One of the most under-discussed aspect of the President’s package of executive action on guns concerns a modification of regulations for HIPAA that allow states to report information concerning mental health to the federal government, which is incorporated into the instant background check system.

What troubles me the most from the 56-page rule is this comment and response:

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.33 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.34

The non-answer makes clear that people who are not at all dangerous would still be prohibited from acquiring a firearm.

The regulation makes clear that a person can be deemed unable to manage their affairs not just by a court, but by a “lawful authority,” which could be some anonymous government bureaucrat, lacking due process.

The Federal prohibitor regulations define an involuntary commitment as a formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The other applicable adjudications include determinations by a court, board, commission, or other lawful authority that persons are a danger to themselves or others, or 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.23

Although the federal act only applies to certain covered entities that cover “involuntary commitments,” the states are free to require all medical professionals to make these sorts of reports to the federal government.

The rule does not create a requirement to disclose. In addition, as explained at length in the NPRM and above, the rule does not apply to most treating providers, but only to those covered entities that are responsible for the involuntary commitments or other adjudications that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of such data. However, we note that covered entities have a responsibility to comply with all applicable laws, and this final rule does not preempt State or other laws that may require reporting to the NICS.

As I noted yesterday, the President’s actions provide blue states with a blueprint of how to proceed.