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Sunday, June 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

Agencies Tackling Mental Illness and Gun Sales

WASHINGTON (CN) - As part of President Barack Obama's plan to reduce gun violence, two federal agencies plan to modify regulations to make it more difficult for people with severe mental illness to access firearms.

The Justice Department and Department of Health and Human Services (HHS) each announced this week they plan to revise regulations to improve the background check system for severely mentally ill people who request to own or work with firearms.

In the wake of the deadly Sandy Hook Elementary shooting, President Obama announced last January that he was taking a number of executive actions to combat gun violence.

Among these actions, he said, the government would "address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act (HIPAA) that may prevent states from making information available to the background check system."

HHS plans to change the HIPPA privacy rules to allow health care entities to disclose the identities of people who are ineligible to own firearms to the National Instant Criminal Background Check System (NICS), according to the action.

NICS was created to help enforce prohibitions on selling guns to people the government has found dangerous for various reasons. The planned rule changes would apply to people deemed dangerous for mental health reasons.

The NICS is a national system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on individuals who may be disqualified from receiving firearms based on federally prohibited categories or state law, according to the agency's notice.

According to the notice, among the individuals subject to the so called federal mental health prohibitor are those who have been "involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.

"Under the HHS proposal, only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, would be permitted to disclose the information needed for these purposes."

The information given would be limited to whether or not an individual is subject to a federal mental health prohibitor, and demographic information, according to the action.

Individuals deemed to have a mental health prohibitor may not ship, transport, posses, or receive a firearm, according to the action.

There has been some concern that HIPAA's privacy rule may be a barrier to reporting the identities of people with mental illness, in some states, according to the notice.

"Many states still are not reporting to the NICS essential information on persons prohibited from possessing firearms for reasons related to mental health," the HHS wrote.

"Thus, concerns have been raised that the HIPAA Privacy Rule's restrictions on covered entities' disclosures of protected health information may be preventing certain states from reporting the relevant information to the NICS."

In its proposal, HHS addressed comments it had sought from the public.

Some mental health advocates were concerned that a HIPAA permission to disclose more information "would reinforce and exacerbate the stigma surrounding mental illness."

Others expressed concern that the changes could "harm the patient-provider relationship and discourage some individuals from seeking needed mental health treatment, due to fear that their doctor might disclose otherwise confidential communications about particularly sensitive information."

"We agree that encouraging individuals to obtain appropriate treatment is critical to both individuals' health and the public's safety," the HHS wrote in response to the comments.

"Therefore, we have narrowly drawn this proposed permission such that it would not apply to the vast majority of treating health care providers, who do not perform the formal involuntary commitments or other adjudications that make an individual subject to the federal mental health prohibitor, and do not serve as repositories of information about such commitments and adjudications."

Comments on the proposed regulation are due by March 10.

In a related action, the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives announced it plans to clarify the categories of people prohibited from buying firearms under the 1968 Gun Control Act.

The agency proposed changing the definition of "adjudicated as a mental defective" to clarify its meaning as someone "found not guilty by reason of mental disease or defect."

The agency also plans on clarifying that the designation "committed to a mental institution" under the law applies to people who received any kind of involuntary inpatient or outpatient mental health treatment.

The agency seeks public comments about how these rules apply to people who were involuntarily committed while minors, among other issues.

Comments on the proposed regulation are due by April 7.

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