Privacy experts are warning of a strategy embedded inside a federal plan to adjust privacy rules so that the federal government can access Americans’ mental health records as part of Barack Obama’s war on gun ownership.
According to the plan, the government would be told the details right away if anyone is sent to a mental institution for “mental defectiveness, or mental illness.”
But the White House plan also includes a notification to Washington should someone be lodged in a mental facility “for other reasons.”
“The phrase ‘for other reasons’ is overly broad and vague,” said the Electronic Privacy Information Center. “Although the DOJ has illustrated that drug use is an example of ‘commitments for other reasons,’ the nebulous language would grant the DOJ sweeping authority to prohibit individuals from possessing firearms, a constitutionally protected right.”
The organization says the concern over the privacy of such records means nothing and should be changed right away.
“Until the DOJ clearly defines and enumerates the types of formal commitments that can bar gun ownership, HHS should not amend its regulations to release sensitive mental health information to the DOJ,” the organization said in a submission commenting on the Obama plan.
The issue erupted after the school shooting at Sandy Hook six months ago. In response, the Obama administration launched an agenda that includes “closing background check loopholes to keep guns out of dangerous hands,” a ban on “military-style” weapons and some ammunition magazines, as well as “making schools safer” and improving mental health services.
But the vague generalities used to describe the plans have privacy experts and Second Amendment supporters worried.
The Department of Justice now wants to be notified of any mental health concerns and commitments “for other reasons” for Americans so their names can be added to the National Instant Criminal Background Check System list of people banned from owning guns.
But it appears the requirements of the privacy rule for medical records will be a barrier to that quick transfer of personal details, so the Department of Health and Human Services has proposed a change.
“Concerns have been raised that, in certain states, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule may be a barrier to states’ reporting the identities of individuals subject to the mental health prohibitor in the NICS,” according to a strategy outlined in the Federal Register.
So, HHS said, it is planning to create “an express permission in the HIPAA rules for reporting the relevant information to the NICS by those HIPAA covered entities responsible for involuntary commitments or the formal adjudications that would subject individuals to the mental health prohibitor, or that are otherwise designated by the states to report to the NICS.”
The rule change plan notes that Obama on Jan. 16 announced 23 executive actions aimed by curbing gun violence, and he specifically targeted the privacy requirements of HIPAA.
But the federal government admits that already those who have been involuntarily committed to a mental institution, have been found incompetent to stand trial or not guilty by reason of insanity, or otherwise have been determined through an adjudication process to have a severe mental condition, are banned from owning guns.
Those records, also, come from the judiciary, not the health system.
Now the federal government wants access to all such records from health care providers, too.
The Electronic Privacy Information Center said the best way to handle the federal government’s plans would be to leave in place the protections provided for consumers under the Health Insurance Portability and Accountability Act’s Privacy Rule, which doesn’t allow such discussions of diagnoses or treatment.
EPIC said if changes are made, there need to be some clear protections.
“HHS should assign liability to states that disclose excess mental health data for NICS purposes,” the comments said. “HHS should mandate states notify NICS as soon as possible but no [later] than 10 business days of an incorrect or outdated mental illness record.”
Said EPIC: “There are not enough adequate privacy protections in place, under state law or otherwise, for data collected by state entities for reporting to the NICS. … Many states do not have privacy laws that explicitly address privacy protection of mental health records and availability to the NICS.”
It reported some states simply absolve themselves from “any liability for defamation, invasion of privacy, negligence, or any other claim in connection with the dissemination pursuant to [the NICS].”
WND recently reported on another anti-gun strategy, which is a possible explanation why the Obama administration has failed to launch legal action against Colorado and Washington, where voters last fall voted to “legalize” marijuana under their state laws, even though federal law doesn’t allow it.
The White House, however, has insisted state laws exempting people from the federal Obamacare law are invalid. And when Arizona took it upon itself to adopt a state law to enforce federal immigration restrictions, the Obama administration sued.
Some have asked if there something about the idea of legalizing marijuana that Washington likes.
The idea may have been borne out recently when the Congressional Research Service released its report on the “State Legalization of Recreational Marijuana: Selected Legal Issues.”
As attorneys Todd Garvey and Brian Yeh wrote in the report, Washington has flexibility regarding drug prosecution, stating: “The extent to which federal authorities will actually seek to prosecute individuals who are engaged in marijuana-related activities in Colorado and Washington remains uncertain. President Obama himself has suggested the prosecuting simple possession is not a priority, while the Department of Justice has said only that ‘growing, selling or possession any amount of marijuana remains illegal under federal law.'”
What is more certain, they wrote, is that federal firearms regulators will be aggressive about banning anyone who uses marijuana from buying – or possessing – a weapon.
“With the legalization of marijuana for recreational purposes in Colorado and Washington, it seems likely the ATF will … consider a recreational user of marijuana to be a prohibited possessor of firearms regardless of whether the use is lawful under state provisions,” they wrote.
The attorneys said the ATF specifically has stated “any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.”
They further wrote, “These individuals are to answer ‘yes’ when asked on the firearms transfer form if they are unlawful users of a controlled substance.”
Dave Workman, senior editor at TheGunMag.com, a spokesman with the Second Amendment Foundation and a former member of the NRA board of directors wrote about the possible solution last fall as the votes in Washington and Colorado were approaching.
“A source with the Bureau of Alcohol, Tobacco, Firearms and Explosives in Washington, D.C., … confirmed what had been explained in a Sept. 21, 2011, letter from Arthur Herbert, assistant director for enforcement programs and services to firearms retailers.
“Washington state gun owners need to know they cannot get stoned and head for the gun range or hunting camp,” he wrote.
Also, the government has been using its interaction with veterans to designate many of them – by the tens of thousands – incapable of handling their own financial affairs and therefore banned from having guns.
A lawsuit was just filed by the United States Justice Foundation against the Veterans Administration for snatching veterans’ gun rights without “due process” or any “factual or legal basis.”
WND has published reports about how returning veterans were being deprived of their Second Amendment rights without a court-based adjudication competency process, based on arbitrary VA agency decisions.
The problem arises when the agency wants to appoint a fiduciary – someone to advise a disabled veteran or one receiving certain government benefits – to help with the management of the benefits.
The government then routinely notifies the FBI’s NICS system, a federally maintained list of those whose competency has been challenged. That means they no longer can purchase a gun or even keep the one they may have.
Michael Connelly, executive director of the USJF, told WND the initial lawsuit is to compel the VA to respond to two requests under the Freedom of Information Act.
“The information requested included Veterans Benefits Administration rules, regulations and criteria for making ‘determinations of incompetency due to a physical or mental condition of a benefit recipient,'” the legal team explained.
“The USJF has received numerous complaints from military veterans around the country who are being declared incompetent to handle their own financial affairs and then told that they can no longer purchase or own firearms or ammunition,” said Connelly. “This determination is being made without due process protections for the veterans and the basis for the incompetency ruling is often arbitrary and without a factual or legal basis.”