President Barack Obama insists that unilateral executive action is the way to handle gun violence. At the centerpiece of his plan is an effort to rewrite health privacy rules and adjust how the FBI’s National Instant Criminal Background Check System (NICS) handles new inputs about individuals prohibited by federal law from owning a firearm. Of particular interest are would-be gun buyers with mental health problems that make them bad prospects for firearm ownership.
According to the official White House line, the steps to broaden how mental health records are entered into the NICS database are simply overdue common sense provisions designed to sweep aside pesky and outdated restrictions and regulations. “The Department of Health and Human Services is finalizing a rule to remove unnecessary legal barriers preventing States from reporting relevant information about people prohibited from possessing a gun for specific mental health reasons,” reads the optimistic entry on WhiteHouse.gov.
Responsible gun owners agree: mentally ill individuals should not possess a firearm. But just how the Obama Administration is proposing making its vision a reality involves details, and, as usual, the devil is in the policy details.
TheBlaze linked to a copy of the final edition of the DHS rule that establishes guidelines for how mental health information will be shared with the FBI for the expansion of the NICS. When gun buyers seek to purchase a firearm from a dealer, their name is run as a query in the NICS to determine if their eligibility. If the name is flag, no sale goes through.
According to the rule, mental health issues that would result in a prohibition on gun ownership will now be reported to the FBI – who manages the database – without the verifying information that accompanies other types of prohibitions entered into the NCIS. DHS’s rule claims:
“The minimum information required in a NICS Index record consists of: the name of the ineligible individual; the date of birth; sex; and codes indicating the applicable prohibitor, the submitting entity, and the agency record supporting the prohibition (e.g., an order for involuntary commitment). For individuals subject to the Federal mental health prohibitor, only the fact that the individual is subject to that prohibitor is submitted to the NICS; underlying diagnoses, treatment records, and other identifiable health information are not provided to or maintained by the NICS.” [Emphasis added]
Here’s what that means: If you commit a crime, an “agency record” – a verification – is submitted with all the other details to make sure the NICS has a verifiable reason to put you on that list. However, if, on the other hand, you suffer from a mental issue, no such verification is required to put you on the list.
Technically – and the rule spells this out – only individuals who have been involuntarily committed to a mental institution, incompetent to stand trial, not guilty by reason of insanity, or determined by a “court, board, commission, or other lawful authority” to pose a threat to themselves or those around them because of mental illness, are going to be entered into the NICS.
Despite the need for a paper trail of verification for any of these mental illness determinations, not one scrap of evidence to validate the claims of a submitting agency will be sent to the FBI. The FBI will essentially take on faith the claims of the submitting entity.
Perhaps this is because the Obama Administration is worried about the privacy rights of mentally ill Americans?
The regulation goes on to explain that while HIPAA (the Health Insurance Portability and Accountability Act) requires health care providers to obtain patient consent before releasing “protected health information” (PHI – see page 7 of the rule), that requirement is being suspended when it comes to mental health information destined for the NICS.
No longer will a physician or anyone involved in mental health issues have to obtain a patient’s consent before alerting the federal government to the patient’s condition. “[T]he Privacy Rule allows, subject to certain conditions and limitations, uses and disclosures of PHI without individuals’ authorization for certain law enforcement purposes, to avert a serious threat to health or safety, and where required by State or other law, among other purposes,” the rule explains.
No due process. No patient consent. Simply a determination that private, personal information needs to be obtained by the government to “avert a serious threat to health or safety.”
The rule is quick to explain that individual physicians aren’t the target audience for this provision. Local law enforcement agencies, state and federal welfare agencies that handle private information about mental health issues (such as the Social Security Administration) and other government bodies are the intended primary supplier of this personal health information. However, the rule does leave open that some physicians may be involved in spying on their patients for the government.
“[T]he proposal would not create a permission for most treating providers to disclose PHI about their own patients for these purposes,” the document explains on page 15. While the intent of the rule is to give permission only to certain entities, primarily adjudicators involved in what – one hopes – would be due process proceedings regarding the mental competence of an individual – the bureaucrats at DHS did not want to be absolute in prohibiting all mental health care providers from being involved in this process.
The due process argument is not one the Obama Administration can afford to ignore. Although Democrats have rushed to suggest that the federal No-Fly List designed to keep terrorists from flying on commercial flights be used to deny access to guns, the ease with which a person can be put on the list without notification and without any due process proceedings led to that idea’s rapid demise (so far). Even Time saw the folly of that idea.
Whether or not Congress acts to reign in the loopholes in this DHS rule remains to be seen. There certainly is a lot of talking going on, and perhaps the best Congressional Republican response to President Obama’s tearful gun control speech came from Rep. Justin Amash (R-MI), who tweeted: “So, the guy who sells guns from our government to radical Syrian rebels lectures law-abiding Americans about selling guns to each other.”
DHS rule and explanation: