After failing to strengthen background checks on gun buyers through Congress, the Obama administration on Friday announced pending executive action on the matter focused mainly on mental health issues that would allow the government to get around certain privacy laws on the books in order to obtain more information.
The new restrictions would take the form of regulations from the Department of Justice and the Department of Health and Human Services. One of the regulations would seek to gain information previously withheld because of the Health Insurance Portability and Accountability Act, or HIPPA, which protects medical privacy.
“Too many Americans have been severely injured or lost their lives as a result of gun violence,” a White House release said Friday. “While the vast majority of Americans who experience a mental illness are not violent, in some cases when persons with a mental illness do not receive the treatment they need, the result can be tragedies such as homicide or suicide.”
The administration's Friday post-holiday announcement came while President Barack Obama was still on vacation in Hawaii, in stark contrast to Obama's first executive actions on guns, which were announced in a White House ceremony. "Friday news dump" announcements have also traditionally been used to try to avoid media scrutiny.
Federal regulations do not require congressional authorization, but must go through a period of public comment and review before being enacted.
The Justice Department regulation would clarify who is prohibited from possessing a firearm under federal law for reasons of mental health. The White House says that terminology in federal law is ambiguous.
Examples given by the Justice Department are the statutory terms “committed to a mental institution” and “adjudicated as a mental defective” to include involuntary inpatient and outpatient commitments, anyone found incompetent to stand trial or not guilty by reason of mental disease or defect, someone lacking mental responsibility or deemed insane, and persons found guilty but mentally ill.
“We are taking an important, commonsense step to clarify the federal firearms regulations, which will strengthen our ability to keep dangerous weapons out of the wrong hands,” Attorney General Eric Holder said in a statement. “This step will provide clear guidance on who is prohibited from possessing firearms under federal law for reasons related to mental health, enabling America’s brave law enforcement and public safety officials to better protect the American people and ensure the safety of our homes and communities.”
The Department of Health and Human Services wants to ensure states are submitting more information on individuals through the National Instant Criminal Background Check System, or NICS. Thus far, the health privacy laws have gotten in the way, so the HHS wants 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 Government Accountability Office found in 2012 that 17 states had submitted fewer than 10 records of individuals to the federal background check system who were prohibited from buying guns for mental health reasons.
“There is a strong public safety need for this information to be accessible to the NICS, and some states are currently under-reporting or not reporting certain information to the NICS at all,” Health and Human Services Secretary Kathleen Sebelius said in a statement. “This proposed rulemaking is carefully balanced to protect and preserve individuals’ privacy interests, the patient-provider relationship, and the public’s health and safety.”
HHS began looking at the matter last April. The regulation would not prohibit someone seeking help for metal illness from buying a firearm. Further, the White House says, the rule wouldn't require reporting routine mental health visits.
Last year, the Democrat-controlled Senate rejected a proposal backed by Obama to expand background checks. The legislative push came in response to the December 2012 elementary school massacre in Newtown, Conn. A shooting occurred earlier that year at a movie theater in Colorado. In both of cases, and in others, the accused shooters have had mental health problems.