NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3431
SPONSOR: Pretlow TITLE OF BILL:
An act to amend the mental hygiene law, in relation to reports of
substantial risk or threat of harm by mental health professionals; and
repealing certain provisions of such law relating thereto
PURPOSE OR GENERAL IDEA OF BILL:
This bill will revise the Safe Act to conform to HIPAA requirements.
Disclosing only when there is a serious and imminent threat to health
and safety.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Section 9.46 (a)of the mental hygiene law reports substantial
risk or threat of harm by mental health professionals shall include a
physician, psychologist, nurse practitioner or licensed clinical social
worker.
(b) For this section the term law enforcement agency shall include the
New York State police and the police department of County, town, city or
village in the state.
(c) Nothing shall be, construed in this section to require a mental
health professional to take any action that would endanger the mental
health professional or increase danger to a potentially endangered
person or persons.
(d) The decision of a mental health professional, be it by absent malice
or intentional misconduct, to disclose or not disclose shall not be
reason for civil or criminal liability of the mental health profes-
sional.
JUSTIFICATION:
Currently there is a distinction between the New York Safe Act and HIPPA
standard law. On its face, it might appear that the SAFE Act reporting
requirement does not run afoul of HIPAA because it falls under the
"required by law" exception. This exception permits providers to use or
disclose PHI to the extent that such use or disclosure of PHI and that
is enforceable in a court of law, including statutes or regulations that
require the production of information. Although the SAFE Act does not
establish a reporting requirement imposed on mental health practition-
ers, it does not meet the "required by law" standard set forth in HIPPA
because it is not truly compulsory. The SAFE Act reporting requirement
does not compel disclosure under all circumstances because of two
provisions that significantly limit its scope and enforceability.
First, subsection (c) of the reporting requirement states that no mental
health professional shall be required "to take.any action which, in the
exercise of reasonable professional judgment, would endanger such mental
health professional or increase the danger to 'a potential victim or
victims." This language sets forth explicit circumstances under which
health care provider would not be compelled to make a report (i.e.,
potential danger to the provider or potential victims). Second,
subsection (d) of the reporting requirement provides that the decision
of a mental health professional "to disclose or not disclose, when we
made reasonably and in good faith, shall not be the basis for any civil
or criminal liability." Under both (c) and (d), no sanction or potential
liability may be imposed upon a mental health provider who, reasonably
and in good faith, decides not to report.
The reporting requirement under the SAFE Act must be distinguished from
other compulsory reporting requirements, such as New York Social
Services Law 413, a law that unequivocally compels the release of infor-
mation without any limitations or expectations whatsoever.
Section 413 is in violation of HIPAA and subject, to federal sanctions,
As a result', in order to avoid HIPAA preemption, the SAFE Act must be
revised to conform to HIPAA requirements, i.e., disclosure only when
there is a serious and imminent threat to health and safety and disclo-
sure is made to "a person reasonably able to prevent or lessen the
threat including the target of the threat."
LEGISLATIVE HISTORY:
01/12/15 referred to mental health
01/06/16 referred to mental health
2017/2018 referred to mental health
2019-2020 A4693 referred to mental health
2022 01/05/22 A3455 referred to mental health
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
3431
2023-2024 Regular Sessions
IN ASSEMBLY
February 3, 2023
___________
Introduced by M. of A. PRETLOW -- read once and referred to the Commit-
tee on Mental Health
AN ACT to amend the mental hygiene law, in relation to reports of
substantial risk or threat of harm by mental health professionals; and
repealing certain provisions of such law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 9.46 of the mental hygiene law is REPEALED and a
2 new section 9.46 is added to read as follows:
3 § 9.46 Reports of substantial risk or threat of harm by mental health
4 professionals.
5 (a) For purposes of this section, the term "mental health profes-
6 sional" shall include a physician licensed pursuant to article one
7 hundred thirty-one of the education law; a psychologist licensed pursu-
8 ant to article one hundred fifty-three of the education law; a nurse
9 practitioner licensed pursuant to article one hundred thirty-nine of the
10 education law; or a licensed clinical social worker licensed pursuant to
11 article one hundred fifty-four of the education law.
12 (b) Notwithstanding any other law to the contrary, when a mental
13 health professional, currently providing mental health treatment
14 services to a person, determines that such person presents a serious and
15 imminent danger to self or others, he or she is authorized to disclose
16 such determination as follows: (i) to an endangered individual or indi-
17 viduals, if identifiable; (ii) to a law enforcement agency and (iii) as
18 soon as practical, to the director of community service or the direc-
19 tor's designee, in such manner and form as directed by the commissioner.
20 The reasons for such disclosure shall be fully documented in the treat-
21 ment record of such person. The director of community service or the
22 director's designee shall report to the division of criminal justice
23 services whenever he or she agrees that the person presents a serious
24 and imminent danger to self or others. Information transmitted to the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08195-01-3
A. 3431 2
1 division of criminal justice services shall be limited to the name and
2 other non-clinical identifying information regarding the person who is
3 the subject of the disclosure, which may be used by the division of
4 criminal justice services only for determining whether a license issued
5 pursuant to section 400.00 of the penal law should be suspended or
6 revoked, or for determining whether a person is ineligible for a license
7 issued pursuant to section 400.00 of the penal law, or is no longer
8 permitted under state or federal law to possess a firearm. For purposes
9 of this section, the term "law enforcement agency" shall include the New
10 York state police and the police departments of a county, town, city or
11 village in the state.
12 (c) Nothing in this section shall be construed to require a mental
13 health professional to take any action which, in the professional judg-
14 ment of the mental health professional, would endanger such mental
15 health professional or increase the danger to a potential endangered
16 person or persons.
17 (d) Absent malice or intentional misconduct, the decision of a mental
18 health professional to disclose or not to disclose in accordance with
19 this section shall not be the basis for any civil or criminal liability
20 of such mental health professional.
21 § 2. This act shall take effect immediately.
