NICS: Challenges to Mental Health Record Sharing and Recent Congressional Activity

Kelly J. Harbitter, Director, Government Affairs, SEARCH, The National Consortium for Justice Information and Statistics

Last December's mass murder at Sandy Hook Elementary refocused the national spotlight on gun control, and renewed efforts by the Administration and the 113th Congress to improve the background check process of prospective firearms purchasers.

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Launched by the FBI in 1998, the National Instant Criminal Background Check System (NICS) is used at the point of sale to determine a person's purchase eligibility under federal or state law. 1 The system is linked to the National Crime Information Center (NCIC, a nationally accessible database on wanted persons and subjects of restraining orders), the Interstate Identification Index (III, the nation's criminal history record exchange system), and the NICS Index (identifying persons prohibited from possessing or receiving a firearm). Information in the NICS Index may not be available in the NCIC or the III. For example, III might show a disposition of "mental incompetency" from a criminal case on a rap sheet, while a NICS Index entry would record an involuntary commitment to a mental health facility unrelated to a criminal proceeding. Both are disqualifying events. NICS Index records are voluntarily provided by local, state, tribal, and federal agencies.

According to the FBI, more than 169 million NICS checks have been made since the system's inception, leading to more than 1 million denials. States are major users of the system. Approximately 52% of NICS transactions from November 1998 to April 30, 2013, (89 million of the 169 million) were by NICS Point-of-Contact states.2

Federal law establishes 10 categories that disqualify an individual from purchasing firearms.3 The vast majority of records in seven of these 10 categories are maintained by states. Thus, the overwhelming majority of firearms transfer denials are based on state records that were established and are maintained for criminal justice-related decision making. States make their records available to the NICS Index despite well-documented obstacles to effective sharing at the national level. Not the least of these obstacles is adequate funding.

While NICS has been a valuable decision-making tool over the years, there are clearly opportunities for improvement. On the minds of most decision makers these day - in part a reaction to mass shootings in Colorado and Connecticut - are records related to mental health adjudications and involuntary commitments.

Making Mental Health Data Available to NICS

Since the Virginia Tech tragedy in 2007, Congress and the Administration have focused on increasing the number of mental health records available to NICS, in part because one of the 10 disqualifying categories for firearms purchases is involuntary commitment to a mental health institution or an adjudication related to mental defect. While states have made noteworthy progress in submitting such records, significant obstacles remain. These include a lack of funds to build an infrastructure for electronic information sharing, continuing technical challenges with making disqualifying records available to NICS, and significant policy challenge - particularly related to privacy concerns in sharing mental health records. Except for mental health-related criminal case dispositions, which are found on the criminal history records accessed via III, this federal prohibition category relies on health information rather than criminal justice system information. Mental health records are maintained by agencies and organizations such as private and state hospitals, state mental institutions, state health agencies, and in civil court records. Patient privacy protections in these organizations' policies, as well as in state and federal regulations and statutes, typically preclude the sharing of these records with third parties - including criminal justice agencies like the FBI. Mental health records are also often missing personal identifying information, which NICS requires in order to properly match records to potential firearm purchasers.

There are also significant technological challenges to electronically exchanging mental health data. Older paper-based records need to be automated before they can be made available to NICS. Some mental health databases do not allow sorting and retrieval of the key information necessary for firearms transfer decisions or appeals. In many instances, the lack of access to disqualifying mental health information is attributed to privacy laws. Yet, NICS does not require diagnosis information - only names and basic identifiers. If mental health records are truly to be regularly and routinely considered in firearms transfer decisions, the law must balance the protection of individual privacy with the public safety benefits of sharing information on involuntary commitments.

What the States Are Doing to Address Mental Health Records Reporting

According to a July 2012 Government Accountability Office Report: "From 2004 to 2011, the total number of mental health records that states made available to the...(NICS) increased by approximately 800 percent - from about 126,000 to 1.2 million records - although a variety of challenges limited states' ability to share such records."4 The report also attributes much of the progress to the work of 12 states.

States have made concerted efforts in the past several years to improve the system. In Washington State, for example, reporting of mental health adjudications and involuntary commitments has occurred for a number of years. To further enhance the system, the state passed a new law effective this year that convenes law enforcement, mental health, courts and other agencies to develop a proposal for consolidating statewide involuntary commitment information and to deal with the privacy issues in doing so. The move is expected to make the reporting in this area even more streamlined and effective. In Colorado, the Bureau of Investigation (CBI) is developing technical solutions to accomplish real-time, electronic transfer of mental health information from state justice agencies to the CBI and NICS. Using federal funding for NICS enhancements, Alabama plans to overhaul its criminal history system and include specific capabilities to electronically collect mental commitment information from the local probate judges.

Many states are taking a more holistic approach to sharing information by creating or updating state databases and criminal history record systems with accurate and up-to-date information that can be electronically exchanged. Creating such capabilities directly benefits NICS via the ability to share records in many of the disqualifying categories, including court dispositions, corrections records, mental health adjudications or commitments, and misdemeanor crimes of domestic violence.

Congress, Administration Focus on Improvement in Mental Health Record Sharing and Funding NICS Enhancements

On the first day of the 113th Congress, lawmakers introduced 10 separate gun control bills, and dozens more were introduced shortly thereafter. The House and Senate have proposed significant increases in FY 2014 appropriations to improve NICS, with an emphasis on improving mental health record sharing in the system.

On the policy front, the Senate failed to pass sweeping gun control and background check legislation last April. Congress regrouped and pared down its approach. The latest effort is embodied in H.R. 1565, which expands background checks (although not as aggressively as the Senate legislation did) to ensure that all individuals who should be prohibited from buying a firearm are listed in NICS. The bill states that the Department of Justice should "make it a top priority to work with states to swiftly input missing records, including mental health records." The bill would reauthorize the National Criminal History Improvement Program (NCHIP) at $100 million in years 2014-2017. It would require all states to develop a four-year plan to improve NICS with specific performance measures, with penalties associated with a failure to meet those performance measures. It would require a relief from disabilities program (that allows an individual previously adjudicated as a mental defective to appeal to have their 2nd Amendment rights reinstated) in each state to qualify for funding.

Through nearly 20 executive orders, the President addressed a number of his gun control goals, including directing federal agencies to make all relevant records - including criminal history records and information related to persons prohibited from having guns for mental health reasons - available to NICS. Meanwhile, the Department of Health and Human Services began the rulemaking process to assess and address any unnecessary legal barriers under HIPAA (the Health Insurance Portability and Accountability Act) that prevent states from making appropriate data available to the federal background check system.

On the funding front, the real news for improving NICS comes out of the appropriations process. In his FY 2014 budget proposal to Congress, the President proposed $50 million to enhance information sharing to NICS. Both the House and Senate proposed major increases in NCHIP and NICS funding ($55 million combined funding in the House, $50 million to NICS improvement and $12 million to NCHIP in the Senate). Even with a compromise be-tween houses, there is promise of significant appropriations to enhance criminal history records databases in general, and NICS in particular.

In another uptick in funding for the states available this year, the Justice Department is funding a new $14 million grant program for FY 2013 (in addition to the existing $5 million for NCHIP and $6 million for NICS). The one-time program, administered by the Bureau of Justice Assistance, focuses on improving the completeness of firearm background checks through enhanced state data sharing. The goal is to fund approximately 10 state projects that place an emphasis on enhancing mental health information and felony conviction submissions to NICS. The grant solicitation period closed in May and award decisions are forthcoming.

Earlier this year, as Congress and other decision makers considered expanding background checks for firearms purchases, enhancing the states' role in the background screening system, and how to fund such efforts, SEARCH was asked for input and guidance. SEARCH published a white paper in February with information on the operational impacts, implications, and challenges of expanding and enhancing the NICS. The report, Improving the National Instant Background Screening System for Firearms Purchases: Recommendations by SEARCH, is available online at www.search.org.

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Conclusion

Ultimately, funding, policy, operational, and technical initiatives that improve the quality, timeliness and availability of criminal history record information generally will serve to improve public safety and the administration of justice, while also enhancing NICS. NICS, though often thought of in isolation, is very much dependent on the information that states contribute to critical criminal justice decision-making systems such as III and NCIC. Every effort that focuses on record completeness, improving disposition matching and availability, and making warrants, orders of protection, and other information available via systems such as NCIC improves the effectiveness of the NICS.

Footnotes

1Sales of firearms by private sellers - such as at gun shows or via the Internet - proceed without a background check unless required by state law.

2Thirteen states are considered "Point of Contact" states; POC states conduct the NICS checks for all firearms purchases and/or for alternate permits for handguns and long guns. In all other states the FBI performs either some or all of the checks for handgun and long gun purchases and for permits.

3Those categories are: felony conviction, under indictment, fugitive from justice, unlawful use/addiction to controlled substance, involuntary commitment to mental health institution/mental adjudications, domestic violence protection/restraining order, misdemeanor conviction for crimes of domestic violence, illegal alien, dishonorable discharge, renounced U.S. citizenship

4Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks, GAO-12-684.