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VA says no to SAFE Act

U.S. Department of Veterans Affairs declares it won’t comply with New York mandate to report dangerously mentally ill

UPDATED to include a statement from Gov. Andrew Cuomo.

The U.S. Department of Veterans Affairs said it will not comply with New York State’s new law requiring mental health providers to report potentially dangerous individuals to state authorities.

The Secure Ammunition and Firearms Enforcement (SAFE) Act, the sweeping gun-control law that goes into effect this week, calls on doctors and therapists to alert county health officials to patients they deem “likely” to engage in conduct that will result in serious self-injury or harm to others.

Once notified of potentially harmful individuals, the state will check their names against a new state database of licensed gun owners. If there’s a match, local law enforcement will be authorized to remove weapons if their owner does not voluntarily surrender them.

New York Gov. Andrew Cuomo signs the SAFE Act on Jan. 15. in response to the massacre of school children in Newtown, Conn. AP Photo/Mike Groll

Mark Ballesteros, spokesperson for the Department of Veterans Affairs, said that the U.S. Constitution forces his agency to follow federal law, not New York’s new rules.

“Federal laws safeguarding the confidentiality of veterans’ treatment records do not authorize VA mental-health professionals to comply with this NY State law,” he said in an emailed statement.

Veterans determined mentally incompetent to handle their own affairs by the U.S. Department of Veterans Affairs are reported to the federal National Instant Criminal Background Check database. While the background-check database will be used under the New York law to screen firearms sales, the information on veterans’ mental health is not included in the data viewable by states, according to the VA.

The VA provides health care for more than half of returned U.S. veterans from the Iraq and Afghan wars. New York State is home to nearly 1 million veterans, and Suffolk, Nassau and Erie rank among the top counties nationally for share of residents who have served in the armed forces.

Asked about the VA’s statement by a reporter on Monday, Gov. Cuomo suggested that providers have discretion in whether or not to report patients. “You know, I really don’t know the specifics, but first of all what the law says is it leaves it totally up to the mental health provider if they want to come forward or not — totally up to them,” he said.

The state Office of Mental Health, Division of Veterans’ Affairs and Division of State Police did not respond to questions about the VA or the SAFE Act.

Cuomo was a driving force behind the SAFE Act, introduced and passed by the legislature without public debate in the wake of the massacre at a Newtown, Conn., elementary school.

When he signed it in January, Gov. Cuomo said that the law’s mental health reporting requirement was “common sense” that had eluded the state for years.

Some mental health providers and advocates around the state argue that the law could increase the stigma surrounding mental illness, heightening barriers to obtaining needed care and deterring many of those who most need help from seeking it out — paradoxically, leaving the mentally ill and the public less safe.

For veterans and active-duty military members, who already face serious cultural obstacles to receiving care and suffer higher rates of suicide, especially with firearms, than the general population, these concerns are all the more acute.

“There is a chilling effect on people getting care, and we’re particularly concerned about veterans,” said John Richter director of public policy at Mental Health Association in New York State.

“We have a hard enough time getting veterans in for PTSD. Veterans are a prime example of someone who would have a disincentive to go.”

A 2011 report by the RAND Corporation on New York veterans’ needs, commissioned by the New York State Health Foundation, found that more than one in five veterans returned with post traumatic stress disorder or major depression — rates two to four times higher than the general population for major depression and eight times higher for PTSD.

Yet only one-third of surveyed veterans with a mental health need sought care, often driven away by fears about the confidentiality of their treatment and the possibility of losing respect from colleagues and supervisors. RAND concluded that barriers to treatment — and the view that seeking mental health care was undesirable — needed to be moved aside to improve services and enrollment.

Some providers fear these forces keeping vets away from care will now be exacerbated by the SAFE Act.

“A lot of them are not getting treatment because they want to avoid stigma and the labeling,” said Connie Przepasniak, a licensed mental health counselor in Buffalo and member of the board of directors of the Western New York Veterans Housing Coalition and the Veterans One-Stop Center of Western New York. In the past, she worked as a counselor for the U.S. Department of Veterans Affairs.

“In my experience, a lot of veterans that I’ve worked with have some kind of a weapon on them, just in terms of self-protection,” she said. “And I think it’s going to prevent them from seeking mental health treatment.”

Mental health professionals have in the past had an array of options in deadling with patients who share thoughts of suicide or harming others, including involuntary hospitalization and warning potential victims, as well as reporting to law enforcement. But once the law goes into effect, care providers who encounter suicidal or otherwise dangerous patients will have no choice but to report.

Mental Health Association chapters across the state, as well as National Association of Social Workers New York State, the New York State Psychiatric Association and the New York Association of Psychiatric Rehabilitative Services, Inc. have expressed concerns about the bill’s possible effects on New Yorkers with mental illnesses.

Other states have toyed with the idea of mandatory reporting following the Newtown massacre but not pursued it. Last year, Maryland Governor Martin O’Malley convened a task force to explore firearm access for the mentally ill. Among the suggestions was a call to establish a reporting mandate similar to New York’s law. But the O’Malley scuttled the pitch in the gun control package he proposed to the legislature.

“I think the question around the mental health provisions is about where best to draw the line,” said Joshua Sharfstein, Secretary of Maryland’s Department of Health and Mental Hygiene. Sharfstein said he advised the Governor against the provision.

“We are going to be expanding the prohibitions for gun ownership in a targeted way, but what we want to avoid doing is creating a major disincentive for people to seek the care that they need because that can lead them to go without treatment and that’s ultimately more dangerous.”

Jim A., a two-tour veteran of Afghanistan and Iraq, did seek out mental health services when he returned for good. (He asked that his last name not be used to protect his privacy.) At the Albany Stratton VA Medical Center in Albany, doctors diagnosed him with PTSD.

But while he actively sought care, he said he can also see fellow veterans holding back on getting mental health treatment because of the reporting requirement.

“I can’t talk to someone about my level of disconnect for fear of my information being shared when I go to buy a rifle,” he said, putting himself in another veteran’s shoes.

“The sharing of information is a huge concern because hey, if I want to get a new gun, I better not see the doctor. I better figure this out here by myself.”

If you or a loved one know a veteran in distress, please call the Veteran Crisis Line at 800-273-8255 (Press 1) for confidential crisis counseling, available 24/7.