Too True. But, violating the constitution apprently doesn't trigger Federal penalties like HIPAA does. Too bad, eh? Still, it will be interesting to see where the violation might actually occur. Technically reporting to OMH or DOH might skate by as operations (though I think that's far fetched; there is no intent to treat in this). Its when they turn it over to the police that the violation actually occurs. It'll be just our luck that the OMH violation, if they were ever cited, would be paid out of our taxpayer pockets. If you are a Federal Register nut, the HIPAA pre-emption regulatory language is at 45CFR160.201-203 Here is a good summary of the penalties: HIPAA Violations and Enforcementwell...they forgot about the constitution, so HIPAA is "Small potatos" comparatively .... : )
No your hat isn't too tight. It was a brilliant screw job to us. It is offered under the guise of protecting the public but the real intent is to have another reason to seize people's guns. They will seize all the guns of everyone reported (my guess) and then they plan to use that data to argue later that "you see, there are just too many mentally disturbed people out there with guns - look at all the guns we seized from seriously disturbed and dangerous people! We need to remove all of these guns from the public because they are just too dangerous to be out there."Must be that I'm wearing mine too tight also becaus i'm getting the exact same signals. And they also match the signals I get when i hear/read about the insurance mandate, and the ammo/firearm sin tax.
If there must be trouble, let it be in my day, that my child may know peace.~ Thomas Paine
The HIPAA Privacy Rule permits a covered entity to disclose PHI, including psychotherapy notes, when the covered entity has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person(s) reasonably able to prevent or lessen the threat. This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat, or others who the covered entity has a good faith belief can mitigate the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. See 45CFR § 164.512(j)(1)(i). For example, consistent with other law and ethical standards, a mental health provider whose teenage patient has made a credible threat to inflict serious and imminent bodily harm on one or more fellow students may alert law enforcement, a parent or other family member, school administrators or campus police, or others the provider believes may be able to prevent or lessen the chance of harm. In such cases, the covered entity is presumed to have acted in good faith where its belief is based upon the covered entity's actual knowledge (i.e., based on the covered entity's own interaction with the patient) or in reliance on a credible representation by a person with apparent knowledge or authority (i.e., based on a credible report from a family member or other person). See 45 CFR § 164.512(j)(4).This is the problem: HIPAA permits disclosure for Treatment, Payment, Operations and "Health Oversight" (i.e., to DOH). The new element here is disclosure to law enforcement folks. That's beyond the inclusion bubble permitted by HIPAA (absent DHHS exemption).
Hi LZ1, glad to run into another soul afflicted with HIPAA here on the forums ;-). It's been a while since I've rummaged through this seciton of the regulations so thanks for the prompting. Anyone wishing to follow (you will regret it) can find the section we're discussing here: eCFR Code of Federal Regulations 164.512(j) isn't applicable because 45CFR164.512(a)(2) reads: (2) A covered entity must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or disclosures required by law. Your section (j) is not in this list and so isn't a disclosure that fits the "required by law" bit of NYSAFE. I've done a quick read through this (forgot how fun cross-referencing is in this process) and it looks like the only possibility is (f)(1)(i) "As required by law including laws that require the reporting of certain types of wounds or other physical injuries, except for laws subject to paragraph (b)(1)(ii) or (c)(1)(i) of this section." I'll have to stew on that a bit (and also review any exemptions for mental health information disclosures elsewhere). One thought off the bat is that the regs read "may disclose" whereas NYSAFE is "must disclose". I think the distance between "may" and "must" is large enough to require a DHHS exemption. But HIPAA hair combing aside, I think there are two larger items and points of action for providers and patients to consider: Entities regulated through HIPAA must exhibit due diligence and a good faith effort in consultation with counsel to determine what the regulations mean and develop policies/procedures to implement them. The state of NY may disagree with those interpretations, but it is not the final arbiter in them, it is just another participant in the dispute. If clarification is needed then the parties have to turn to Office of Civil Rights, Department of Health and Human Services, or Department of Justice depending on the flavor of the disagreement. The state's only real recourse to counter a determination that this is against HIPAA would be to avail themselves of those avenues of clarification. I suppose they could also, in a draconian response that I don't think we should anticipate, revoke provider licenses under their interpretation of NYS Ed Section 6530 "Professional Misconduct". God help the profession if the state ever entered a "knew or reasonably should have known" witch hunt against mental health providers who failed to report someone under NYSAFE when that professional acted reasonably and in good faith. I honestly believe a determination that this violates HIPAA is potentially reasonable (have to finish researching above section). There are also actions that ordinary folks can take. A patient has a right to request a restriction on the use or disclosure of their PHI. Patients can ask up front that their PHI not be used for NYSAFE reporting. The health care provider is not required to honor this request, but if they will not, then you know reporting may occur with that provider. If they do agree to honor the request, then they are prohibited from making the disclosure. If a patient feels their rights may be violated under HIPAA, e.g., the health care provider is indicating they will release PHI in a manner not permitted by HIPAA, the patients can request a copy of the provider's HIPAA "Notice of Privacy Practices" and complain about this to the privacy official listed in the document (usually someone who is part of the health care provider's business). They can also complain directly to the Secretary at DHHS (How To File a Complaint). A patient also has a right to request an accounting of disclosures. I don't believe (also need to verify) disclosing information per 164.512(f) is exempt from such an accounting and the provider would have to indicate that the disclosure to the recipients listed in NYSAFE was, in fact, made. A complaint could then be filed per above with this a documentation of the disclosure. I readily admit that, in the end, it is conceivable that DHHS and the state will work all this out and clear guidance will be issued indicating that NYSAFE is compliant with HIPAA. At that point in time any policies or practices to the contrary would have to be altered. If we reach that place, and NYSAFE hadn't been appropriately repealed or modified, patients would ultimately be left in the hands of determinations made by mental health professionals. My only comfort if we do land in that place comes from mental health professionals I've spoken to. They are by and large fully against NYSAFE for the variety of reasons I've listed previously and may simply elect not to report on that basis alone.See 45CFR § 164.512(j)(1)(i).
Its not that I think anyone here wants the crazies to have firearms but I can see this being abused. For example I had a doctor ask me if I was depressed and I was there because I had the flu lol. I told her no i wasnt depressed I was sick lol.
What folks should be in favor of is effectively treating these folks so they are moved from a place where they have such thoughts. By in large people with mental illnesses are much more likely to be the *victims* of violent crime than the perpetrators. What we would like to avoid is a) making treatment impossible by poisioning the provider-patient trust relationship and b) precipitating the events NYSAFE is puportedly trying to prevent by stressing someone past the breaking point when the police show up unannounced to confiscate weapons. It would also be nice if there were some due process provisions to defend against inappropriate confiscation, or to reacquire weapons after successful treatment, but that's a separate issue entirely. Quite frankly, only the lay public not familiar with mental health issues frames this as a 'keep the crazies away from guns' argument.
That is admittedly a potentially slippery slope (extending to all health care providers) but the state hasn't gone there (yet). However, the last thing I would want is to put law enforcement in more danger. Unfortunately, this is a possible outcome of NYSAFE in that the law may result in pushing someone over the "edge" exactly due to the stress introduced in a confisication scenario. A law that increases the likelihood of the problem it is trying to alleviate, when doing little to otherwise actually alleviate the problem is just nuts - but then I think we're all on the same page when it comes to that assessment.I think the real issue here is extending this to every healthcare worker... Mental health professionals understand the risk of violence to yourself or others you could easily get a doctor who hates guns going "Oh he seems depressed let me report him" I'm hopeful this backfires on cops.
You ARE an absolute idiot. The question becomes "IF they have the right to violate one inalienable Constitutional Right, WHEN will they take the next Constitutional right?". Now, if the "accused (by his doctor) had the right to appear BEFORE ANY ACTION TAKES PLACE with his attorney and answer the doctor's accusation, then possibly there might be something to consider. HOWEVER, if the Doctor is determined UNFOUNDED in his accusation, then the Doctor needs to pay a severe price for his meddling in a person's constitutional rights.
And you must have just arose from hibernation. Do you live li "Sleepy Hollow?You ARE an absolute idiot. The question becomes "IF they have the right to violate one inalienable Constitutional Right, WHEN will they take the next Constitutional right?". Now, if the "accused (by his doctor) had the right to appear BEFORE ANY ACTION TAKES PLACE with his attorney and answer the doctor's accusation, then possibly there might be something to consider. HOWEVER, if the Doctor is determined UNFOUNDED in his accusation, then the Doctor needs to pay a severe price for his meddling in a person's constitutional rights.
Remember that a police officer who under color of authority violates a person's constitutional rights is REQUIRED by federal statute to be prosecuted and to stand trial in FEDERAL COURT and if he loses MUST be sentenced to a MINIMUM of 5 years in a federal penitentiary. YES, you read correctly, and the FBI is supposed to be the investigating body. Almost no investigation of this has ever happened, even with Floyd. So what is the problem?
The problem is that the GOVERNMENT WANTS to take away EVERY PERSON's civl rights.