Mental Illness, HIPPA and NICS

Health and Human Services Seeking Comments Before Modifying HIPPA Rules Concerning Mental Illness Reporting to Background Check System

National Instant Criminal Background Check System (NICS)

The NICS is a computerized system for determining eligibility to purchase a firearm in the United States. Federal Firearms License holders use the NICS to determine if they are able to sell a firearm to a prospective purchaser.  The program was created as a result of the Brady Handgun Violence Prevention Act of 1993 and is administered by the FBI.  Firearm sales can only be made if the buyer is not prohibited from buying a firearm under the Gun Control Act of 1968.

The sources of information in NICS

The information in NICS is obtained from the National Crime Information Center (NCIC) and the Interstate Identification Index (III).  NICS Index also contains information that may not be in the NCIC or the III systems. Information is gathered from local, state, tribal, and federal agencies of persons prohibited from obtaining firearms.

Reasons to prohibit purchases 

According to the FBI, Section 922(g) of the Gun Control Act prohibits shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year
• Is under indictment for a crime punishable by imprisonment for a term exceeding one year
• Is a fugitive from justice
• Is an unlawful user of or addicted to any controlled substance
• Has been adjudicated as a mental defective or committed to a mental institution
• Is an alien illegally or unlaw-fully in the United States or who has been admitted to the United States under a nonimmigrant visa.
• Has been discharged from the Armed Forces under dishonorable conditions
• Having been a citizen of the United States, has renounced U.S. citizenship
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner
• Has been convicted in any court of a misdemeanor crime of domestic violence

http://www.healthandfitnessvault.net/

Mental Health Exclusion

The NICS Section receives telephone calls from mental health institutions, psychiatrists, police departments, and family members requesting placement of individuals into the NICS Index. Frequently, these are emergency situations and require immediate attention. Any documentation justifying a valid entry into the NICS Index must be available to the originating agencies.

HHS seeks to clarify HIPPA rules related to reporting

Health and Human Services published a Notice of Proposed Rulemaking (NPRM) on January 7, 2014, to remove unnecessary legal barriers under the HIPAA Privacy Rule that may prevent states from reporting certain information to the National Instant Criminal Background Check System (NICS). The NICS helps to ensure that guns are not sold to those prohibited by law from having them, including felons, those convicted of domestic violence, and individuals involuntarily committed to a mental institution. However, the background check system is only as effective as the information that is available to it.

The goal is to remove barriers

On April 23, 2013, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) requesting the public’s input on how HIPAA may affect some states’ ability to report to the NICS and ways in which these barriers could be addressed without discouraging individuals from seeking mental health services.  Over 2,000 comments were received from individuals, state agencies, health care providers, professional organizations, consumer advocacy groups, and other stakeholders.  After considering the public comments received, the Department developed a NPRM, which proposes to modify the HIPAA Privacy Rule to permit certain HIPAA-covered entities to disclose to the NICS the identities of persons prohibited by federal law from possessing or receiving a firearm for reasons related to mental health.

Would grant permission, not requirement, to submit minimum necessary

The proposal would give states and certain covered entities added flexibility to ensure accurate but limited information is reported to the NICS, which would not include clinical, diagnostic, or other mental health information.  Instead, certain covered entities would be permitted to disclose the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.  Importantly, the proposed permission focuses on those entities performing relevant commitments, adjudications, or data repository functions.  The proposed modifications would merely permit, and not require, covered entities to report to the NICS.  In addition, the proposed rule would not change the existing permitted uses and disclosures of protected health information under the HIPAA Privacy Rule.  The deadline for comment is March 10, 2014.

Cited Sources: http://www.fbi.gov/about-us/cjis/nics/general-information/nics-index

and 

http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/NICS/

Child Sexual Exploitation

Guest Blogger and child sex crimes investigator, Tom Clinton, tells us what to do when confronted with this nightmare 

It is real and it can happen to anyone 

The sexual exploitation of children is a horrifying reality in our society. Whatever the causes, there is no excuse for the moral depravity that leads to the exploitation of the weak and vulnerable. Victims are too young to know they are being taken advantage of and lack the ability to react appropriately. Recently two stories came out where adults, victimized as children, revealed their torment.  Only after years of anguish and the courage found in adulthood could they confront their abusers.  One was the daughter of a celebrity who wrote an open letter about the abuses she suffered at the hand of her adoptive father.  The other was a mom who utilized You Tube to confront a former coach and teacher who took advantage of her through a position of authority.  Both victims alluded to thinking it was normal at the time it was happening when in reality, they were carefully groomed and manipulated into this position of vulnerability.

Groomers and manipulators are predators

Child Victim - Now Brave Adult
http://www.visaliatimesdelta.com/

The myth that ALL child molesters are “strangers” to our children is just that, a myth.  Actually, the “acquaintance molester” is probably the most common offender in today’s society. The term “acquaintance” has been coined to describe this type of child sexual offender because the victim child/children and typically the victims’ parents/guardians know and trust this person and willingly permit them access to our child...i.e. a teacher, coach, friend, guardian, clergy, neighbor, policeman, doctor etc.

Sensory overload

Unfortunately, parents, grandparents, guardians, relatives, friends, or other caregivers can be lulled into a sense of denial about the existence or possibility that it could happen to one of their children.  What is worse, is when this happens, these caregivers are often at a complete loss about what to do.  They are in a state of shock and a myriad of thoughts race through their heads. Between dealing with this emotional nightmare and trying to harness their thoughts as to what action to take, they find themselves confused, troubled and in a state of shock.

A case in point

Recently, I was contacted by a concerned parent who was the mother of two children, both under the age of 9.  The children had disclosed to her that they were being “touched on their privates and asked to touch the privates” of their coach.  At the time of my interview, the mother had been aware of the situation for a week and described herself as “numb, lost, confused and angry”, yet she and her husband were at a loss about what to do.  

While the parents immediately took action to not let their children near the coach after the abuse came to light, their thoughts and emotions paralyzed them and they were at a loss as to what to do next.  After a week of knowing what happened, the parent’s inaction and concerns included the following: 

• They had not informed law enforcement or anyone other than a few trusted friends and some family. 
• They feared for their children’s safety if they went to the police because they feared reprisals from the predator once he learned that the children accused him.  
• They wondered if they should change the locks at their house due to these fears of retaliation.
• They wondered what would happen to their children in school once the newspapers ran the story and were identified as victims. 
• They worried if the children would be stigmatized in some fashion.
• They were confused because their children said they “still really like their coach and did not want to get him in trouble.”
• Friends advised them to avoid the police and just disassociate themselves and the children from this coach…and just let it go!  

Upon learning of the abuse, parents/caregivers need to take the following actions:

It is incumbent upon the caregiver to react, no matter how depraved the actions inflicted by a predator on the child victim(s).  

1. Prevent the child from being exposed to further abuse once it is suspected.

2. Do not blame your child. Whatever they have disclosed to you, your child is not at fault. They have done nothing wrong.

3. Contact law enforcement as soon as possible and assist them in dealing with this disclosure. They will work toward the identification and prosecution of the person responsible for the sexual offenses against your children.

Important things to know and understand about this type of crime

• “Acquaintance molesters” are typically not a danger to your child or you. This type of predator has taken a lot of time to “groom” similar to “courting” your child. And as delusional as it sounds, the predator likely has feelings for the victim and is not out to physically harm them. 
• If your child expresses sympathy for the predator, it is not uncommon. Victims often times have feelings for the predator because of this “groomed” relationship.
• Your child’s name will never be disclosed by a newspaper especially in matters involving crimes against children. 
• It is very unlikely that your child was the only victim of this predator, to that end, law enforcement will attempt to identify other past and present child victims. 
• Your contact with law enforcement will introduce you to child advocacy centers whose mission it is to advocate for child victims of sexual abuse and therapeutic resources for them. They will be with you and your child throughout any potential criminal prosecution process.

Final Thought

The rage, anger, confusion, fear and any number of other emotions experienced by this mother when informed by her children of their molestation is natural and quite frankly expected. By having this glimpse at her experience, hopefully you will have a better understanding of how to cope with some of the fears and concerns you will experience and what needs to be done if, God forbid, this happens to your family.

Tom Clinton spent 30 years as a United States Postal Inspector where he routinely investigated child sex crimes involving the sexual exploitation of children through the manufacture, production, distribution and possession of child pornography and related crimes. He is currently a senior investigator and consultant for CSI.