New Proposed HHS and DOJ Regulations on Mental Illness Prohibition

[Bartholomew Roberts]

HHS:https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00055.pdf
DOJ: https://s3.amazonaws.com/public-inspection.federalregister.gov/2014-00039.pdf

Short Summary from first pass:
It appears the major change is that anyone found not guilty by reason of mental incompetence in any kind of court will now be added to NICS with no HIPAA provisions applying. One area of concern is the VA in the past has added vets to NICS who were unable to manage their own financial affairs. This would appear to remove any HIPAA protections they might have and streamline their being added to NICS.

ATF also asks for comments on adding the under-18 crowd with mental commitments to the prohibited persons list.

 

[Frank Ettin]

Thank you Bart for making the source material available.

These are two Notices of Proposed Rule Making (NPRM) relating to reporting of certain mental health information for NICS use and the definition of the sorts of mental health incidents which can disqualify one from possession of a gun under the GCA68. These NPRM are the first step in the adoption of regulations by DOJ and DHHS and involve proposed amendments to existing regulations under the GCA68 and HIPAA.

Let's discuss those NPRMs and the proposed regulations -- what they say, what they mean, how they might apply, what might be acceptable about them and what might be wrong with them.

Let's NOT discuss general politics, liberal vs. conservative, why we like or don't like the current administration, why the system is or is not corrupt, or otherwise bellow about the tyranny of it all.

Part of formal rule making is the inviting of public comment on the proposed regulations. Each of you may comment directly to the proposing agency on the proposed rules, and each NPRM tells you exactly how to go about it.

If any one of you finds something in one of the proposed rules to be objectionable, I urge you to comment. You will need to comply with the formal process described in the NPRMs. And a focused, disciplined discussion here might help you frame your comments.

The actual proposed text of the ATF regulation which, if adopted as proposed, will find its way into 27 CFR 478.11 is found beginning on page 16 of the DOJ NPRM:

§ 478.11 Meaning of terms.

* * * * *

Adjudicated as a mental defective.

(a) A determination, order, or similar finding by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to self or others; or

(2) Lacks the mental capacity to contract or manage his or her own affairs.​

(b) The term shall include—

(1) Those persons found not guilty by reason of insanity, mental disease or defect, or lack of mental responsibility by a court in a criminal case;

(2) Those persons found guilty but mentally ill by a court in a criminal case in a jurisdiction that provides for such a finding; and

(3) Those persons found incompetent to stand trial by a court in a criminal case.
​

(c) The term shall not include —

(1) Any person adjudicated by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply; or

(2) Any person who has been adjudicated and subsequently received relief from disabilities under 18 U.S.C. 925(c) or under a program authorized by section 101(c)(2) or section 105(a) of the NICS Improvement Amendments Act of 2007.​

* * * * *

Committed to a mental institution.

(a) A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes an involuntary commitment to a mental institution for inpatient or outpatient treatment. The term includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution. It also includes a commitment to a mental institution for other reasons, such as for drug use.

(b) The term does not include a person in a mental institution solely for observation or evaluation, a voluntary admission to a mental institution, or voluntary outpatient treatment.​

The term shall not include any person so committed by a department or agency of the Federal Government, if any of the conditions of section 101(c)(1) of the NICS Improvement Amendments Act of 2007 apply, or any person who has received relief from disabilities under a program authorized by section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 925(c).

* * * * *

The proposed revised HIPAA rule (45 CFR 164.512) is set out beginning on page 48 of the DHHS NPRM:

§ 164.512 Uses and disclosures for which an authorization or opportunity to agree or object is not required.

* * * * *

(k) * * *

(7) National Instant Criminal Background Check System. A covered entity may use or disclose protected health information for purposes of reporting to the National Instant Criminal Background Check System the identity of an individual who is prohibited from possessing a firearm under 18 U.S.C. 922(g)(4), provided the covered entity:

(i) Is a State agency or other entity that is, or contains an entity that is:

(A) An entity designated by the State to report, or which collects information for purposes of reporting, on behalf of the State, to the National Instant Criminal Background Check System; or

(B) A court, board, commission, or other lawful authority that makes the commitment or adjudication that causes an individual to become subject to 18 U.S.C. 922(g)(4).​

(ii) Discloses the information to:

(A) The National Instant Criminal Background Check System; or

(B) An entity designated by the State to report, or which collects information for purposes of reporting, on behalf of the State, to the National Instant Criminal Background Check System; and​

(iii)

(A) Discloses only the limited demographic and certain other information needed for purposes of reporting to the National Instant Criminal Background Check System; and

(B) Does not disclose diagnostic or clinical information for such purposes.​

* * * * *

 

[natman]

Short Summary from first pass:
It appears the major change is that anyone found not guilty by reason of mental incompetence in any kind of court will now be added to NICS with no HIPAA provisions applying.

It's worth noting that being found not guilty by reason of mental incompetence is already grounds for NICS refusal:

From ATF form 4473:

Question 11.f. Adjudicated Mentally Defective:
A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) is a danger to himself or to others; or (2) lacks the mental capacity to contract or manage his own affairs. This term shall include: (1) a finding of insanity by a court in a criminal case; and (2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility.

The underlying issue seems to be if someone pleads / is found mentally incompetent in court and therefore specifically meets the criteria for NICS denial, should the information be withheld from NICS because of HIPAA?

I'm having a hard time seeing why. Visiting a psychiatrist is one thing, being adjudicated mentally incompetent in court is quite another.

 

[Chaz88]

A question that comes to mind is if this would be applied retroactively or from the adoption date forward. Example: somebody was admitted years ago for mental problems or drug use. They were discharged and never had a problem again. Are they now going to be added as a prohibited person?

Also, after the adoption, is there relief for people that get better and are no longer a danger?

It would bother me a lot to think they would make people, undeservedly, permanently prohibited.

 

[teeroux]

It would bother me a lot to think they would make people, undeservedly, permanently prohibited.

Well that has always been the ultimate goal. Now they can only settle for nibbles in the form of executive actions.

 

[carguychris]

A question that comes to mind is if this would be applied retroactively or from the adoption date forward. Example: somebody was admitted years ago for mental problems or drug use. They were discharged and never had a problem again. Are they now going to be added as a prohibited person?

+1. This is my #1 concern with the proposed rules, particularly when one examines the following provision:

§ 478.11 Meaning of terms.

Committed to a mental institution.

(a) A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes an involuntary commitment to a mental institution for inpatient or outpatient treatment. The term includes an involuntary commitment for mental defectiveness, i.e., mental illness, to a mental institution. It also includes a commitment to a mental institution for other reasons, such as for drug use.

(emphasis mine)

Two main concerns:

• The provision specifically calls out drug treatment. Let's say that someone was ordered to attend an outpatient drug treatment program in return for the judge deferring/sealing/expunging the charges in a minor possession bust, as allowed by state law. The person completes the treatment program and does not touch any controlled substances for the subsequent 20 years. It this person now prohibited from possessing firearms because she received treatment? Really?!?
• The phrase "such as" implies that other reasons may exist, but those reasons are vague and nebulous. Let's say that a married couple has a contentious divorce; there is no proof of physical violence or child abuse, so no charges are filed, but the couple admits to frequent late-night screaming matches, and the judge orders them to attend an outpatient anger management program. Are these folks now prohibited persons? What about someone who is ordered to attend alcohol rehab in return for a suspended or reduced sentence in a misdemeanor DWI, PI, or MIP case?

This provision could potentially ensnare a HUGE number of people, many of whom likely agreed to (or at least didn't actively fight) a court order because of its perceived benefits, e.g. avoiding jail time, or maintaining custody of a child.

Furthermore, this provision may have a serious unintended consequence- it potentially punishes minor offenders for accepting a court-ordered treatment program to avoid fines or jail time in misdemeanor cases! Do we really need MORE minor drug, alcohol, or prostitution offenders in the prison system?