N.H. Looks at Including Mental Health Records in Gun Background Checks

Sunday, June 09, 2013
Concord — For now, a person can be released from involuntary admission at the New Hampshire state hospital and buy a gun the same afternoon. Even though the sale is prohibited by federal law, New Hampshire doesn’t make mental health records available for background checks.

Gov. Maggie Hassan and other state officials are asking whether that should change.

Hassan has asked state agencies to recommend safety improvements involving guns and mental health, including ideas for making appropriate mental health records available for background checks.

“Gov. Hassan believes we must always be looking for ways to keep New Hampshire’s citizens safe from harm, and that we owe it to those we have lost to tragic violence to come together and determine how we can make our communities safer and better,” said spokesman Marc Goldberg.

Federal law prohibits anyone “adjudicated mentally defective” from buying a gun from a federally licensed gun dealer, which includes gun shops. Federal laws define that term as anyone who has been involuntarily committed to a mental hospital, found incompetent to stand trial or not guilty by reason of insanity, or whose mental illness makes them a danger to themselves or others.

But the federal government does not require states to make relevant records available to its National Instant Criminal Background Check System. And many don’t.

New Hampshire is one of nearly a dozen states that have not adopted the necessary laws to make otherwise confidential mental health records available for gun purchase background checks. But in those states that have, experience suggests the task Hassan is undertaking will be harder than expected.

Many states that have adopted the necessary laws still found it difficult to agree on what records should be provided to databases and which state agency should oversee the effort.

For example, Maine adopted the required laws to provide otherwise confidential mental health records to the federal background database. But it had submitted only 35 records as of 2011 because of disagreements over records and the logistics of submitting them, according to Mayors Against Illegal Guns, which looked at every state for its 2011 report, “Fatal Gaps.”

Maine health officials want to include only involuntary admissions that last longer than 72 hours, while safety officials believe records of shorter stays should be included, the report said.

Nebraska, meanwhile, has been keeping an in-state database of mental health records since the late 1990s for the handgun purchases it checks, according to Mayors Against Illegal Guns.

But Nebraska health officials have resisted sharing those records with the federal database, which in that state is consulted during the purchase of long guns like rifles and shotguns, the report said. As a result, Nebraska had sent only two mental health records to the federal database as of late 2011, the report said.

Looking at the Challenges

Earl Sweeney, the assistant commissioner of the state Department of Safety, has began assessing the challenges of making New Hampshire’s mental health records available to his agency, which does background checks for handgun sales, and the federal database, which is used for rifle and shotgun purchases.

Sweeney’s goal is to make recommendations in time for legislation to be introduced next year.

“No system is foolproof,” Sweeney said last week. “But we certainly could improve ours in terms of the type of information provided and the speed of making information available.”

Sweeney ticked off some of the obvious obstacles.

First, the state Department of Safety does not have access to mental health records. The state’s courts do, but the state Administrative Office of the Courts determined in April after its own review that it has no legal authority to report those records for firearm background checks.

State and federal law protects the confidentiality of medical records. An exception can be found in RSA332-1, the law governing medical records. It says health care providers shall not reveal confidential information without the patient’s consent “unless provided for by law or by the need to protect the welfare of the individual or the public interest.”

That has not been considered sufficient authority for the sharing of mental health records.

Court officials determined that it was up to lawmakers, not state agencies, to decide more specifically which, if any, mental health records should be provided. Court officials noted that they submit domestic violence findings, but only because the Legislature passed a law requiring it.

“This is not a matter for the court system to decide because it involves many public policy issues, including privacy rights,” read a statement issued by court spokeswoman Laura Kiernan.

Second, Sweeney said it’s also important to remember that mental illness is an illness, not a crime. “There are advocates for the mentally ill who feel this would stigmatize someone,” Sweeney said. “Mental illness can be treated … so there should be a way to make sure someone is not on (the database) for life if they are treated.”

Several states, however, have written “restoration” laws that provide a way for someone to have their mental health records removed from the database if their mental health condition has improved.

Florida adopted such a law so it could be eligible for a federal grant to improve its collection of mental health records, said Gretl Plessinger, spokeswoman for the Florida Department of Law Enforcement. Florida had already adopted a law allowing court clerks to make the records available.

Between 2009 and 2010, Florida received $3.2 million to cover additional staff costs of collecting and submitting years of mental health records, according to Mayors Against Illegal Guns. As a result, Florida has submitted nearly 90,824 mental health records to the federal database.

“The (court) clerks have been very easy to work with,” Plessinger said. “When the law was changed (allowing them to submit records), it was a smooth process.”

Finally, Sweeney said, it’s not clear what mental health records should be included. “Would you just collect records of involuntary commitment or would you also collect records on someone who had checked (himself) into a hospital?” he said. Sweeney said it’s difficult, for example, to know what mental health records would prove someone “lacks the mental capacity to contract or manage their own affairs,” a status that disqualifies someone from buying a gun under federal law.

These are questions the state Department of Health and Human Services are debating too, said Jeffrey Souther, a senior project manager at the state hospital. “I’m sure in every mental health institution in the nation this has come up,” Souther said. “It would be unreasonable to think that wasn’t happening.”

Like court officials, Souther said his colleagues believe that lawmakers, not state agencies, must decide how the state should proceed when it comes to making mental health records available for background checks. He noted that federal health law prohibits his agency from releasing the same records that federal law consider relevant to background checks.

“My sense is that if this came up as a policy question, if a senator or a representative put a bill in, there would be a vigorous public hearing about whether this was something we should be doing,” Souther said.

Attempts to Change The Law

New Hampshire lawmakers did look at this issue — ages ago. In 2002 and 2003, Democratic senators submitted bills that would have required relevant mental health records to be submitted to the federal database for gun background checks. Neither bill made it out of the Republican-controlled Senate.

Sen. Sylvia Larsen, a Concord Democrat, and Attorney General Joseph Foster, then a Senate Democrat, sponsored the 2003 bill. Larsen said Friday that sponsors found themselves in the “crosshairs” of the National Rifle Association, which opposed the bill.

But, Larsen said, such a bill might get a very different reception today because the NRA now publicly supports including mental health records in background checks during gun purchases.

Gun rights groups could not be reached Friday, but Evan Nappen, a Concord attorney who focuses on gun laws, said he enthusiastically supports making mental health records available to state and federal authorities doing gun purchase background checks.

“Here’s the bottom line,” Nappen said. “Who are we doing a favor if we let somebody who is disqualified under federal law from buying a gun? The person (buying the gun) is subject to prosecution. The gun dealer is harmed by making a sale to someone who shouldn’t have a gun.”

Nappen stopped short promoting the idea a safety measure, though. “Does it make us safer?” he asked. “I don’t know about that. A crazy person can still get their hands on something to cause damage. The purpose … is to protect (gun) dealers from liability.”

And for that reason, Nappen is upset that New Hampshire officials did not follow Florida’s course after the Virgina Tech shootings in 2007 and apply for federal money to cover the cost of collecting and submitting these records. “We missed out on millions,” Nappen said. “We received zero.”

At the time, then-attorney general Kelly Ayotte served on a task force of the National Association of Attorney Generals that concluded states needed to do a better job of providing mental health records to the background database.

“The efficacy of (the federal database) largely depends on state and federal agencies reporting the relevant records,” read the 2007 report. The task force recommended that “states should consider modifying or changing state laws as necessary to insure that all information that is relevant to federal firearms prohibitions can in fact be provided by the state to (the federal database.)”

No legislation was introduced in New Hampshire after that report, according to a check of the legislative website.

Ayotte is now a U.S. senator whose recent vote against expanding background checks beyond gun dealers has garnered a lot of attention. Mayors Against Illegal Guns has produced at least three ads criticizing her vote, characterizing it as, among other things, a step backward on gun control.

Ayotte has said defended her vote saying she believes the better approach to gun control is enforcing the laws already in place. Asked whether Ayotte had advocated for a change in New Hampshire law in 2007 to make mental health records available for background checks, Ayotte’s spokesman, Jeffrey Grappone, responded by email: “An attempt to change the law failed to even make it out of committee shortly before (Ayotte) became attorney general, reflecting a significant lack of legislative support” Grappone wrote.

Grappone said Ayotte believes New Hampshire needs to get relevant mental health records to the background check system and added that she had co-sponsored and voted for federal legislation that penalizes states for failing to do so.

Foster, who was confirmed in April as attorney general, recalled the unsuccessful bill he sponsored with Larsen in 2003. He said Friday that his office is will look at the issue again.

“I think state government as a whole is looking at an appropriate response to the Newton (Conn.) tragedy,” Foster said. “And the issues of mental health and background checks and other measures will be part of that.”

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