Today, the President announced his “executive actions on guns.” If you’re a Democrat, you probably applauded him for his stand, his willingness to show emotion during his speech, and to continue the dialogue on gun violence. If you’re a Republican, you probably denounced him for this move, accused him of yet another example of unconstitutional executive overreach, and – depending on how rational you are – you may have responded with something like this:
As for those who care about fairness and good public policy making, the majority of us were underwhelmed. The President’s multiple moves (and here’s the list  from the White House), ranged from requesting more funds from Congress for more Bureau of Alcohol, Tobacco and Firearms agents, to other small efforts that even he understands aren’t earthshattering changes. Even viewed in a light most favorable to the President, I don’t think anybody can rationally say these are going to have a huge impact on gun crime. I have to agree with the NRA lobbyist that Jonathan Weisman of the New York Times quoted here:
NRA lobbyist on Obama gun exec actions: “This is it, really? This is what they’ve been hyping for how long now?” https://t.co/XXeaMc0RV7 
— Jonathan Weisman (@jonathanweisman) January 5, 2016 
I was underwhelmed. The one component of the President’s agenda that did get major play – including front page Drudge treatment and a headline article in POLITICO – was the Department of Health and Human Services (HHS) new rule on reporting of mental health issues to the FBI. Drudge gave it top billing above the lead, as you can see here:
The Scaremongering Click-bait
The link Drudge used went to a POLITICO article by David Pittman, one of their “eHealth” reporters, under the headline  “Doctors can report ‘mentally ill’ patients to FBI under new Obama rule.” This sparked a debate across social media – including my own personal Facebook page – about what the President was doing, and a number of my friends, including some former combat veterans, expressed fear, shock and outrage that this kind of thing would be allowed.
So did I, for a minute. Even after reading the POLITICO article, I was still confused, and my lawyer Spidey-sense  was tingling – that’s the thing in every lawyer’s brain that makes us question whether somebody has the right information because something doesn’t smell right or even vaguely lawful. It’s also why we all answer every legal question with “it depends.”
The POLITICO article linked to the actual rule-making, which you can read for yourself here . The offending rule, which is on pages 55-56 of the linked document, is two pages long. That’s it. The rest of the rulemaking discussion and explanation makes the whole thing 56 pages long.
If you only read the headline on Drudge and POLITICO, you could believe that, as Pittman wrote, “the Obama administration on Monday finalized a rule  that enables health care providers to report the names of mentally ill patients to an FBI firearms background check system[,]” and “[u]nder the rule, which takes effect next month, for the first time health providers can disclose the information to the background check system without legal repercussions.”
If true, that would be a big deal. The last thing that anybody would want is for their doctor to be able to make a subjective diagnosis that someone is mentally ill, refer them to the FBI, and have their ability to buy a gun taken away. The idea that any one person – not even a judge – could nullify a constitutional right is mind-boggling, especially to anybody with even a passing understanding of the Constitution and the American system of due process. But that’s what this article wrote. Given the outrage, I decided to read for myself. I’m glad I did.
First, this new rule doesn’t remotely resemble what people have been claiming. It doesn’t give doctors the ability to report you to the FBI and declare you mentally ill. It doesn’t even really involve health care providers at all, and it certainly isn’t an attempt at taking guns away from vets, or open a back-door to gun confiscation as I have seen claims made of.
What does the new rule do?
The Health Insurance Portability and Accountability Act (HIPAA) was passed back in 1996. Among other things, it provided that individuals have a right to keep their personal health information (PHI) private, and barred health care professionals from releasing some kinds of PHI without the consent of the patient. This includes things like diagnoses. At the same time, the Gun Control Act of 1968 barred certain individuals from possessing or buying firearms – included in that prohibition were the mentally ill. The mentally ill were defined by the GCA and its implementing regulations as “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 determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.” These are referred to as the “federal mental health prohibitors.”
Under the terms of the Brady Law, records of federal mental health prohibitors are supposed to be included in the National Instant Criminal Background Check System (NICS) database that many states use for their background checks. Not every state uses them, as I noted here , however. The point here is that under existing federal law, those who have been adjudicated mentally ill or otherwise found incompetent by a court or other lawful authority (not just a doctor, but an agency with the legal capacity to find someone legally incompetent) are prohibited from possessing guns. This has been the law for almost half a century.
Nobody is going to argue with that – if you’re mentally ill enough to have been adjudicated incapacitated, you are exactly who we do not want to have access to firearms. Even the most pro-second amendment people (and I include myself in that list, even if some may not) agree with this.
So what’s the issue here?
The issue, according to the HHS rulemaking, is some state agencies – such as a State Board of Health – that has adjudicatory power or serves as a repository for state records of those who have been adjudicated mentally ill are also covered by the HIPAA Privacy Rule. HHS points out in the rulemaking that they believe at least seven states, including New York, have agencies that are covered under HIPAA but also have the records of individuals who are barred from gun possession because they qualify under one of the federal mental health prohibitors. Those agencies believe they are barred under HIPAA from providing that information to NICS. Thus, there may be some situations where the background checks aren’t as complete as they could be because they’re missing the records of those who have been adjudicated mentally ill.
So what does the new rule do? It removes that impediment.
Here’s specifically what HHS claims the rule change does.
“Under this final rule, only covered entities with lawful authority to make the adjudications or commitment decisions that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, are permitted to disclose the information needed for these purposes. The disclosure is restricted to limited demographic and certain other information needed for NICS purposes. The rule specifically prohibits the disclosure of diagnostic or clinical information, from medical records or other sources, and any mental health information beyond the indication that the individual is subject to the Federal mental health prohibitor.”
Nowhere does it mention doctors or patients. Nowhere does it mention subjective diagnoses. Nowhere does it mention taking away rights without due process. Nowhere does it mention telling the FBI about your mental health treatment. That’s not what this rule does or was designed to do.
Here’s the other thing – this is a rule that has been publicly discussed and debated for almost three years. Three years. The first HHS version of the rule was put out for public comment on April 23, 2013. The second HHS version was put out on January 7, 2014 – almost exactly two years ago. The final version is what the President announced today. Included in the rulemaking were HHS’s responses to a number of specific questions and concerns raised by the public. Here are a few that are crucial:
Regarding the veteran issue, on page 37:
Comment: A number of commenters expressed concern that a finding of mental incompetence by the Veterans Administration (VA), which could make an individual subject to the Federal mental health prohibitor and cause the individual to be reported to the NICS, may be based solely on a determination that the veteran is unable to handle financial affairs, without regard to dangerousness. The commenters argued that these veterans do not receive due process before being made subject to the Federal mental health prohibitor and believed that the proposed rule would exacerbate this problem.
Response: We note that, as a federal agency, the VA is required by law to report prohibited persons to the Attorney General, who oversees the NICS. This final rule does not affect that requirement or change the procedures relating to adjudications that make individuals subject to the Federal mental health prohibitor.
One of the commenters even expressed concern that this could be used by doctors inappropriately. Here’s what HHS said, on page 38-39:
Comment: One commenter recommended that the Department evaluate whether the rule would have the unintended consequence of permitting the reporting of individuals based on mere medical findings.
Response: As we explain above, the rule does not create a broad permission for treating providers to report information about their patients to the NICS. Rather, the rule is narrowly tailored to permit limited disclosures of information about individuals who are subject to the Federal mental health prohibitor, which applies only where an individual has been involuntarily committed or otherwise has received a relevant adjudication from a court, board, commission, or other lawful authority.
Fact Check Fail
Leaving aside the usual claims that we can’t trust anything this Administration says, does any of this bear any rational relation to the POLITICO or Drudge headlines?
No. Not at all.
This is journalistic malpractice, people. It’s beyond the pale. There is no excuse for the wanton misrepresentations of what is a relatively harmless policy change that will – by HHS’s own estimates – perhaps(!) apply to a handful of HIPAA covered agencies in perhaps seven states. There are people across the country either working themselves into a fever pitch under the belief that President Obama is letting evil anti-gun doctors take their guns away with no due process, or there are those who have sought treatment or are considering seeking treatment for mental illness who may second guess their decision to do so because they don’t want to have their rights taken from them. That is wrong and counterproductive. We want and need everybody who needs help to get it, and scaremongering clickbait headlines don’t help. Given the fact that POLITICO and their paid, professional “eHealth” reporters have had three years to read this rule, run it past a lawyer or two, and find out what this actually does and they still produce this bogus nonsense is unpardonable.
I am completely disgusted that any mainstream media outlets could fail so utterly in their role of educating the public – even to the extent that I have to spend three hours on a Tuesday night fact-checking people who do this for a living, because I care about the truth and not scaring people unnecessarily.
Facts matter. The facts here are clear – you do not have to be worried about your doctor taking your guns away.
Bearing Drift rates this 5 out of 5 on the Bullshit Meter.