Senate Bill S3482

2009-2010 Legislative Session

Relates to the transmission of data to the FBI by the department of mental hygiene regarding requests for possession of a firearm

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Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to mental health and developmental disabilities
Apr 29, 2009	reported and committed to codes
Mar 20, 2009	referred to mental health and developmental disabilities

2009-S3482 (ACTIVE) - Details

Current Committee:: Senate Mental Health And Developmental Disabilities
Law Section:: Mental Hygiene Law
Laws Affected:: Amd §§7.09, 13.09 & 33.13, Ment Hyg L

2009-S3482 (ACTIVE) - Summary

Relates to the transmission of data to the FBI by the department of mental hygiene regarding requests for possession of a firearm.

2009-S3482 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3482

 TITLE OF BILL :

An act to amend the mental hygiene law, in relation to the
transmission of data to the federal bureau of investigation to
complete background checks relating to the possession and acquisition
of a firearm


 PURPOSE :

This bill would make technical and clarifying amendments to the Mental
Hygiene Law to facilitate: (1) the creation of a relief from
disabilities program for persons to challenge a denial of a request
for acquisition of a firearm based on their mental health history; and
(2) the transmission of data that would disqualify a person from
acquiring a firearm.

 SUMMARY OF PROVISIONS :

Sections 1 and 2 of the bill would amend Mental Hygiene Law §§ 7.09
and 13.09, which authorize the Office of Mental Health (OMH) and the
Office of Mental Retardation and Developmental Disabilities (OMRDD) to
collect and transmit to federal authorities certain data regarding an
individual's mental health history that would disqualify the

individual from purchasing or possessing firearms. These amendments
would clarify that OMH and OMRDD may contact the individual who is
seeking to purchase or possess a firearm, or the individual's health
or mental hygiene provider, to receive information that the agency
deems necessary to make a decision regarding a petition for relief
from the disability, pursuant to a program that the State is mandated
to create in order to comply with the federal National Instant
Criminal Background Check System (NICS) Improvement Amendments Act of
2007.

These sections also provide that court proceedings brought against OMH
or OMRDD to challenge the agency determination to deny a petition for
relief from disabilities for a person who was denied a firearm are to
be brought under Civil Practice Law and Rules (C.P.L.R.) Article 4 in
the county in which the agency determination was made. It also
provides for a four-month statute of limitations for such proceedings.

Section 2 of the bill also would amend Mental Hygiene Law § 13.09(f)
to clarify that the Office of Court Administration (OCA), not OMRDD,
is responsible for transmission to federal authorities of data for all
individuals with guardians, including guardians of persons with
developmental disabilities OMRDD retains responsibility for
transmission of data regarding persons with developmental disabilities
who are involuntarily committed to OMRDD residential facilities.

Section 3 of the bill would amend Mental Hygiene Law §§ 33.13(b) to
clarify  OMH and OMRDD retain the authority to access names, clinical
records and other identifiable information of patients or clients from
entities licensed or operated by OMH or OMRDD.

Section 4 of the bill sets forth the effective date.

 EXISTING LAW :

Chapter 491 of the Laws of 2008 authorized the Commissioners of OMH
and OMRDD, as well as OCA, to collect, retain, modify and transmit
data and records to NICS, to be used to determine whether persons who
seek to purchase firearms are legally authorized to do so. This data
includes only the names and other non-clinical identifying information
of persons: (1) who have been involuntarily committed in hospitals
licensed or operated by OMH or residential facilities under the
jurisdiction of OMRDD; or (2) who have legal guardians appointed
because of mental disability. In addition, this authorization applies
to such data and records relating to sex offenders who are civilly
confined in secure treatment facilities operated by OMH.

This chapter also requires the Commissioners of OMH and OMRDD to
establish an administrative process to permit a person who has been or
may be disqualified from possessing a firearm to petition for relief
from that disability in writing, where the person's record and
reputation are such that the person "will not be likely to act in a
manner dangerous to public safety and where the granting of relief
would not be contrary to public safety." OMH and OMRDD have the
authority to require such a petitioner to undergo a clinical
evaluation and risk assessment and the agencies must issue a written
decision explaining the reasons for denying or granting such relief.
Denial of a petition would be reviewed de novo pursuant to C.P.L.R.
Article 78.

Chapter 491 of the Laws of 2008 further requires facilities licensed,
funded or administered by OMH to provide non-clinical identifying
information to OMH, in a form and format requested by the
Commissioner, and requires hospitals to provide OMH with appropriate
records, upon request, for transmission to the Criminal Justice
Information Services Division of the Federal Bureau of Investigation
(FBI) for inclusion in NICS.  However, OMRDD was not so authorized.
The legislation also authorizes OMH and OMRDD to release appropriate
identifying information regarding patients or clients to the Division
of Criminal Justice Services (DCJS) for subsequent transmittal to tbe
FBI or authorizes OMH and OMRDD to transmit that information directly
to the FBI.  Finally, the law amended the Judiciary Law to require the
Chief Administrator of the Courts (OCA) to adopt rules to require the
transmission of appropriate records to DCJS, or directly to the FBI,
which identify incapacitated persons or other persons with mental
disabilities who are disqualified from possessing firearms as a result
of having a guardian appointed for them.

 LEGISLATIVE HISTORY :

This is a new proposal

 STATEMENT IN SUPPORT

The proposed amendments are primarily intended to facilitate
compliance with federal law - the NICS Improvement Amendments Act of
2007- which provides that when a person is denied the ability to
purchase or possess a firearm as a result of information provided by
an administrative agency, then the person may apply for relief from
the disability and is entitled to have a hearing de novo in court.
Proceedings under CPLR Article 78, however, are typically not
proceedings de novo, but are proceedings to review the prior action of
an administrative agency. To ensure that the proceeding to be
commenced in court will in fact be a hearing de novo, this bill would
amend the new State statute enacted as part of Chapter 491 of the Laws
of 2008 to provide that the special proceeding to challenge an
agency's denial of a petition for relief from disabilities be
commenced under CPLR Article 4. The bill also includes a four-month
statute of limitations for such proceedings to be commenced, in order
to ensure that the proceedings are timely.

This bill would also amend Mental Hygiene Law §§ 7.09(j) and 13.09(f)
by providing that such a special proceeding seeking relief from
disability to possess a firearm may only be commenced in the county in
which the respondent agency made its determination to deny the
petition for relief. These amendments are designed to save State
resources, particularly travel and staff time, by ensuring that such
proceedings, which may require the testimony or other participation by
agency personnel, occur close to the agency's central office where the
determination to deny the person's petition for relief from disability
was made. Notably, while the NICS Improvement Amendments Act now
requires states to transmit the disqualifying mental health data to
the NICS database, and to have an appeals/relief from disability
process for persons denied the ability to purchase a firearm as a
result of a mental health record, no federal funds have been
appropriated to defray states' costs in this regard. However, if
states fail to comply with the federal mandate, they face reductions
in their federal grant funding.

The bill would also clarify that OCA, not OMRDD, would be responsible
for transmitting data to the NICS database concerning persons who have
a legal guardian appointed for them due to mental disability, as
provided for in Chapter 491. This is necessary as OCA is the custodian
of the guardianship records for all such individuals.

 BUDGET IMPLICATIONS :

No costs to the State.

 EFFECTIVE DATE :
This bill would take effect immediately.

2009-S3482 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3482

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 20, 2009
                               ___________

Introduced  by  Sen.  HUNTLEY  --  (at  request  of the Office of Mental
  Health) -- read twice and ordered printed,  and  when  printed  to  be
  committed to the Committee on Mental Health and Developmental Disabil-
  ities

AN  ACT to amend the mental hygiene law, in relation to the transmission
  of data to the federal bureau of investigation to complete  background
  checks relating to the possession and acquisition of a firearm

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision (j) of section 7.09 of the mental hygiene  law,
as  added  by  chapter  491  of  the laws of 2008, is amended to read as
follows:
  (j) The commissioner, in cooperation with other applicable state agen-
cies, shall be authorized to collect, retain or modify data or  records,
or  to transmit such data or records to the division of criminal justice
services, or to the criminal justice information  services  division  of
the  federal  bureau of investigation, for the purposes of responding to
queries to the national instant criminal background check system regard-
ing attempts to purchase or otherwise take possession  of  firearms,  as
defined  in 18 USC 921(a)(3), in accordance with applicable federal laws
or regulations. Such records shall include only  names  and  other  non-
clinical  identifying information of persons who have been involuntarily
committed to a hospital pursuant to article nine  of  this  chapter,  or
article seven hundred thirty or section 330.20 of the criminal procedure
law  or  sections 322.2 or 353.4 of the family court act, or to a secure
treatment facility pursuant to article ten of this chapter. The  commis-
sioner shall establish within the office of mental health an administra-
tive process to permit a person who has been or may be disqualified from
possessing  such  a firearm pursuant to 18 USC 922(4)(d) to petition for
relief from that disability where such person's  record  and  reputation
are  such that such person will not be likely to act in a manner danger-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07442-02-9

S. 3482                             2

ous to public safety and where the granting of the relief would  not  be
contrary to public safety. The commissioner shall promulgate regulations
to  establish the relief from disabilities program, which shall include,
but  not be limited to, provisions providing for: (i) an opportunity for
a disqualified person to  petition  for  relief  in  writing;  (ii)  the
authority  for the agency to require that the petitioner undergo a clin-
ical evaluation and risk assessment; and (iii) a  requirement  that  the
agency  issue  a decision in writing explaining the reasons for a denial
or grant of relief.  THE AGENCY IS AUTHORIZED TO CONTACT THE PETITIONER,
OR ANY HEALTH OR MENTAL HYGIENE PROVIDER OF THE PETITIONER,  TO  RECEIVE
INFORMATION  IT  DEEMS  NECESSARY  TO MAKE A DETERMINATION REGARDING THE
PETITION FOR RELIEF. The denial of a petition for relief from  disabili-
ties  may  be reviewed de novo pursuant to the proceedings under article
[seventy-eight] FOUR of the civil practice law and rules, EXCEPT THAT  A
PROCEEDING  TO REVIEW THE DENIAL OF A PETITION FOR RELIEF FROM DISABILI-
TIES SHALL BE COMMENCED IN THE COUNTY  IN  WHICH  THE  AGENCY  MADE  THE
DETERMINATION  TO  DENY  THE  PETITION  AND  SUCH  PROCEEDING  SHALL  BE
COMMENCED  WITHIN  FOUR  MONTHS  FROM   THE   DATE   OF   THE   AGENCY'S
DETERMINATION.
  S  2.  Subdivision  (f) of section 13.09 of the mental hygiene law, as
added by chapter 491 of the laws of 2008, is amended to read as follows:
  (f) The commissioner, in cooperation with other applicable state agen-
cies, shall be authorized to collect, retain or modify data or  records,
or  to transmit such data or records to the division of criminal justice
services, or to the criminal justice information  services  division  of
the  federal  bureau of investigation, for the purposes of responding to
queries to the national instant criminal background check system regard-
ing attempts to purchase or otherwise take possession  of  firearms,  as
defined  in 18 USC 921(a)(3), in accordance with applicable federal laws
or regulations. Such records shall include only  names  and  other  non-
clinical  identifying  information  of  persons who [have had a guardian
appointed for them pursuant to any provision of state law,  based  on  a
determination  that as a result of marked subnormal intelligence, mental
illness, incapacity, condition or disease, they lack the mental capacity
to contract or manage their own affairs,  and  persons  who]  have  been
involuntarily  committed  to  a  facility pursuant to article fifteen of
this chapter, or article seven hundred thirty or section 330.20  of  the
criminal  procedure  law  or sections 322.2 or 353.4 of the family court
act. The commissioner shall establish within the office of mental retar-
dation and  developmental  disabilities  an  administrative  process  to
permit a person who has been or may be disqualified from possessing such
a  firearm pursuant to 18 USC 922(4)(d) to petition for relief from that
disability where such person's record and reputation are such that  such
person  will not be likely to act in a manner dangerous to public safety
and where the granting of the relief would not  be  contrary  to  public
safety.  The  commissioner shall promulgate regulations to establish the
relief from disabilities program, which shall include, but not be limit-
ed to, provisions providing for: (i) an opportunity for  a  disqualified
person  to  petition  for  relief in writing; (ii) the authority for the
agency to require that the petitioner undergo a clinical evaluation  and
risk  assessment;  and (iii) a requirement that the agency issue a deci-
sion in writing explaining the reasons for a denial or grant of  relief.
THE  AGENCY  IS  AUTHORIZED  TO CONTACT THE PETITIONER, OR ANY HEALTH OR
MENTAL HYGIENE PROVIDER OF THE PETITIONER,  TO  RECEIVE  INFORMATION  IT
DEEMS  NECESSARY  TO  MAKE  A  DETERMINATION  REGARDING THE PETITION FOR
RELIEF. The denial of a petition for relief  from  disabilities  may  be

S. 3482                             3

reviewed  de  novo  pursuant  to the proceedings under article [seventy-
eight] FOUR of the civil practice law and rules, EXCEPT THAT A  PROCEED-
ING  TO  REVIEW  THE  DENIAL  OF A PETITION FOR RELIEF FROM DISABILITIES
SHALL  BE  COMMENCED IN THE COUNTY IN WHICH THE AGENCY MADE THE DETERMI-
NATION TO DENY THE PETITION AND SUCH PROCEEDING SHALL BE COMMENCED WITH-
IN FOUR MONTHS FROM THE DATE OF THE AGENCY'S DETERMINATION.
  S 3. Subdivision (b) of section 33.13 of the mental  hygiene  law,  as
amended  by  chapter  491  of  the  laws  of 2008, is amended to read as
follows:
  (b) The commissioners may require that [statistical] information about
patients or clients SHALL be reported to the offices, INCLUDING BUT  NOT
LIMITED  TO,  ANY  INFORMATION  OR  RECORDS  WHICH  IDENTIFY PATIENTS OR
CLIENTS, CLINICAL RECORDS OR CLINICAL INFORMATION  TENDING  TO  IDENTIFY
PATIENTS  OR  CLIENTS,  OR  OTHER  STATISTICAL  INFORMATION.   [Names of
patients treated at out-patient or non-residential facilities shall  not
be  required  as  part  of  any  such reports. Hospitals licensed by the
office of mental health and  general  hospitals  shall  provide  to  the
office  of  mental  health,  upon  request,  records relating to persons
described in subdivision (j) of section 7.09 of this chapter who may  be
disqualified from possessing a firearm pursuant to 18 USC 422(4)(d).]
  S  4.  This act shall take effect immediately, provided, however, that
the amendments to subdivision (b) of section 33.13 of the mental hygiene
law made by section three of this act shall take effect on the same date
as the reversion of such subdivision as provided in section 18 of  chap-
ter 408 of the laws of 1999, as amended.

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Senate Bill S3482

Sponsored By

Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

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2009-S3482 (ACTIVE) - Details

2009-S3482 (ACTIVE) - Summary

2009-S3482 (ACTIVE) - Sponsor Memo

2009-S3482 (ACTIVE) - Bill Text download pdf

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Sponsored By

Shirley L. Huntley

Archive: Last Bill Status - In Senate Committee Mental Health And Developmental Disabilities Committee

Actions

2009-S3482 (ACTIVE) - Details

2009-S3482 (ACTIVE) - Summary

2009-S3482 (ACTIVE) - Sponsor Memo

2009-S3482 (ACTIVE) - Bill Text download pdf

Comments