NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7046
SPONSOR: Lavine TITLE OF BILL: An act to amend the judiciary law and the mental
hygiene law, in relation to requiring a recent psychiatric evaluation of
a petitioner seeking relief from firearms disabilities
PURPOSE OR GENERAL IDEA OF BILL:
This bill would establish consistent standards for requiring a recent
psychiatric evaluation under the three separate programs whereby a
person who is not permitted to possess firearms due to issues of mental
health/mental incapacity may petition a reviewing authority for relief
from such firearms disability.
SUMMARY OF SPECIFIC PROVISIONS:
Bill § 1 amends paragraph (q) of subdivision 2 of § 212 of the Judiciary
Law to require the Chief Administrator of the Courts to adopt rules
concerning the relief from disabilities ' program for those individuals
who have had guardians appointed for them due to an incapacity to manage
their own affairs, and as a result were prohibited from purchasing or
possessing firearms. Such rules are already substantially in place -
however, this amendment further provides for required submission of a
recent psychiatric evaluation of the petitioner for relief by a quali-
fied psychiatrist, unless the petitioner submits evidence demonstrating
that the original disqualification was issued in error.
Bill §§ 2 & 3 amend subdivision (j) of § 7.09 and subdivision (g) of §
13.09 of the Mental Hygiene Law concerning the administrative relief
from disabilities programs of the Office of Mental Health (OMR) and the
Office for People with Developmental Disabilities (OPWDD), respectively.
Each provides that the program regulations must require submission of a
recent psychiatric evaluation of the petitioner for relief by a quali-
fied psychiatrist, unless the petitioner submits evidence demonstrating
that the original disqualification was issued in error.
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: 2 This bill would
establish consistent standards for the requirement of a recent psychiat-
ric evaluation in place of the three separate standards that are
currently applied by the applicable reviewing authorities.
JUSTIFICATION:
The Federal "NICS Improvement Amendments Act of 2007" (P1.110-180)
required every state to establish a qualifying mental health relief from
firearms disabilities program meeting certain minimum criteria. Among
such criteria was a requirement that the reviewing authority must
receive and consider evidence concerning the applicant's record, includ-
ing his or her mental health record. However, no specific procedure was
mandated.
In response to the federal law, rules and regulations were adopted by
the three entities in New York State that oversee decisions that
disqualify an individual from purchasing or possessing firearms. The
standards put in place by the three reviewing authorities are generally
consistent -- except with regard to the requirement for submission of a
recent psychiatric evaluation of the petitioner:
-The Chief Administrator's rules (22 NYCRR Part 148) require "a current
psychiatric evaluation, unless waived by the person deciding the appli-
cation.'
-OMH regulations (14 NYCRR Part 543) provide that the applicant "may
provide a psychiatric evaluation performed no earlier than 90 calendar
days" from the submission of the request for relief. OMH "reserves the
right to request that the applicant undergo a clinical evaluation...."
-OPWDD regulations (14 NYCRR Part 643) provide that the applicant "must
provide a psychiatric evaluation performed no earlier than 90 calendar
days" from the submission of the request for relief. OPWDD also
"reserves the right to request that the applicant undergo a clinical
evaluation...."
There is no reason for such inconsistencies in the requirement for
submission of a psychiatric evaluation. The consequences of conducting a
pro forma file review and failing to obtain this crucial information on
the applicant's psychiatric status are potential calamitous. With the
number of petitions for relief expected to increase as a result of
passage of the SAFE Act, a consistent requirement for a recent evalu-
ation will also help screen out petitions that are clearly unjustifia-
ble, thereby conserving public resources. There is no reason to provide
a free taxpayer-funded psychiatric assessment of someone whom no psychi-
atrist would approve to regain the right to own firearms.
In responding to comments on its permissive policy, OMH indicated that
its concern was over the cost to applicants for relief when extenuating
circumstances exist, as in the case of an applicant who is misidentified
within the NICS system. This bill addresses the concern for cases of
mistaken identity, but ensures that other cases will receive the a thor-
ough review they merit. This will prevent bureaucratic snafus and ensure
that petitioners who represent a danger to public safety do not "slip
through the cracks" of the system.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
No adverse fiscal impacts are expected. On the contrary, it is likely
that the requirement that a petitioner must submit a recent psychiatric
evaluation will help to deter petitions that lack any merit, thereby
conserving state and local resources that would otherwise be wasted in
considering frivolous petitions.
EFFECTIVE DATE:
First day of January after having become a law.
