Senate Bill S5696

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

                                  5696

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 28, 2015
                               ___________

Introduced by Sens. O'MARA, GALLIVAN, MARCHIONE, NOZZOLIO, SEWARD, YOUNG
  -- read twice and ordered printed, and when printed to be committed to
  the Committee on Mental Health and Developmental Disabilities

AN  ACT  to  amend  the  mental  hygiene  law, in relation to reports of
  substantial risk or threat of harm by mental health professionals

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

  Section 1. Section 9.46 of the mental hygiene law, as added by chapter
1 of the laws of 2013, is amended to read as follows:
S 9.46 Reports  of  substantial  risk or threat of harm by mental health
         professionals.
  (a) For purposes of this section,  the  term  "mental  health  profes-
sional"  shall  include  a  physician, psychologist, registered nurse or
licensed clinical social worker.
  (b) Notwithstanding any other law  to  the  contrary,  when  a  mental
health  professional  currently providing treatment services to a person
determines, in the exercise of reasonable  professional  judgment,  that
such  person is likely to engage in conduct that would result in serious
harm to self or others, he or she shall be required to report,  as  soon
as practicable, to the director of community services, or the director's
designee[, who shall report to the division of criminal justice services
whenever  he  or  she agrees that the person is likely to engage in such
conduct]. ANY REPORT MADE BY A MENTAL HEALTH PROFESSIONAL TO THE  DIREC-
TOR  OF  COMMUNITY  SERVICES,  OR  THE DIRECTOR'S DESIGNEE SHALL INCLUDE
CURRENT CONTACT INFORMATION FOR SUCH PERSON INCLUDING, BUT  NOT  LIMITED
TO,  THE  PERSON'S:  (1) NAME, (2) MAILING ADDRESS, (3) PHONE NUMBER AND
(4) EMAIL ADDRESS. THE DIRECTOR OF COMMUNITY SERVICES OR THE  DIRECTOR'S
DESIGNEE  SHALL REPORT TO THE DIVISION OF CRIMINAL JUSTICE SERVICES UPON
A FINDING THAT THE PERSON IS LIKELY TO  ENGAGE  IN  CONDUCT  THAT  WOULD
RESULT IN SERIOUS HARM TO SELF OR OTHERS. Information transmitted to the
division  of  criminal  justice  services  shall be limited to names and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11149-02-5
              

S. 5696                             2

other non-clinical identifying information, which may only be  used  for
determining  whether  a license issued pursuant to section 400.00 of the
penal law should be suspended or revoked, or for determining  whether  a
person  is ineligible for a license issued pursuant to section 400.00 of
the penal law, or is no longer permitted under state or federal  law  to
possess a firearm.
  (c)  THE  DIRECTOR  OF  COMMUNITY  SERVICES OR THE DIRECTOR'S DESIGNEE
SHALL INFORM SUCH PERSON VIA WRITTEN NOTICE WHEN A REPORT REGARDING  THE
SUBSTANTIAL  RISK  OR  THREAT OF HARM POSED BY THE PERSON IS SENT TO THE
DIVISION OF CRIMINAL JUSTICE SERVICES. SUCH NOTICE  SHALL  INCLUDE,  BUT
NOT BE LIMITED TO:
  (1) THE PERSON'S NAME;
  (2)  NOTICE  THAT  A  REPORT HAS BEEN SENT TO THE DIVISION OF CRIMINAL
JUSTICE SERVICES STATING THAT THE NAMED PERSON HAS BEEN DEEMED LIKELY TO
ENGAGE IN CONDUCT THAT WOULD RESULT IN SERIOUS HARM TO SELF OR OTHERS;
  (3) THE DATE THE REPORT WAS SENT TO THE DIVISION OF  CRIMINAL  JUSTICE
SERVICES;
  (4) THE PERSON'S RIGHT TO SUBMIT A PETITION FOR RELIEF FROM DISABILITY
TO  THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS) APPEALS
OFFICE OF THE OFFICE OF MENTAL HEALTH OR  NICS  APPEALS  OFFICE  OF  THE
OFFICE  FOR  PEOPLE  WITH  DEVELOPMENTAL  DISABILITIES,  AS SET FORTH IN
SUBDIVISION (J) OF SECTION 7.09 OF THIS TITLE  AND  SUBDIVISION  (G)  OF
SECTION  13.09 OF THIS CHAPTER AND SECTIONS FIVE HUNDRED FORTY-THREE AND
SIX HUNDRED FORTY-THREE OF ARTICLE FOURTEEN OF  THE  NEW  YORK  CODE  OF
RULES AND REGULATIONS;
  (5)  CONTACT  INFORMATION FOR THE NICS APPEALS OFFICE OF THE OFFICE OF
MENTAL HYGIENE OR THE NICS APPEALS OFFICE OF THE OFFICE FOR PEOPLE  WITH
DEVELOPMENTAL DISABILITIES; AND
  (6)  ANY  APPLICABLE  DEADLINE FOR SUBMISSION OF A PETITION FOR RELIEF
FROM DISABILITY.
  (D) Nothing in this section shall be construed  to  require  a  mental
health professional to take any action which, in the exercise of reason-
able  professional  judgment,  would endanger such mental health profes-
sional or increase the danger to a potential victim or victims.
  [(d)] (E) The decision of a mental health professional to disclose  or
not  to  disclose  in accordance with this section, when made reasonably
and in good faith, shall not be the basis  for  any  civil  or  criminal
liability of such mental health professional.
  S  2.  Paragraph  2  of  subdivision (j) of section 7.09 of the mental
hygiene law, as amended by chapter 1 of the laws of 2013, is amended  to
read as follows:
  (2)  The  commissioner  shall  establish  within  the office of mental
health 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) or who has been or may be disqualified from continuing to have
a license to carry, possess, repair,  or  dispose  of  a  firearm  under
section  400.00  of  the penal law because such person was involuntarily
committed or civilly confined to a facility under  the  jurisdiction  of
the  commissioner,  OR WHO HAS BEEN THE SUBJECT OF A REPORT SUBMITTED BY
THE DIRECTOR OF COMMUNITY SERVICES OR THE  DIRECTOR'S  DESIGNEE  TO  THE
DIVISION  OF CRIMINAL JUSTICE SERVICES STATING THAT THE NAMED PERSON HAS
BEEN DEEMED LIKELY TO ENGAGE IN CONDUCT THAT  WOULD  RESULT  IN  SERIOUS
HARM  TO SELF OR OTHERS PURSUANT TO SECTION 9.46 OF THIS TITLE, to peti-
tion 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

S. 5696                             3

would  not  be contrary to public safety. The commissioner shall promul-
gate 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 petition-
er undergo a clinical  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 denial of  a  petition  for
relief  from  disabilities  may  be  reviewed  de  novo  pursuant to the
proceedings under article seventy-eight of the civil  practice  law  and
rules.
  S  3.  Paragraph  2  of subdivision (g) of section 13.09 of the mental
hygiene law, as amended by chapter 1 of the laws of 2013, is amended  to
read as follows:
  (2) The commissioner shall establish within the office for people with
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), or who has been or may be disqualified
from continuing to have a license to carry, possess, repair, or  dispose
of  a  firearm under section 400.00 of the penal law because such person
was involuntarily committed or civilly confined to a facility under  the
jurisdiction  of  the  commissioner,  OR  WHO  HAS BEEN THE SUBJECT OF A
REPORT SUBMITTED BY THE DIRECTOR OF COMMUNITY SERVICES OR THE DIRECTOR'S
DESIGNEE TO THE DIVISION OF CRIMINAL JUSTICE SERVICES STATING  THAT  THE
NAMED  PERSON  HAS  BEEN  DEEMED  LIKELY TO ENGAGE IN CONDUCT THAT WOULD
RESULT IN SERIOUS HARM TO SELF OR OTHERS PURSUANT  TO  SECTION  9.46  OF
THIS  CHAPTER,  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  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  clinical 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
denial of a petition for relief from disabilities  may  be  reviewed  de
novo  pursuant  to  the  proceedings  under article seventy-eight of the
civil practice law and rules.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law.