Last Friday, the Obama administration proposed two major new regulations aimed at strengthening the federal background check system and keeping guns out of the hands of people with serious mental illnesses.
“The Department of Justice (DOJ) is proposing a regulation to clarify who is prohibited from possessing a firearm under federal law for reasons related to mental health, and the Department of Health and Human Services (HHS) is issuing a proposed regulation to address barriers preventing states from submitting limited information on those persons to the federal background check system,” wrote administration officials in a press release.
Gun safety advocates are welcoming the proposed rules as a major step forward in gun violence prevention — one that could potentially save lives, especially by curbing suicide rates.
“They’re relatively significant [regulations],” Arkadi Gerney, a Senior Fellow at the Center for American Progress (CAP) who specializes in gun policy, said in an interview with ThinkProgress.
“The two biggest elements of them are that it clarifies that the Health Insurance Portability and Accountability Act (HIPAA) doesn’t preclude states from submitting records to the FBI federal background check system for gun purchases,” he explained. “That is the conclusion that most states had come to in terms of submitting them, but [HIPAA] had held back some states from submitting records, and that clarification takes away what had kind of been used as an excuse for inaction in some states.”
Those new rules may end up having a big effect, if existing state laws are any indication. Duke University researchers studied violent crime rates among people with serious mental illnesses in Connecticut before and after the state implemented a similar background check law. They found that background checks had a “positive effect” for those with mental illnesses. Violence rates among this group declined by a stunning 69 percent a after the state began reporting gun-disqualifying mental health records to the federal background check database. That included a large decrease in the number of suicides — the primary reason that people with mental illnesses end up dead from a gun.
The new HIPAA reporting regulations are actually a follow-up to the 23 executive actions that President Obama announced in the wake of the Sandy Hook massacre last year, according to Gerney. But the second proposal, the regulation issued by the DOJ, is one that gun law reformers have long been fighting for.
Under current law, Americans are prohibited from possessing a gun if they’ve either been adjudicated mentally ill by a court or involuntarily committed to a mental institution. But what about the people who are involuntarily committed to outpatient treatment? That may involve mandatory, ongoing psychiatric evaluations or drug therapy — but without physical, inpatient commitment to a mental health facility.
“That’s something that’s become increasingly common,” said Gerney. “So what [the new regulation] does is it clarifies that being committed to a mental institution includes both involuntary inpatient and outpatient treatment. And that’s significant because there have been some pretty serious cases where people who had been involuntarily committed to outpatient treatment went on to bad things involving a gun.” The rules also specify that people who plead innocence by reason of insanity are subject to firearm restrictions.
The policy in this area can walk a fine line. Mental health advocates have previously voiced concerns about overly-broad regulations that could end up further stigmatizing Americans who pursue mental health care, or undermining doctor-patient relationships. For instance, New York’s SAFE Act drew the ire of psychiatrists for provisions requiring doctors to report patients who talk about thoughts of violence or suicide to state authorities. One went so far as to say the law “undercuts the clinical approach to treating these impulses.”
Fortunately, the new regulations likely won’t have that sort of stigmatizing effect. Only courts or community health boards that already have the power to officially adjudicate someone as having a serious mental illness will be able to report to the authorities under the new regulations.
“In the HHS part of the regulation, the administration actually specifically addresses that issue,” Chelsea Parsons, CAP’s Associate Director for Crime and Firearms Policy, explained to ThinkProgress. “The language specifically says that [the administration] very carefully tailored the regulation to ensure that it didn’t have that effect of deterring people from receiving mental health treatment or from interfering in the relationship between a physician and a patient. And it specifically talks about how there’s nothing in the regulation that puts any onus on a provider of mental health services to do any sort of reporting.”