I have a four-hour health law exam in six days, so naturally I’m blogging about some legal quirk I absolutely won’t be tested on.
There aren’t many who would quibble with an argument that those with severe mental illness—specifically, individuals “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 [legally judged] to have a severe mental condition that results in the individuals presenting a danger to themselves or others“—should not be able to purchase firearms. Right? Right.
Making that law isn’t actually the trouble (expanding background checks is, of course, a different story). It’s already law, and has been on the books for awhile. The trouble is enforcing it.
The federal government maintains the National Instant Criminal Background Check System (NICS), a database of people who are federally prohibited from purchasing guns, including felons, people convicted of domestic violence, and individuals who meet the extreme mental illness criteria above. Except:
Federal law does not require State agencies to report to the NICS the identities of individuals who are prohibited by Federal law from purchasing firearms, and not all states report complete information to the NICS.
To recap: We have federal criteria that prohibits certain individuals from buying firearms. The feds maintain a database of known individuals for background checks (which take 30 seconds, per the regulation). But states aren’t required to offer the names of “prohibitors” to the database.
What does it mean when states aren’t compelled to disclose this information? Among other things, 17 states submitted fewer than ten records each for individuals who would be prohibited on mental health grounds. What’s more, just 12 states make up the overwhelming bulk of submitted mental health prohibitors. The GAO was kind enough to give us a graph to that effect—those 12 super compliant states make up the dark blue sections of the graph; the slivers of light blue represent the other 38 states and five U.S. territories. Unfortunately, the report doesn’t actually identify the highest- or lowest-performing states—if any of you readers manage to sleuth it out, let me know. (Update: via a reader, this interactive map from the Seattle Times offers a snapshot of mental health reporting laws by state.
What’s the problem here? In a word, it could be HIPAA.
HIPAA is federal law that’s… well, it’s complicated, and I have notes from class to prove it. But in part, it creates federal protections for “protected health information,” so health providers can’t disclose that information without your consent. There is an exception that should permit disclosure for the purpose of gun safety, though (emphasis added):
The Privacy Rule seeks to balance individuals’ privacy interests with important public policy goals including public health and safety. In doing so, the Privacy Rule allows, subject to certain conditions and limitations, disclosures of protected health information 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.
Still, the privacy rule seems to create a barrier in establishing a lines of communication between NICS and “HIPAA-covered entities” (e.g., physicians, hospitals, mental health centers) who might fear legal repercussions for disclosing that information, considering the somewhat broad language of the exception. The Obama Administration is working on a solution to this problem; last Friday they issued an advance notice of proposed rulemaking, which is a fancy legalese way of saying that they’re looking for public input and recommendations to work out the kinks before writing the regulation. If successful, HHS might create an express permission within HIPAA for reporting relevant information to the federal database. Importantly, (emphasis added):
The information maintained by the NICS typically is limited to the names of ineligible individuals and certain other identifying information, such as their dates of birth, as well as codes for the submitting entity and the prohibited category that applies to the individual. Other than demographic information about the individual, only the fact that the individual is subject to the mental health prohibitor is submitted to the NICS; underlying diagnoses, treatment records, and other identifiable health information is not provided to or maintained by the NICS.
There are concerns that this might discourage care-seeking behavior for those who suffer from from mental health conditions—and this regulation isn’t about your average Xanax user. The proposed regulation has a set of specific questions at the end for public input; how to correct for “unintended adverse consequences for individuals seeking needed mental health services” is among them.
This is a far cry from a silver bullet in gun control reform, but it’s a development worth watching. It’s one way to strengthen background checks—which enjoy insanely popular support from the public—within the context of current law and without facing the intransigence of Congress. It also spotlights the intersection of mental health and gun violence, which deserves far more conversation than it currently receives.
Adrianna works in clinical research and is a graduate student in public policy & public health at the University of Michigan. Follow her on Twitter @onceuponA.