipients and therapists or 22 psychiatrists. 23 You trust someone. You think about it, if 24 you were talking to a priest and you told him some 25 confidential secrets, and then you found out he 1 disclosed it to the State, you know, there goes the 2 relationship. 3 And you can imagine that -- you know, you've 4 heard from the APA and others who are concerned 5 about that. 6 So we think that this reporting requirement 7 really intrudes in a client-patient relationship, 8 and that's just a mild way of saying it. 9 It's, like, people -- let's say you were in 10 the Army, and you have PTSD. You know, you might 11 have thoughts of violence. 12 Are you going to keep on going to your 13 therapist? Are you going to stop what you're saying 14 to your therapist? 15 And then it's less helpful, and the 16 psychiatrist is less helpful, and maybe you don't 17 get the medication you need, because you're not 18 saying the truth. 19 Also, clinicians don't have the ability to 20 predict future violence, as this man from the APA 21 was saying. 22 We have a study here, but there's other 23 better studies from the APA that basically says they 24 can't predict future violence, they just can't, 25 amongst anybody. 1 And as was said, our real concern right here 2 is that the SAFE Act, using this broad language, 3 right, "likely to engage in conduct that will result 4 in serious harm to self or others," and nobody knows 5 what that means. Right? 6 So some may underreport, and some may 7 overreport. 8 We need to get back to the "serious and 9 imminent danger threat" standard. 10 And a type of technical amendment was 11 proposed this past session by someone named 12 "Pretlow." 13 And you have the citation here, the statute, 14 the bill, A6233. He's from Mount Vernon, Pretlow. 15 And it basically, you know, clarifies what 16 triggers a reporting by professionals to this 17 imminent danger. 18 And I just want to conclude by thanking you 19 for your time, but just to let you know that, you 20 know, I myself am a mental-health recipient. And, I 21 got my license back by proving that I was going to 22 treatment, and such, my law license. 23 And in today's world, I don't know if that 24 would happen. 25 You know, there's a lot of hysteria going on, 1 and that's how this law came to be. And we need to 2 tailor it a little bit more to what would really 3 work, and what would not destroy a relationship with 4 therapists and psychiatrists. 5 SENATOR CARLUCCI: Carla, thank you so much 6 for your testimony. 7 And it's a very important and serious issue 8 in terms of the stigma, and it's something that we 9 do have to fight against. 10 And, I appreciate your testimony and some -- 11 the written testimony, specifically, and some 12 strategies to do that. 13 I just was at a Veterans' Advisory Committee 14 meeting, and we were talking about PTSD and the 15 stigma attached to that. 16 And, you know, we talk about it. And I don't 17 think I even have to ask about your feelings on 18 people not going for the treatment that they need 19 out of fear of this stigma. 20 So, we have something that we definitely have 21 to work towards, and appreciate your work in that 22 area. 23 CARLA RABINOWITZ: Narrow it down to 24 [unintelligible], like everyone's saying. 25 Thank you. 1 SENATOR CARLUCCI: Thank you. 2 SENATOR VALESKY: Thank you, Carla. 3 SENATOR CARLUCCI: Next we have 4 Mary Beth Anderson, who's the project director of 5 the Urban Justice Mental Health Project. 6 MARY BETH ANDERSON: I want to thank you so 7 much for scheduling me early in the day. Sarah from 8 your office agreed to do that, as I do have another 9 meeting to go to. 10 And my colleague Megan Crowe-Rothstein, who 11 is our director of social work, will remain 12 throughout the hearing. 13 And I do echo many of the comments made by 14 Dr. Martin regarding the statistics on people with 15 mental illness and the tenuous connection to 16 violence. 17 I also echo the concerns of Ms. Rabinowitz. 18 I agree completely that the major problem, in 19 my view, with any connection between violence and 20 mental illness, is that there is still so much 21 stigma attached to having a mental illness and 22 receiving mental-health treatment. 23 And, I think that ways to -- finding ways to 24 decrease this stigma are really essential in order 25 to help people with mental illness access treatment. 1 I won't reiterate my written testimony, but 2 just highlight a few things that are contained in 3 it. 4 New York State has one of the lowest levels 5 of gun violence in the entire country. It seems to 6 be within the bottom five in any study that's been 7 done, and there have been a lot of studies done. 8 And I do believe this is largely due to our 9 strong gun-control laws. 10 The Urban Justice Center Mental Health 11 Project provides direct legal and social-work 12 services, and we do impact litigation, to try to 13 help people with mental illness receive treatment, 14 live fuller lives. 15 And we have had clients and prospective 16 clients come in and tell us about their concerns 17 about the SAFE Act. 18 And we certainly know that one of the greater 19 problems for some people to access treatment, is 20 paranoia about being included on some sort of 21 government list. 22 The SAFE Act just increases that paranoia. 23 And what -- in addition to increasing the 24 stigma, we feel that there are particular classes of 25 people that will be inhibited. 1 We echo Ms. Rabinowitz's concern about 2 veterans being unwilling or reluctant to access 3 treatment. 4 And I also know members of law enforcement 5 would have great difficulty. I mean, most members 6 of law enforcement are licensed to carry guns, and I 7 think that this will inhibit them. 8 And, in fact, I've talked with three 9 different groups of law-enforcement officers in the 10 past month, and all of them felt that the SAFE Act 11 did not assist to make -- to meet the aims. 12 What's really of concern to me, is we had a 13 real tragedy that propelled the enactment of this 14 law, but the tragedy likely would not have been 15 prevented by the enactment of this law. 16 So if this type of legislation had existed in 17 Connecticut, in Colorado, in Arizona, in any of the 18 places where we've seen some tremendous mass 19 shootings in the past couple of years, I don't 20 believe that it would have prevented any of those 21 incidences. 22 My experience in dealing with people with 23 mental illness comes primarily through 20-plus years 24 of work as a public defender, where I spent the last 25 15 years of my work really concentrating my practice 1 around trying to help people with mental illness who 2 get caught up in the criminal justice system, to get 3 out of the criminal justice system. 4 I did this at the Legal Aid Society of 5 New York, and, at Brooklyn Defender Services, in 6 their criminal practices. 7 And I have worked -- even before I became the 8 director of the Urban Justice Center Mental Health 9 Project, I have worked with the Mental Health 10 Project to try to improve the lives of people with 11 mental illness who get caught up in the criminal 12 justice system here in New York City, and who 13 receive mental-health services in the state prisons. 14 By and large, people with mental illness that 15 do commit crime do not commit violent crime. 16 And, the violent crime that's committed is 17 generally not gun crime. 18 And when guns are used, they are almost 19 always illegally possessed. 20 And, I forget whether it was the first 21 speaker or Dr. Martin who talked about, that there 22 have only been, out of some thousand -- 23 5,000 reports, there have only been 11, or, 24 3,000 reports, 11, founded circumstances where there 25 were guns involved. 1 The vast majority of guns that people -- any 2 people in New York use to commit crimes, are 3 illegally possessed. 4 And I just don't think that there's enough of 5 a connection between gun crime and mental illness to 6 justify this reporting, which so, so increases 7 discrimination against people with mental illness. 8 In addition, there is just one other item 9 that I would like to highlight. 10 I find it almost beyond belief that there's a 11 mandate for people who are released from state 12 prison to psychiatric -- local psychiatric 13 facilities to be mandated for assessment for 14 assisted outpatient treatment. 15 In my view, I know that assisted outpatient 16 treatment is used far more frequently downstate than 17 upstate, and maybe there is a need to try to help 18 people who are eligible upstate, to have clinicians 19 refer eligible people. 20 But, I think that it's just flat out wrong, 21 and clearly discriminatory, to say: If you were in 22 state prison, and you were discharged to a 23 psychiatric facility, you need to be assessed for 24 AOT before you can be released to the community. 25 There is really -- while many of those people 1 may meet the criteria for AOT, the ones who meet the 2 criteria for AOT should be referred if it would be 3 helpful and of benefit to them. 4 One of the criteria for AOT, is that the 5 order would be a benefit to the respondent of the 6 order. 7 So, if they meet the criteria, and the order 8 would be of benefit, they should be referred, but 9 they should not be referred for assessment merely 10 because they happen to be caught up in the criminal 11 justice system. 12 Thank you very much for giving me this 13 opportunity to testify today. 14 SENATOR VALESKY: We thank you for your 15 interest, and your work in the field. 16 Thank you. 17 MARY BETH ANDERSON: Thank you. 18 SENATOR CARLUCCI: Next we're going to hear 19 from Jason Lippman, who's the senior associate of 20 policy and advocacy for the Coalition of Behavioral 21 Health Agencies. 22 JASON LIPPMAN: Good afternoon, 23 Senator Carlucci and Senator Valesky. 24 Thank you for allowing me the opportunity to 25 testify before you today. 1 The New York SAFE Act, as it relates to 2 mental-health services and 3 mental-health-professional reporting requirements. 4 Before I address concerns about the SAFE Act, 5 I thought it is important to point out that, as has 6 been mentioned by other speakers, that the link 7 between mental illness and violence is a serious 8 one. 9 Each year, 20 percent of Americans suffer 10 from a mental illness, and almost half of Americans 11 experience some form of behavioral health symptoms 12 throughout their lives; yet, when it comes to 13 incidence of violent crimes, only a very small 14 portion, about 4 percent, are committed by 15 individuals with mental illness. 16 In addition, individuals with mental illness 17 are 12 times more likely to be victims of crime, as 18 you heard earlier as well. 19 More reliable predicters of violence include 20 things like age, gender, prevalence of substance 21 abuse, disorder, and the nature and quality of one's 22 environment, and past behavior. 23 Misperceptions about people with mental 24 illness can lead to discrimination and hinder 25 recovery. 1 Such stigma also deters people with mental 2 illness from seeking professional help. 3 The coalition actually supports provisions in 4 the SAFE Act related to gun control. 5 Specifically, we support the expanding of 6 New York's laws to ban assault weapons and 7 high-capacity magazines, as well as expanding 8 background checks on sales and purchase of firearms 9 for all New York State residences. 10 We believe that gun control is a significant 11 public-health issue. 12 We are concerned, obviously, about the 13 SAFE Act's requirement that mental-health 14 professionals have to report. 15 We believe that it not only stigmatizes 16 people with mental illness and deter them from 17 treatment, but it is also in violation of HIPAA, as 18 you heard earlier, and because of that, it exposes 19 practitioners to liability risks. 20 It is current the case that the HIPAA law 21 allows practitioners to report clients in the 22 presence of an imminent threat, and to a person or 23 entity that is reasonably able to prevent or lessen 24 such a specific threat. 25 The SAFE Act does not meet this standard. 1 Furthermore, it creates an environment where 2 individuals may not feel safe to speak freely or 3 fully disclose their thoughts and feelings to 4 mental-health professionals. 5 The HIPAA standard balances constitutional 6 protection, personal safety, and privacy issues 7 associated with mandatory reporting and database 8 building, with the need to protect public health and 9 safety. 10 Moreover, having two contradictory standards 11 in place makes the SAFE Act's reporting requirements 12 confusing and contradictory to follow. 13 Finally, rare acts of violence are usually 14 carried out by individuals who are not in treatment. 15 We need to identify and engage them before 16 crisis situations arise. 17 Preventive measures should include early 18 identification and treatment for substance-abuse 19 problems, more community behavioral health services, 20 more screening and outreach engagement in primary 21 care in schools, and more housing for people with 22 severe mental illness and substance-abuse disorders. 23 On behalf of the 130 non-for-profit coalition 24 members throughout New York City, Westchester, 25 Rockland, and surrounding counties, we look forward 1 to working with you and members of the Legislature 2 to remove this troubling provision, or at least 3 tweak it in some way, while retaining the freedom to 4 report that HIPAA allows. 5 I thank you for your time and interest, and 6 I am available to answer any questions that you may 7 have. 8 SENATOR CARLUCCI: Well, thank you very much. 9 You talked about the liability in terms of 10 practitioners. 11 Could you elaborate on that a little bit 12 more, in terms of what the fear is? 13 And, has there been some specific 14 circumstances that you have seen in this case? 15 JASON LIPPMAN: I guess because the 16 provisions in the SAFE Act are so vague, it leaves 17 them open to interpretation in many different ways. 18 Also, in the SAFE Act, it lists four types of 19 professionals that must report. 20 We've had questions from agencies: Well, 21 what if someone else tells them? 22 I mean, that part I guess is kind of clearer. 23 But I guess, also, because it contradicts 24 with the HIPAA standard. 25 It's hard to follow both at once. And if 1 you're caught in the middle, and you wind up in 2 court, it leaves it open. 3 Stuff that are wide open, that the 4 "likelihood" language, "using reasonable judgment," 5 all of that was is open to interpretation. 6 And it's not just the practitioner itself. 7 Also the provider agencies themselves would likely 8 be open. 9 SENATOR VALESKY: Just a thought, I could 10 have asked probably anyone who testified before: 11 Are you aware of any similar reporting requirements 12 in any other states? 13 JASON LIPPMAN: I am not. 14 That's a good question. And I think it's 15 something I would like to look into. 16 So, I will, and I can get back to you. 17 And I'm sure other people would want to know. 18 We can do that too. 19 That's a good question. 20 SENATOR VALESKY: Thank you. 21 SENATOR CARLUCCI: Great. 22 Mr. Lippman, thank you very much. 23 JASON LIPPMAN: All right, thank you. 24 SENATOR CARLUCCI: Next we're going to hear 25 from the New York State Psychological Association. 1 We have Dr. Eric Neblung, who's the 2 president; and, Jerry Grodin, who's the director of 3 professional affairs. 4 DR. ERIC NEBLUNG: Good afternoon. 5 Thank you very much for taking our testimony 6 today. 7 Before I begin, I'd just like to say: 8 David, as a constituent, I'm very proud of 9 the work you've been doing, and I'm very happy to be 10 here with you today. 11 SENATOR CARLUCCI: Thank you. 12 DR. ERIC NEBLUNG: And, also, it's 13 Dr. Grodin. 14 The New York State Psychological Association 15 believes that the SAFE Act represents a sincere 16 attempt to address the plague of gun violence in our 17 state. 18 As such, we congratulate the New York State 19 Legislature for taking on the hard task of reducing 20 gun violence. 21 However, it is also our consensus opinion 22 that the mental-health reporting provisions of the 23 SAFE Act are not acceptable as they are currently 24 written. 25 To be clear, these comments are limited only 1 to the mental-health reporting provisions of the 2 act. 3 Regarding the act's mental-health reporting 4 provisions, our opinion is based on the following 5 conclusions: 6 First, the act's mental-health reporting 7 provisions do nothing to allow a mental-health 8 provider to take immediate action to deal with a 9 dangerous mental-health patient. 10 By the very nature, the act's current 11 mental-health reporting provisions are not designed 12 to allow clinicians to breach confidentiality in a 13 way that will allow them to take the necessary, 14 direct, and immediate steps that will simultaneously 15 help a dangerous patient and protect society from 16 that patient. 17 Instead, the act requires the mental-health 18 professional to make a report that must work its way 19 relatively slowly through a bureaucracy. 20 The only possible result from this report, 21 are the removal of licensed firearms or a 22 restriction on an individual's ability to obtain 23 firearms in the future. 24 The act does not provide for any other 25 action; thus, it provides no assistance to 1 mental-health professionals who are dealing with 2 immediately dangerous patients who may pose imminent 3 threat to themselves or others; 4 Second, the act's mental-health reporting 5 provisions are much too vague, and will lead to 6 confused and inconsistent reporting. 7 Other jurisdictions that have tackled this 8 problem have clarified the mental-health reporting 9 requirements by specifying that the patient's threat 10 of harm must be serious and imminent and involve 11 threats of physical harm. 12 The addition of these terms "imminent," 13 "serious," and "physical harm," would help mental 14 professionals report only those patients who are 15 clearly dangerous, and would prevent the expenditure 16 of resources on investigations of a potential flood 17 of vague and indefinite threats. 18 In addition, a clearly and specifically 19 defined set of reporting criteria will limit the 20 act's infringement on the confidentiality and 21 privacy of persons who are not imminently and 22 seriously dangerous, and would allow such persons to 23 discuss their problems without fear of triggering a 24 sudden and dramatic governmental intrusion into 25 their private lives. 1 Thus, the clearer and more specific the 2 mental-health reporting criteria, the less likely 3 that the act will deter patients from seeking 4 mental-health treatment, and the less likely that it 5 will inhabit the honest disclosure of information 6 during mental-health treatment; 7 Finally, the focus of the SAFE Act 8 exclusively on the mentally ill, as opposed -- as 9 potential sources of violence unnecessarily 10 stigmatizes a part of the population that is much 11 more likely to be the victims of, as opposed to the 12 perpetrators of, violence. 13 Indeed, research suggests that the presence 14 of mental illness only minimally predicts the 15 commission of future violence. 16 Rather, there are other much more powerful 17 predicters, most notably, active substance abuse, 18 the presence of environmental stressors, and history 19 of past violence. 20 We urge the Legislature to consider refining 21 the act so that it more accurately and thoroughly 22 addresses the factors that are known to raise the 23 risk of future violence. 24 Thank you. 25 1 SENATOR VALESKY: I just wanted to follow up: 2 You, actually, in your testimony, have hinted 3 at an answer to the previous question that I just 4 asked. 5 You said, that, "other jurisdictions that 6 tackled this problem." 7 Do you have -- what other jurisdictions are 8 you referring to? 9 DR. ERIC NEBLUNG: There's other states that 10 have looked into this issue. 11 California. Uhm... 12 Do you have some others in mind, Jerry? 13 DR. JERRY GRODIN: California, in particular, 14 they were all struggling with this, and were much 15 more specific in their definitions. 16 SENATOR VALESKY: Okay. So their statute -- 17 from your perspective, their statute would be 18 acceptable? 19 DR. JERRY GRODIN: It would be, because, I 20 think that, for people in private practice, this is 21 constructed in a way that is so non-specific, I 22 think there would be great reluctance to actively 23 report someone. 24 SENATOR CARLUCCI: Well, Dr. Grodin, 25 Dr. Neblung, in the testimony, you did speak about 1 those specifics, and you mentioned them just now, 2 and, we speak about these predicters of future 3 violence. 4 Now, with these -- you know, with these 5 predicters, are there ways that we could tailor the 6 SAFE Act provisions that would address those 7 predicters, and do it without further stigmatizing 8 individuals? 9 DR. JERRY GRODIN: I think that tightening it 10 up would make more much sense, so that it's more 11 useable to people in private practice. 12 Because the private practitioner is going to 13 feel like they're using what is called "their best 14 judgment," the best judgment, based upon research, 15 is: 16 Was the person under the influence of 17 substances? No. 18 Was -- does the person have a past history of 19 violence? No. 20 "So, you're basing your reporting based upon, 21 what?" 22 And they would be very exposed under those 23 conditions. 24 SENATOR CARLUCCI: Well, thank you so much. 25 We really appreciate the testimony, and look 1 forward to working with you in the future. 2 DR. ERIC NEBLUNG: Thank you, both. 3 DR. JERRY GRODIN: Thank you. 4 SENATOR CARLUCCI: Next we'll hear from 5 Ari Moma, who is from the New York Nurses 6 Association. 7 ARI MOMA, R.N.: Thank you, and good 8 afternoon. 9 I appreciate your having us, the New York 10 State Nurses Association, to present our testimony. 11 First, and foremost, I am a registered nurse. 12 I live in Brooklyn, and I work in Brooklyn. 13 And I'm here to speak on behalf of New York 14 State Nurses Association. 15 We appreciate the opportunity to submit our 16 testimony to this Committee. 17 The New York Association is the oldest and 18 largest professional organization for registered 19 nurses in New York State, and it represents the 20 interests of more than 270,000 registered nurses in 21 New York State. 22 I'm also the [unintelligible] 23 collective-bargaining agent for more than 24 36,000 nurses, with 150 collective-bargaining 25 facilities -- health-care facilities in 1 New York State. 2 Furthermost, I would tell you that nurses are 3 front line. You know, we are in the hospital 4 [unintelligible] we triage a patient and see them 5 [unintelligible] first line. 6 And they experience the tragic effects of gun 7 violence on a regular basis. 8 In my work on a psych unit -- 9 I work in a psych unit at Interfaith Medical 10 Center, and I've been a psych nurse for 11 17 years-plus. 12 -- and I've seen the effect [unintelligible] 13 violence has taken on families, their loved ones, 14 and community at large. And especially where I 15 live, or where I work, which is [unintelligible] 16 Brooklyn, I see it firsthand. 17 And most of the patients we have there are 18 mostly classified as mostly forensic patients. 19 The New York Association will support the -- 20 and we support and appreciate the effort to reduce 21 the gun violence; however, we have serious concerns 22 regarding the provision of the SAFE Act; 23 specifically, the addition of Section 9.46 24 [unintelligible] of the Mental Health -- 25 Mental Hygiene Law which establishes that the 1 mental-health-professional reporting requirements. 2 We appreciate the opportunity to speak with 3 you, to be -- and hope to engage you as a panel in 4 amending the requirement. 5 Mostly, before I continue, I will thank you 6 [unintelligible] because, most of the time, we're in 7 Albany, and we [unintelligible] New York has worked 8 diligently to make most of the laws passed, 9 especially the violence towards the nurses, which is 10 the same [unintelligible] law that has -- it applied 11 to the police officers. 12 So, with that, [unintelligible] you're going 13 to work diligently to bring that concern, you know, 14 to your -- you know, to the Committee -- to the full 15 Committee. 16 The law we're talking about includes 17 provision [unintelligible] mental-health 18 professionals to make a report to local director of 19 community services when the head [unintelligible] 20 professional concludes, in their reasonable 21 professional judgment, that the patient is likely to 22 engage in conducts that would result in serious harm 23 to self or others. 24 There are three concerns the New York 25 Association has, and that is, [unintelligible] about 1 reporting requirement. 2 The first, and foremost, is the HIPAA. 3 Your reporting provision are not in 4 compliance with the HIPAA standards; 5 Two, that the requirement that all 6 mental-health registered nurses would be mandated 7 reporters. 8 It's not consistent with current scope of our 9 practice, and it poses us, the registered nurses, to 10 liability; 11 And the third, the linking the gun-control 12 efforts with mental health stigmatizes mental 13 illnesses, and would create barriers to treating for 14 individuals who would need it. 15 In elaborating those three points, the 16 violation of HIPAA, as are groups that are 17 testifying today, pointed -- some of the other 18 groups pointed out earlier, that mandatory reporting 19 requirement by the SAFE Act to a local director of 20 community services constitute a violation of HIPAA, 21 because SAFE Act, as presently written, (1) fails to 22 require the presence of immediate threat as a 23 precondition to release confidential health 24 information, (2) it also fails to mandate the report 25 that [unintelligible] patients or entity who is 1 resembling [unintelligible] mitigates the immediate 2 threats. 3 The New York Association urges an amendment 4 to the SAFE Act to conform to HIPAA standards; that 5 is, disclosure only when there is a significant and 6 immediate threat to the health and safety, which is 7 the threshold in existing Mental-Health Hygiene Law; 8 And, also, disclosure [unintelligible] 9 reasonably effort to prevent or lessen the threat, 10 including the target of the threat, such as the 11 enforcement agency; 12 Secondly, mandating all mental-health nurses 13 is not consistent with our scope of practice. 14 Currently, the submission of serious and 15 imminent danger in New York State Mental Hygiene Law 16 that allow for disclosure of confidential clinical 17 records, are made by treating providers who has the 18 authority to [unintelligible] prescribed. 19 I'm a nurse. I'm a registered nurse. All I 20 do: I assess the patient, get all the necessary 21 data, and I will give it over to a provider, which 22 is a psychiatrist, or, nurse practitioners, be they 23 are an advanced -- have advanced training. They are 24 the other people that will diagnose, they're 25 prescribed. 1 So to put that burden on a registered nurse, 2 I don't think is fair on them, and it exposes them 3 to litigation. 4 And, what are their protection? 5 And another thing, is that, it's not within 6 their scope. 7 We know, when you put us outside their scope, 8 you're exposing us to a litigation. 9 And the first of most, when you go to the 10 Department of Education, when you sit before the 11 board, you have your scope, which a code to work 12 within this scope. 13 Again, outside your scope, it's not 14 acceptable. It's unprofessional. 15 Why is the State putting these -- the nurses 16 in danger of losing their license, and all their 17 livelihoods? 18 And also endangering the patient, because you 19 are not -- you're treating what they're not supposed 20 to do; 21 And, thirdly, linking gun control with mental 22 illness will increase the stigma on the patient. 23 The New York Association has serious concern 24 that mental-health-profession reporting requirement 25 will further stigmatize mental health, and may 1 function as a barrier to treatment for those who 2 need it. 3 Mental health and gun control are a separate 4 concern, and to promote the criminalization of 5 people with mental health would -- with this broad 6 reporting requirement is an injustice. 7 I sit with my patient every day. And when 8 you do an assessment, most of the mental patients 9 are they had -- they're delusional. 10 And when you sit with them, and start to get 11 information, the first thing they ask you: This 12 information, where are you talking it to? 13 Is it going to be beyond this place? 14 Is it going to go to [unintelligible] way 15 before this [unintelligible]? 16 And most of the time that means, how much 17 information are they going to give you? 18 If they realize that this information, most 19 of them have criminal records. 20 You know, I mean, the kind of patient I see, 21 [unintelligible], the area [unintelligible] criminal 22 records. 23 Their criminal record is not that violent. 24 Maybe shoplifting. 25 With this, this law, they would not give you 1 much information about them. They will lie. 2 And when they lie, we're going to be treating 3 something that they are not there for. 4 How does that help them? 5 It does not help them. 6 And it does not help the society to reduce 7 the gun violence. 8 Most of the gun violence are merely from 9 smugglers. 10 Few people that have the gun that are 11 registered, there are always a background check that 12 out that are done. 13 And most of all of the killing from illegal 14 guns smuggled in, and are people buying gun from -- 15 maybe from other people. 16 How is this going to help? 17 How is it going to help the nurses? 18 And how is it going to help the mental-health 19 patients? 20 It's not going help them. 21 They will not give you more information. 22 Most of them would bar themself from coming 23 to get treatments. 24 So in conclusion, the New York Nurses 25 Association urges the Legislature to work with us to 1 modify this provision in the SAFE Act, to protect 2 the public well-being, [unintelligible] as a mental 3 illness, and creating barriers to necessary 4 treatments. 5 In conclusion, also, I thank you for the 6 opportunity you have given to me to represent my 7 association, New York State Nurses Association, to 8 bring our concern up to you. 9 And we urge you to consider this amendment, 10 and others, to protect, not only the professionals 11 who are dedicated to providing -- the professionals 12 who are dedicated to providing care for those with 13 mental illness, but also to protect the patient and 14 public as well. 15 Thank you. 16 Do you have any questions? 17 SENATOR CARLUCCI: Thank you, Ari. We really 18 appreciate your testimony. 19 SENATOR VALESKY: I was just going to 20 mention, obviously, we have heard a great deal about 21 the HIPAA concerns, and the stigma, but, I wasn't as 22 aware with your scope of practice concerns, and the 23 potential for liability. 24 So, I appreciate your specifically bringing 25 that to our attention. 1 ARI MOMA, R.N.: Thank you. 2 SENATOR CARLUCCI: Next we'll hear from 3 Beth Haroules, who is the senior staff attorney for 4 the New York Civil Liberties Union. 5 BETH HAROULES: Hi, good afternoon. 6 My name is Beth Haroules. I'm a senior staff 7 attorney at the New York Civil Liberties Union. 8 We are the New York State affiliate of the 9 American Civil Liberties Union. 10 We have 7 chapters, or regional offices, and, 11 nearly 50,000 members across New York State, and the 12 forefront of our efforts have been our defense of 13 the rights of individuals with disabilities under 14 both the federal Constitution and the New York State 15 Constitution. 16 I would like to thank the Committee for 17 inviting NYCLU here to provide testimony relating to 18 the implementation impact of the mental-health 19 requirements contained in the SAFE Act. 20 I'm one of plaintiffs' lead counsel in the 21 Willowbrook case, as well as lead counsel in the 22 Hirschfeld versus HHC case. 23 You may know that the Willowbrook case is a 24 landmark class-action litigation on behalf of people 25 with intellectual developmental disabilities, mental 1 retardation, or developmental disabilities, 2 initiated in 1972 by my office and others, that was 3 in the vanguard of the civil-rights movement for 4 people with disabilities. 5 The Hirschfeld case is a pending lawsuit 6 challenging the squalid conditions, substandard 7 mental-health services, and abusive and negligent 8 treatment of adult and child and adolescent patients 9 confined to King County's Hospital psychiatric 10 facilities, a New York City HHC corporation that is 11 operated under the auspices of the New York State 12 Office of Mental Health. 13 I was also the lead counsel in the 14 Amicus Group that challenged the enactment of 15 Kendra's Law in the case, "K.L.," in 2004. 16 It's been my experience, as I monitor 17 implementation of two federal consent judgments in 18 the Willowbrook and Hirschfeld matters that the 19 stigma that attaches to people with disabilities, 20 whether it be developmental disability or mental 21 illness, including Alzheimer's and other mental 22 illnesses that affect the elderly, is pervasive 23 throughout society, and persists unbated, 24 notwithstanding continuing efforts to combat the 25 stigma. 1 The stigma visited on individuals who are, 2 for the most part, poor and marginalized, with no 3 voice in the political system, is particularly 4 severe. 5 The New York SAFE Act of 2013 is 39 pages 6 long, and it includes wide-ranging changes to 7 New York State laws, from mental health and family 8 courts, to criminal procedure and business laws. 9 At bottom, the mental-health provisions of 10 the New York SAFE Act rests on fundamental 11 misapprehensions about the highly complex links 12 between violence, mental illness, and gun control. 13 You've heard it before, and I'll say it 14 again: 15 People with mental illness are no more 16 violent than the general population, and are, in 17 fact, actually 12 time more likely to be victims of 18 violent crime, as opposed to perpetrators. 19 Dr. Richard Friedman warned in a 20 "New York Times" article published one month prior 21 to the enactment of the SAFE Act: 22 That all the focus on the small people of 23 people -- small number of people with mental illness 24 who are violent serves to make us feel safer by 25 displacing and limiting the threat of violence to a 1 small, well-defined group. But the sad and 2 frightening truth, is that the vast majority of 3 homicides are carried out by outwardly normal people 4 in the grip of all too ordinary human aggression to 5 whom we provide nearly unfettered access to deadly 6 force. 7 We have three main concerns with the New York 8 SAFE Act: 9 New York's SAFE Act mandates the creation of 10 an enormous database with no privacy protections, 11 administered by New York State's Division of 12 Criminal Justice Services. 13 They call it the "Disqualifying-Data 14 Database." 15 The database contains the names and addresses 16 of all New Yorkers who live under a guardianship 17 order. 18 This is your grandmother with Alzheimer's 19 that you have pursued guardianship, so that you can 20 manage her funds to keep her at home for as long as 21 possible. 22 It includes people with a developmental 23 disability. Your son or daughter with 24 Down Syndrome. 25 And it includes people with a mental illness. 1 Your son with ADD. 2 The database is supposed to be used merely to 3 check to ensure there's no licensed firearm, but, 4 there are no privacy protections built into it. 5 The law does not exempt the 6 Disqualifying-Data Database from FOIL. 7 The lack of protection afforded the people 8 who are going to be in this Disqualifying-Data 9 Database stands in stark contrast to the new 10 New York State Police-controlled statewide license 11 and record database of the licensed gun owners in 12 New York. 13 The gun-owners database specifically exempts 14 the records assembled or collected for purposes of 15 inclusion in such database from disclosure pursuant 16 to FOIL. 17 This is an equal-protection violation. 18 State and local law enforcement should not 19 have carte blanche access to the names and 20 identifying information contained in this extensive 21 database about people under guardianship, people 22 with developmental disabilities, or people with 23 mental illness, or, people reported under 946. 24 Law-enforcement personnel routinely perceive 25 New Yorkers living with these disabilities through 1 the pejorative lens of emotionally disturbed 2 persons, or, "EDP," and New Yorkers are all too well 3 aware that law-enforcement encounters with EDPs 4 generally do not end well. 5 Research suggests that persons with DD or 6 mental-health issues are 7 times more likely to come 7 into contact with law enforcement than others. 8 There is extensive public memory of 9 high-profile interactions between law enforcement 10 and individuals with psychiatric disabilities that 11 have resulted in the death of numerous New Yorkers 12 over the years. 13 This is Eleanor Bumpurs; 14 This is Giton Bush [ph.]; 15 Kevin Cerbelli; 16 Recently, Mohamed Bah; 17 Darius Kennedy. 18 In addition to these well-publicized 19 incidents, many individuals with DD or mental 20 illness, and their families, have had strained 21 interactions of their own with members of law 22 enforcement. 23 The public and private experiences create a 24 perception that encounters with law enforcement can 25 have unintended results; injury, or even death. 1 In New York State, my experience has been, 2 that few, if any, disabled individuals possess, or 3 want to possess, firearms; yet New York SAFE Act 4 calls for criminal investigations of those persons 5 mandated into the Disqualifying-Data Database, and 6 ensures that there will be numerous and potentially 7 adverse contacts initiated between New Yorkers with 8 disabilities and law enforcement personnel who are 9 untrained in mental-health and disability issues. 10 There's already been a report suggesting 11 additional misconduct by the New York State Police 12 in carrying out their investigations. 13 There was a suggestion in a permit-revocation 14 situation in Erie County that DCJS and/or the 15 State Police may have had access to the New York 16 State Prescription-Drug Database, resulting in 17 confidential medical information being harvested in 18 order to pull weapons from a person who did not meet 19 the new 946 reporting standards. 20 The circumstances of that case are murky, but 21 we urge the Committee to conduct oversight over this 22 incident. 23 You have heard a lot about the 946 mandate. 24 I won't go into much detail here, other than 25 to note that, again, the reporting mandate 1 represents a major change in the presumption of 2 confidentiality that has been inherent in 3 mental-health treatment and recognized in 4 New York State, for years, decades. 5 This privilege is codified in the CPLR. 6 The reporting requirements you've heard have 7 had -- could have the undesired consequence of 8 deterring people from seeking or fully disclosing 9 during treatment. 10 I have to tell you, we have consulted as 11 well, as Ms. Anderson noted, with law-enforcement 12 professionals, police, corrections officers, who may 13 be deterred from seeking treatment for fear they 14 lose their firearms, and then their jobs. 15 We're also very much concerned that there 16 will be the potential for racial bias injected into 17 the 946 reporting regimen. 18 As you've heard, there is no age threshold 19 with respect to patients who must be reported to 20 DCJS. 21 And as we also heard, OMH is directing that 22 all children, ages 11 and up, be reported into the 23 database. 24 We know that many public-school students, 25 most often, young men of color, are inappropriately 1 transferred from school to psychiatric emergency 2 rooms for psychological evaluation following minor 3 classroom disturbances and disciplinary infractions. 4 And we've heard today that they're going into 5 the DCJS database, at a point in time where they 6 don't even have a mental illness, much less qualify 7 for 946 reports. 8 The concern about overreporting is not 9 hypothetical. You heard the numbers today. 10 It was reported that, in Westchester, they're 11 getting in reports at a hundred a clip, and it's 12 coming out of the hospital emergency rooms' 13 mental-health clinics. 14 An area that has not been touched on today, 15 except tangentially, is modification to 16 Kendra's Law, that have been affected by New York's 17 SAFE Act. 18 We -- I -- my testimony deals with three 19 areas. 20 There's so much more that could be talked 21 about today. 22 The duration of the initial assisted 23 outpatient treatment order has been extended to one 24 year, from the current six months. 25 When we litigated "K.L." before the court of 1 appeals, the court was very assured by the fact that 2 the duration of the initial order was a six-month 3 period, and did not think that there needed to be 4 modification to the due-process provisions set forth 5 Kendra's Law. 6 By extending that initial order term to a 7 period of 12 months, we think that there is some 8 serious issues with respect to the due-process 9 provisions contained in the statute. 10 The other provision, which relates to the 11 treatment order, quote, following the person from 12 one county to another when the person moves, it 13 appears to conflict with the mandates of 14 Kendra's Law that requires governmental units, as 15 part of its local or unified services plan, to plan 16 for the provision of services to individuals who may 17 be included in an AOT program administered, 18 supervised, or operated by the locality. 19 Each local governmental unit is required to 20 plan for the provision of mental-health services to, 21 quote, "high-need patients," as that term has been 22 defined by the Commissioner of Mental Health to 23 include Kendra's recipients. 24 The treatment order following the plan, the 25 person has the potential to wreak havoc on county 1 community mental-health planning budgets. 2 If the county wishes to make the treatment 3 services mandated, under a new residence, Kendra's 4 order are available to that person. 5 But while the Kendra's order imposes ongoing 6 mandated treatment and compliance obligations on the 7 recipient of the order, the modifications do nothing 8 to mandate the new county of residence to modify its 9 local or unified services plan to plan for the 10 provision of the services mandated to the newly 11 arrived Kendra's-order recipient. 12 When a Kendra's-order recipient is not 13 compliant with their treatment modality, whether 14 it's because they choose not to comply, or because 15 the services are unavailable, they can be, and are, 16 picked up and transported to a psychiatric facility. 17 To the extent that this provision 18 [unintelligible] Kendra's-order recipient from 19 relocating within New York State to a different 20 county of residence, we believe that this provision 21 of Kendra's Law [unintelligible] a violation of 22 New York citizens' constitutional right to 23 intrastate travel. 24 Kendra's law was set to sunset in 2015, and 25 would have been subjected to a fair amount of 1 scrutiny, as the Legislature has done in each of the 2 past five-year incremental extensions of time. 3 There is major evidence of racial bias as 4 these Kendra orders are entered. 5 There is major evidence of geographic 6 uncertainty. 7 If you're in an urban area downstate, 8 Long Island, or up in the Erie County, you tend to 9 be ordered more frequently than in other of the 10 counties. 11 The Legislature has very carefully moved 12 forward in assessing the efficacy of the Kendra's 13 regime, and, bumping it out another two years, 14 really, doesn't add anything to the process, and 15 really seems to be gratuitous. 16 I do want to make a final note on the 17 legislative process before I close here, and, you 18 know, at the Civil Liberties Union, we're 19 particularly concerned about this: 20 Like many significant areas of recent 21 legislation in New York State over the past few 22 years, the SAFE Act was crafted behind closed doors 23 by the Governor's Office, and pushed rapidly through 24 the Legislature, and immediately signed into law by 25 Governor Cuomo. 1 There was a message of necessity passed. 2 20 hours barely elapsed between the 3 introduction of the bill and signature by the 4 Governor. 5 The Senate approved the measure on its first 6 day in session after the New Year's holiday, at 7 11:30 at night, and the Assembly on the 2nd. 8 Few lawmakers, and no one in the public, had 9 time to read, digest, or debate the details, and, no 10 individuals with disabilities or their advocates or 11 mental-health professionals were consulted in 12 connection with the mental-health ramifications of 13 the legislation. 14 This legislative process makes a mockery of 15 the core democratic principles of transparency, 16 accountability, and public participation in 17 government. 18 The basic requirements of open government in 19 the legislative process, including public-comment 20 period and robust legislative debate, were 21 completely jettisoned in the enactment of this piece 22 of legislation. 23 I think most of us who advocate on behalf of 24 New Yorkers with developmental disabilities and 25 mental-health disabilities, the elderly, the young 1 alike, agree with [unintelligible] reflection that 2 last December's tragic Newtown School shooting has 3 offered all of us a kind of opportunity that only 4 comes once every generation or two: to rethink the 5 entire mental-health system with a focus on 6 re-envisioning community mental-health care, taking 7 steps to ensure more vigilance for problems in young 8 people, and ultimately reducing stigma. 9 I hope this Committee hearing is the 10 beginning of just such a process. 11 Thank you for the opportunity to testify 12 today. 13 SENATOR CARLUCCI: We really appreciate your 14 testimony, and all the work that you've done over 15 the years, with the extensive resume. 16 So, thank you for your service. 17 One question that I wanted to ask: 18 I know you touched upon the Freedom of 19 Information law. 20 Are there other recommendations from the 21 Civil Liberties Union that would protect people's 22 privacy? 23 BETH HAROULES: I think you really have to go 24 back. 25 There were modifications made to the 1 Mental Hygiene Law Privacy Protections, 3313, that 2 have been reconfigured in a way that, effectively, 3 strips everyone of their privacy rights. 4 These are putting all of this information 5 that, in the past, for example, there are certain 6 standards for including people with mental-health 7 and developmental disabilities interactions with OMH 8 and OPW into the federal mixed database. 9 You know, I think you need to go back to 10 where that process is, what those privacy 11 protections are, and, abandon the concept that DCJS 12 has the right to have access to confidential 13 mental-health, developmental disability, elder 14 information. There's no need for them to have a 15 database of all of these people. 16 It should not be administered by a 17 criminal-justice entity. 18 I mean, these are not people who need to be 19 tarred with a brush of criminal-justice oversight. 20 These are people with disabilities. 21 And, so, you know, our basic recommendation 22 is, it needs to be jettisoned, and you really have 23 to come to the table with all of the people, you 24 know, including many of the suggestions that were 25 made today, to look at exactly what it is that is 1 trying to be accomplished here. 2 You know, as I said, most people with 3 disabilities don't want weapons. 4 You know, the grandmother with Alzheimer's, 5 you know, it may be her family's guns, you know, 6 but, presumably, the family is already looking at 7 that. 8 DCJS is not going to send the State Police in 9 to batter down a grandmother's door, you would 10 think, but they have the right to do that. 11 And, there is no clarity, there are no 12 guidelines. 13 And I think what we've heard is: Everybody 14 into the bin, because nobody wants to be the person 15 that the "New York Post" reports on, for having 16 failed to exercise appropriate judgment; for the 17 State Police having to fail, you know, to go to 18 their door, because they were in the database. 19 You really need to start at square one with 20 this. 21 And there's a lot of us who are willing, and 22 available, to assist in the process. 23 SENATOR CARLUCCI: Great, thank you. 24 SENATOR VALESKY: One more question? 25 SENATOR CARLUCCI: Yeah, please. 1 SENATOR VALESKY: Has the Civil Liberties 2 Union looked at the Pretlow bill that's been 3 referred to by a few previous speakers? 4 BETH HAROULES: No, actually, and I would be 5 interested in seeing what that does. 6 You know, I think there are a lot of -- you 7 know, obviously, there are concerns when you have 8 bills that are introduced on behalf of providers, 9 versus, the actual advocates and the constituents 10 who are the people that are going to be impacted. 11 I did, actually, on the California law that 12 was alluded to, California is the state that has the 13 Tarasoff case in place. 14 It's a case, I believe from the '80s, where 15 reporting obligations imposed on treating 16 mental-health providers sort of came to first light. 17 And the California statute, as I understand 18 it, tracks very much what the requirements that were 19 imposed on treating mental-health professionals are 20 under the California Supreme Court case out there. 21 So, it's a little bit of a different 22 reporting regime. 23 I know clinicians are trained on that. 24 The New York, sort of, approach has mirrored 25 that, but there's never been a Tarasoff reporting 1 requirement in New York State. And I think you need 2 to look at what Tarasoff was, who it applies to. 3 In my submission, I also pointed out the 4 irony of the fact that, for all of the mandated 5 groups of individuals under 946, State workers are 6 exempt. 7 So, there doesn't seem to be really -- you 8 know, if you're looking at who the appropriate 9 reporters are, to exempt out a lot of people who are 10 working off licensing out of New York State 11 Education simply because they're employed by a state 12 developmental disability setting or an Office of 13 Mental Health facility, it -- really, there's no 14 logic there. 15 SENATOR CARLUCCI: Great. Thank you. 16 SENATOR VALESKY: Thank you very much. 17 SENATOR CARLUCCI: Next we'll hear from 18 Kim Williams, who's the director of the Center for 19 Policy, Advocacy, and Education for the 20 Mental Health Association of New York City. 21 KIM WILLIAMS: Hi. 22 So, good afternoon. 23 SENATOR VALESKY: Hello. 24 KIM WILLIAMS: Senator Carlucci, 25 Senator Valesky, thank you for the opportunity to 1 testify this afternoon on the provisions of the 2 New York State SAFE Act relating to mental-health 3 services and mental-health-professional reporting 4 requirements. 5 My name is Kimberly Williams. I'm the 6 director of the Center for Policy, Advocacy, and 7 Education at the Mental Health Association of 8 New York City (MHANYC). 9 MHA is a not-for-profit organization that has 10 a three-part mission of direct service, advocacy, 11 and education, and, is a national leader in ensuring 12 that people in emotional distress get the help they 13 need. 14 And, our policy center promotes the 15 development of an advocacy for mental-health 16 policies and services that support high-quality 17 practices designed to meet the mental-health needs 18 of the diverse population in New York, as well as 19 across the United States, and to provide training, 20 technical assistance, and public education. 21 MHA of New York City is deeply concerned 22 about the impact that the New York State SAFE Act 23 will have on the rights of, and access to care for, 24 people with mental illness. 25 This law erroneously associates mental 1 illness with violence and dangerous criminal 2 behavior, further stigmatizing people with mental 3 illness, and which may, in fact, prevent people from 4 seeking the care that they need. 5 As has been stated, murders and overall 6 violence are extremely rare by people with mental 7 illness. 8 And, in fact, only about 4 percent of 9 violence in the United States can be attributed to 10 people with mental illness, and most of these 11 violence -- violent acts do not involve guns. 12 In fact, firearms result in nearly twice as 13 many suicides than homicides in this country every 14 year. 15 And while the mental-health components of 16 this law are intended to protect individuals who may 17 be of harm to themselves, it may actually deter 18 people from seeking treatment, or fully disclosing 19 to their therapist or doctor their suicidal 20 ideation, for fear of losing the right to possess 21 firearms, and, fear around privacy issues. 22 Additionally, longstanding laws, as have been 23 noted, already encourage mental-health professionals 24 to warn the appropriate parties if they believe 25 clients are in danger of harming themselves or 1 others. 2 Therefore, the SAFE Act is unlikely to 3 identify dangerous people who would not otherwise be 4 reported; but, rather, instead, discourage people 5 from seeking help in the first place. 6 The real mental-health issue in gun violence 7 is suicide, which we need to be confronting in a 8 non-stigmatizing manner that encourages people to 9 get help. 10 Firearms are the most common and most lethal 11 method of suicide. 12 And as I already stated, they result in more 13 suicides than homicides each year. 14 Access to firearms dramatically increases the 15 risk for completing suicide due to the lethality of 16 gunshot wounds, which occurs so quickly, and with 17 such force, that suicide attempts using firearms 18 leave people with little opportunity to survive a 19 suicide attempt. 20 While over 90 percent of people who survive a 21 suicide attempt will not go on later to complete 22 suicide, people generally do not survive 23 self-inflicted gunshot blasts. 24 If we want to reduce gun violence in the 25 state of New York, we need to focus on effective 1 means for suicide prevention that do not infringe on 2 an individual's right to privacy, but that do reduce 3 a suicidal person's access to highly lethal means, 4 and foster, not discourage, getting help. 5 Limiting access to guns during periods of 6 vulnerability is critical to saving lives. 7 Limiting access is not about gun control or 8 about permanently removing firearms, but about safe 9 dispensation, use, and storage of legal firearms. 10 Limiting access to lethal means is also about 11 ensuring that health and mental-health professionals 12 are trained to assess for risk of suicide, and on 13 how to counsel individuals at risk about limiting 14 his or her access to lethal means until they are no 15 longer in crisis. 16 This is known as "lethal-means counseling," 17 and it involves acquiring of the individual, and 18 with permission from his or her family members, 19 about whether there are firearms or other lethal 20 means in the home, and working with them to 21 temporarily, rather than permanently, limit access 22 until the crisis is averted. 23 Local law enforcement or a family member or a 24 friend may be able to temporarily store the firearm 25 until the circumstances improve. 1 Suicidal crises do not last. Many have an 2 impulsive component and occur during a short-time 3 crisis. 4 To implement the suicide-prevention approach 5 on a wide scale, professional groups can add 6 lethal-means-counseling protocols to their current 7 suicide-prevention protocols. 8 Providers can also get trained in 9 firearms-safety-counseling methods, such as the 10 CALM training, which stands for "counseling on 11 access to lethal means." 12 Another important and innovative way to limit 13 access to lethal means is to partner with the 14 gun-owning community to increase their involvement 15 in promoting suicide prevention. 16 This promising approach, which is being 17 implemented in other states, includes incorporating 18 suicide-prevention awareness as part of basic 19 firearms-safety training; developing guidelines with 20 gun-store and firing-range owners about how to 21 recognize a customer who is in distress, and avoid 22 selling or renting a firearm to a customer; and 23 encouraging gun-store and fire-range owners to 24 display and distribute suicide-prevention materials. 25 We are fortunate at the Mental Health 1 Association to have received a small grant from the 2 New York State Office of Mental Health to pilot such 3 a suicide-prevention initiative. 4 It's a gunshop project here in the state of 5 New York which we'll be implementing over the next 6 few months, and will be happy to share with you some 7 results of that project. 8 If we can implement commonsense approaches, 9 these commonsense measures like these, as part of a 10 comprehensive approach to suicide prevention, we can 11 increase the time that passes between impulse and 12 action; and, therefore, increase chances of 13 survivor, all while maintaining an individual's 14 rights, and encouraging help-seeking. 15 We encourage the New York State Senate to use 16 this opportunity to save lives by doing more about 17 the most common way in which guns cause death: by 18 supporting comprehensive suicide-prevention efforts 19 that incorporate limiting access to lethal means, 20 including firearms. 21 Thank you for the opportunity to testify. 22 SENATOR CARLUCCI: Thank you, Ms. Williams. 23 And we look forward to working with you as 24 the Mental Health Committee, and working on 25 strategies towards effective suicide prevention. 1 So, some of the items in your testimony are 2 very helpful, and we look forward to hearing more 3 from you in ways that we can work together. 4 KIM WILLIAMS: I would be happy to share 5 more. 6 SENATOR VALESKY: Thank you for the work that 7 you're doing right here. 8 Thanks. 9 KIM WILLIAMS: Thank you. 10 SENATOR CARLUCCI: Thank you. 11 And that completes the list of speakers. 12 I think we have everyone. 13 Is there anyone else in attendance that 14 wanted to speak? 15 Okay. 16 Well, we appreciate your time, and for being 17 here, and working with us, to make sure that we 18 fight stigma with mental health, and make sure that 19 we do what is intended in this law: to protect 20 people, and to keep people safe in New York State. 21 With that, I want to thank everyone for 22 attending. 23 And, this hearing of the Mental Health 24 Committee is adjourned. 25 Thank you. 1 (Whereupon, at approximately 3:41 p.m., 2 the public hearing held before the New York State 3 Senate Standing Committee on Mental Health and 4 Developmental Disabilities concluded, and 5 adjourned.) 6 ---oOo--- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25