Part 1: The Social Security Admin.’s Regulations Designed to Take Away Firearms

SSA and NICS = Gun Confiscation
SSA and NICS = Gun Confiscation

ammoland-logoU.S.A.-( This article is the first of two and introduces the new Social Security Administration’s new regulations designed to disqualify many beneficiaries from possessing or purchasing firearms. It discusses who is at risk and the overall process used to identify those who will be reported to the National Instant Criminal Background Check System.

The practice of federal agencies of determining a person’s mental capacity to manage their own affairs and then reporting them to the Department of Justice to prevent them from possessing or purchasing firearms is one of the more recent efforts to strip away Second Amendment rights. Both the Department of Veterans Affairs and the Social Security Administration have begun or plan to begin making those determinations without a hearing, right to counsel, right to confront adverse witnesses, etc., as normally provided before a person is deprived of fundamental rights. Once these executive administrative branches make a finding that a person is unable to manage his or her own affairs, they report these findings to the Department of Justice for inclusions in the NICS system, preventing these individuals from possessing or purchasing firearms

The statutes do not define who can make the determination that someone is a “mental defective.” The Department of Justice has decided who can make these decisions, issuing regulations that provide an expansive list to include not only a court, but a “board, commission, or other lawful authority.” Other executive branches of the federal government have determined they qualify as such authority, including the Social Security Administration and U.S. Department of Veterans Affairs. The Department of Veterans Affairs has reported approximately 177,000 veterans to the NICS without any formal proceedings. The Social Security Administration has issued its own regulations which are effective January 18, 2017, but “compliance is not required until December 19, 2017.”

The process leading to these regulations began on January 4, 2016, when the White House issued a “Fact Sheet” for “New Executive Actions to Reduce Gun Violence and Make our Communities Safer.” One of these Executive Actions is designed to:

Include information from the Social Security Administration in the background check system about beneficiaries who are prohibited from possessing a firearm. Current law prohibits individuals from buying a gun if, because of a mental health issue, they are either a danger to themselves or others or are unable to manage their own affairs. The Social Security Administration (SSA) has indicated that it will begin the rulemaking process to ensure that appropriate information in its records is reported to NICS. The reporting that SSA, in consultation with the Department of Justice, is expected to require will cover appropriate records of the approximately 75,000 people each year who have a documented mental health issue, receive disability benefits, and are unable to manage those benefits because of their mental impairment, or who have been found by a state or federal court to be legally incompetent. The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health.

Remove unnecessary legal barriers preventing States from reporting relevant information to the background check system. Although States generally report criminal history information to NICS, many continue to report little information about individuals who are prohibited by Federal law from possessing or receiving a gun for specific mental health reasons. Some State officials raised concerns about whether such reporting would be precluded by the Privacy Rule issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals.

In December 2016, the Social Security Administration added a new set of extensive regulations implementing reporting requirements to report social security beneficiaries to the National Instant Criminal Background Check System.

When Are Beneficiaries At Risk of Being Reviewed? The Social Security Administration [“SSA”] will make these “capability findings . . . in connection with initial claims on or after December 19, 2017.” In addition, these capability findings will be “in connection with continuing disability reviews . . . on or after December 19, 2017” which include “age-18 redeterminations.” However, these capability findings for reviews will only be made when the Social Security Administration “appoint[s] a representative payee for an individual in connection with a continuing disability review.”

Gary B. Wells is licensed to practice law in the states of Texas and California.
Gary B. Wells is licensed to practice law in the states of Texas and California.

Which Beneficiaries Are At Risk of Being Identified? “During [the SSA] claim development and adjudication process, or when [SSA] take[s] certain post-entitlement or post-eligibility actions” as described in the preceding paragraph, the Social Security Administration “will identify any individual” who meets all five of the following criteria as having been “adjudicated as a mental defective”:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments [as explained below]
  3. Has a primary diagnosis code[] in [SSA’s] records based on a mental impairment;
  4. Has attained age 18, but has not attained full retirement age;[] and
  5. Requires that his or her benefit payments be made through a representative payee because [the SSA] ha[s] determined . . . that he or she is mentally incapable of managing benefit payments.

Listing of Impairments. The “Listing of Impairments” referenced above is found in Appendix 1 to subpart P of part 404 of Title 20 of the Code of Federal Regulations. This listing “describes for each of the major body systems impairments that [SSA] consider[s] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience.” The relevant portion is section twelve of Part A regarding mental disorders. This section is quite lengthy and well beyond the scope of this analysis. However, section twelve provides the following overall introduction:

The evaluation of disability on the basis of mental disorders requires documentation of a medically determinable impairment(s), consideration of the degree of limitation such impairment(s) may impose on your ability to work, and consideration of whether these limitations have lasted or are expected to last for a continuous period of at least 12 months. The listings for mental disorders are arranged in nine diagnostic categories: Organic mental disorders (12.02); schizophrenic, paranoid and other psychotic disorders (12.03); affective disorders (12.04); intellectual disability (12.05); anxiety-related disorders (12.06); somatoform disorders (12.07); personality disorders (12.08); substance addiction disorders (12.09); and autistic disorder and other pervasive developmental disorders (12.10). Each listing, except 12.05 and 12.09, consists of a statement describing the disorder(s) addressed by the listing, paragraph A criteria (a set of medical findings), and paragraph B criteria (a set of impairment-related functional limitations). There are additional functional criteria (paragraph C criteria) in 12.02, 12.03, 12.04, and 12.06, discussed herein. We will assess the paragraph B criteria before we apply the paragraph C criteria. We will assess the paragraph C criteria only if we find that the paragraph B criteria are not satisfied. We will find that you have a listed impairment if the diagnostic description in the introductory paragraph and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied.

The criteria in paragraph A substantiate medically the presence of a particular mental disorder. Specific symptoms, signs, and laboratory findings in the paragraph A criteria of any of the listings in this section cannot be considered in isolation from the description of the mental disorder contained at the beginning of each listing category. Impairments should be analyzed or reviewed under the mental category(ies) indicated by the medical findings. However, we may also consider mental impairments under physical body system listings, using the concept of medical equivalence, when the mental disorder results in physical dysfunction. (See, for instance, 12.00D12 regarding the evaluation of anorexia nervosa and other eating disorders.)

The criteria in paragraphs B and C describe impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations in paragraphs B and C must be the result of the mental disorder described in the diagnostic description, that is manifested by the medical findings in paragraph A.

SSA Process of Identifying Persons to Report. The process that may potentially cause a person to be reported to the DOJ begins with the SSA’s finding that the individual (1) “has been found disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments” as explained above and (2) the SSA needs “to make a capability finding . . . as a result of a mental impairment.”

Once this occurs, the SSA begins “commencement of the adjudication” to determine “whether, as a result of a mental impairment,” the individual is (1) capable of managing his or her own benefits; or (2) his or her interests would be better served if [SSA] certified benefit payments to another person as a representative payee.” At that time, the SSA “will provide both oral and written notice to an affected individual” that:

  • (a) A finding that he or she meets the criteria in § 421.110(b)(1) through (5), when final, will prohibit the individual from purchasing, possessing, receiving, shipping, or transporting firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);
  • (b) Any person who knowingly violates the prohibitions in 18 U.S.C. 922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to $250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and
  • (c) Relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available under the NIAA.

Information SSA Reports to DOJ. At least each quarter, the SSA “will provide information about any individual who meets the criteria [as having been adjudicated by them as a mental defective] to the Attorney General, or his or her designate, for inclusion in the NICS. The information . . . includes the name of the individual, his or her full date of birth, his or her sex, and his or her Social Security number. [SSA] will also report any other information that the Attorney General determines Federal agencies should report to the NICS.”

Removal of Individual’s Record from NICS. The SSA “will identify when the record of an individual that [SSA] previously identified for submission to the NICS . . . should be removed from the NICS database” and “notify the Attorney General . . . that an individual’s record should be removed from the NICS database only” when the SSA:

  1. Finds “that an individual whom we previously required to have benefit payments made through a representative payee is now capable of managing his or her benefit payments without the need for a representative payee”
  2. Is “notified that the individual has died;”
  3. Receives “information that [SSA] reported an individual’s record to the NICS in error (e.g., [SSA] reported to the NICS the record of an individual who does not have a primary diagnosis code in [SSA’s] records that is based on a mental impairment, or [SSA] reported the record of an individual who does not have a representative payee);” or

The next article will discuss the process for applying for relief after the SSA has made a finding of mental incapacity and made a report to the NICS.

Gary B. Wells, Firearms Attorney
Gary B. Wells, Firearms Attorney

About Gary B. Wells

Gary B. Wells is licensed to practice law in the states of Texas and California. He is the author of “Firearm Laws for Business & Their Customers,” which can be purchased from his website, and provides a wide range of legal services for firearm businesses and owners.

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