Last week, we were delighted that President Obama again made a very emotional and heart-felt appeal, backed formally this time by specific Executive Orders, to improve our national system of background checks for gun purchases. I have argued many times that such actions are vitally necessary.
We also support very strongly the president’s effort to increase our national budget for mental healthcare by $500 million in 2016. As we are painfully aware, such funds are essential to meet current service needs. This is especially true in light of the loss of about $4.35 billion in state and county mental health funds in recent years as a result of the Great Recession.
I hasten to point out, however, and we must emphasize repeatedly, these two actions—gun background checks and mental health funding--are quite separate from each other, and they are not causally related. It would be a very definite mistake to link them too closely. To do so runs the risk of further stigmatizing the population of persons who suffer from mental health and substance use conditions. As has been stated very frequently, persons with these conditions are far, far more likely to be the victims of crime than the perpetrators.
Our concerns with the Executive Orders
As part of these Presidential Executive Orders, we do have some very grave concerns about the removal of Health Insurance Portability and Accountability Act (HIPAA) privacy protections for persons with mental illness and the targeting in these Executive Orders of persons who have mental illness disabilities and who receive Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) payments from the Social Security Administration (SSA).
What are our primary concerns?
Concern with Definitions. First, let me begin by identifying some major problems regarding the definition of persons with mental illness. The definition being used includes persons subject to the “federal mental health prohibitor” established under the Gun Control Act of 1968 and regulations issued by the Department of Justice. The actual definition is: “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.”
Unfortunately, this definition encompasses persons with so many different types of disability that it lacks any useful specificity. For example, it confuses persons with mental illness, persons with intellectual and developmental disabilities (ID/DD), persons unable to manage their business affairs, and persons who meet the legal definition of incompetency or not guilty by reason of insanity, each of whom can be quite different. Furthermore, the meaning of each of these terms varies from state to state. Finally, the definition also is very antiquated, because it uses terminology no longer recognized in our fields. In fact, our national mental illness definitions have undergone major revisions several times since 1968.
Concern with Scope of the SSI/SSDI Proposal. In a very recent analysis completed by NACBHDD, we identified 3,912,961 SSI and SSDI beneficiaries (30.2% of the total rolls) who are disabled by mental illness, and an additional 1,448,784 beneficiaries (11.1% of the total rolls) disabled by ID/DD. Thus almost 5.4 million persons with mental conditions (more than 40% of the total rolls) potentially are at risk of falling under the definition provided above.
As a shortcut to picking people from these rolls to include on the “mental health prohibitor” list for the gun background check system, one likely proposal by SSA will be to include beneficiaries who have a “representative payee”, that is someone who receives their payment for them each month. Stated simply, this is not an appropriate indicator. Many beneficiaries who have representative payees do so because they are transient or homeless, not because they do not have the capacity to handle their own affairs. Thus, such a proposal would inappropriately and needlessly stigmatize thousands of innocent people.
Concern with Reporting Processes. Under the just-released HIPAA rule, entities that order involuntary commitments or make other adjudications that subject persons to the “mental health prohibitor”, or that serve as repositories of the data, are permitted to use or disclose the information needed for reporting of such persons, either directly to the national system or to a state data system. Fortunately, this rule does not permit covered entities to disclose the personal health information of persons who are subject to a state-only prohibitor, and the information is restricted to limited demographic and certain other characteristics needed for background check purposes. It 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 “mental health prohibitor”.
At the very minimum, this disclosure should be reported to the person affected, and that person should have the legal right to contest the designation through a court process. Without this, no corrective is available to address errors, bias, or outright discrimination. Also, it will be just as important to define very clearly the process through which people can be removed from the background check system as it is to define the enrollment process. People do recover from mental illness and substance use conditions, and they do resume very productive and useful lives in the community. Under these circumstances, we must question why they still would be on the “mental health prohibitor” list.
Our next action steps
Most clearly, the definitions, scope, and processes of being enrolled on the “mental health prohibitor” list all need our urgent attention and advocacy.
Proximal action includes our essential advocacy on the proposed rule being developed by SSA for persons enrolled in SSI and SSDI. We know that SSA is engaged in that endeavor right now.
More distal actions can be taken gradually as new bills are introduced in the Congress. We also should use such opportunities to educate the White House staff and the American public about our concerns.
We do need to speak up, and we do need to be crystal clear in our advocacy on gun control.