The White House quietly announced two new executive actions earlier this month. These actions appear to be ones designed to expand the number of Federally prohibited persons by simply adding them into the NICS system without any further judicial review and/or guarantee of due process.
The first measure (and it should be noted that this is a summary released by the White House and not the actual text) will apparently allow a looser definition of what constitutes being “adjudicated mentally defective or committed to a mental institution.” This is troubling as requirements for being committed vary from state to state, and some may not (including Pennsylvania) properly meet the Due Process requirement (and thus should not be submitted to NICS) needed for someone to become a prohibited person. Once an individual is entered into the NICS system, it is extremely difficult to get an incorrect determination removed:
Some states have noted that the terminology used by federal law to prohibit people from purchasing a firearm for certain mental health reasons is ambiguous. Today, DOJ is issuing a proposed rule to make several clarifications. For example, DOJ is proposing to clarify that the statutory term “committed to a mental institution” includes involuntary inpatient as well as outpatient commitments. In addition to providing general guidance on federal law, these clarifications will help states determine what information should be made accessible to the federal background check system, which will, in turn, strengthen the system’s reliability and effectiveness.
The second measure aims to weaken HIPAA (Health Insurance Portability and Accountability Act) protections, by removing restrictions on patient privacy and allowing “entities” (which is not defined at this time) the ability to freely report patients without fear of sanction. The Obama Administration claims that this will not in any way weaken privacy rights of patients, which rings hollow considering that the White House needs to issue an Executive Action to remove HIPPA protections:
Some states have also said that the Health Insurance Portability and Accountability Act’s (HIPAA) privacy provisions may be preventing them from making relevant information available to the background check system regarding individuals prohibited from purchasing a firearm for mental health reasons. In April 2013, HHS began to identify the scope and extent of the problem, and based on public comments is now issuing a proposed rule to eliminate this barrier by giving certain HIPAA covered entities an express permission to submit to the background check system the limited information necessary to help keep guns out of potentially dangerous hands. The proposed rule will not change the fact that seeking help for mental health problems or getting treatment does not make someone legally prohibited from having a firearm. Furthermore, nothing in the proposed rule would require reporting on general mental health visits or other routine mental health care, or would exempt providers solely performing these treatment services from existing privacy rules.
We will continue to follow and bring updates on these attempts to shortcut due process and accountability as more information becomes available.