[House Report 118-677]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-677
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VETERANS 2ND AMENDMENT PROTECTION ACT
_______
September 16, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bost, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 705]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 705) to amend title 38, United States Code, to
prohibit the Secretary of Veterans Affairs from transmitting
certain information to the Department of Justice for use by the
national instant criminal background check system, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
Amendment........................................................
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Subcommittee Consideration.......................................
Committee Consideration.......................................... 4
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 20
Statement of General Performance Goals and Objectives............ 20
Earmarks and Tax and Tariff Benefits............................. 20
Committee Cost Estimate.......................................... 20
Budget Authority and Congressional Budget Office Estimate........ 20
Federal Mandates Statement....................................... 21
Advisory Committee Statement..................................... 21
Applicability to Legislative Branch.............................. 21
Statement on Duplication of Federal Programs..................... 21
Section-by-Section Analysis of the Legislation................... 21
Changes in Existing Law Made by the Bill, as Reported............ 22
Minority Views................................................... 24
Purpose and Summary
H.R. 705, the ``Veterans 2nd Amendment Protection Act,''
was introduced by Rep. Mike Bost of Illinois on February 1,
2023. The bill would prohibit the Secretary of the Department
of Veterans Affairs (VA) from transmitting information of a
veteran or a beneficiary of VA benefits to the National Instant
Criminal Background Check System (NICS) on the basis that VA
has appointed them a fiduciary to help them manage their VA
benefits, unless there is an order or finding of a judicial
authority that such veteran or beneficiary is a danger to
themselves or others.
Background and Need for Legislation
Section 1: Short Title
This Act may be cited as the ``Veterans 2nd Amendment
Protection Act.''
Section 2: Prohibition on Secretary of Veterans Affairs Transmittal of
Certain Information to the Department of Justice for Use by the
National Instant Criminal Background Check System
The Gun Control Act of 1968 (Pub. L. 90-617) (Gun Control
Act) makes it illegal for persons ``adjudicated as a mental
defective'' to ship, transport, possess, or receive firearms
and ammunition. The Brady Handgun Violence Prevention Act (Pub.
L. 103-159) (Brady Act), enacted on November 30, 1993,
established the National Instant Criminal Background Check
System (NICS), a computer system used to record information
about individuals not eligible to transfer, receive, or possess
firearms and ammunition. The Brady Act requires federally
licensed gun dealers to use NICS to conduct a background check
on any person attempting to purchase a firearm, and federal
agencies are required to report to the Department of Justice
(DOJ), for inclusion in NICS, information of individuals who
have been ``adjudicated as a mental defective''.\1\
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\1\NICS Improvement Amendments Act of 2007 (Pub. L. 110-180); 18
U.S.C. Sec. 922.
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VA appoints fiduciaries for beneficiaries of VA benefits,
including veteran beneficiaries, who are unable to manage their
VA benefits on their own as a result of a disability.
Fiduciaries receive payments of VA funds on behalf of those
beneficiaries and disburse those funds for the beneficiaries'
care and support. VA will appoint a fiduciary for a person who
a VA career employee in the Veterans Benefits Administration
(VBA) determines is ``mentally incompetent.'' VA defines
``mentally incompetent'' in its regulation 38 C.F.R.
Sec. 3.353(a) as a person ``who because of injury or disease
lacks the mental capacity to contract or to manage his or her
own affairs, including disbursement of funds without
limitation.''
Congress did not define the term ``adjudicated as a mental
defective'' in the Gun Control Act or the Brady Act. The Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) promulgated
a regulation defining the term ``adjudicated as a mental
defective'' as ``[a] determination by a court, board,
commission, or other lawful authority that a person, as a
result of marked subnormal intelligence, or mental illness,
incompetency, condition, or disease: (1) Is a danger to himself
or to others; or (2) Lacks the mental capacity to contract or
manage his own affairs.'' 27 C.F.R. Sec. 478.11. VA and ATF
interpreted the statutory term ``adjudicated as a mental
defective'' as including persons who satisfy VA's regulatory
definition of ``mentally incompetent.''\2\
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\2\ATF, ``Definitions for the Categories of Persons Prohibited from
Receiving Firearms,'' 62 Federal Register 34,637, 34,637 (June 27,
1997).
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As a result, for decades VA has reported to the DOJ for
inclusion in NICS information of veterans and other VA
beneficiaries whom a VA bureaucrat has determined to be
``mentally incompetent'' without a ruling by a judge or
magistrate. The determination of whether a veteran is
``mentally incompetent'' is made by a VA bureaucrat based on a
statement from a medical professional that the veteran is
unable to handle their VA compensation as a result of a
disability. The Committee understands that these statements do
not indicate one way or the other whether the person's
disability causes them to be a danger to themselves or others.
In other words, for decades VA bureaucrats have stripped over
250,000 veterans of their Constitutional right to bear arms
simply because they need assistance from a fiduciary to handle
their VA financial compensation benefits.\3\
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\3\Active Entries in the NICS Indices by State (January 3, 2023),
https://www.fbi.gov/file-
repository/active-entries-in-the-nics-indices-by-state.pdf/view.
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Further, before VA sends their name to NICS, a veteran can
only dispute VA's proposed determination of mental incompetency
under 38 C.F.R. Sec. Sec. 3.101, 3.353 by proving that they are
able to handle their finances. A veteran receiving VA
compensation may or may not wish to receive assistance from a
VA-appointed fiduciary to help them manage their compensation,
but that is a separate issue from whether they may wish to
retain their Constitutional right to bear arms. Only after VA
has already determined them mentally incompetent to handle
their VA financial benefits, does a veteran have a separate
opportunity to petition VA for relief from their name being in
NICS, but the burden falls on the veteran to prove to a VA
bureaucrat that they are not a danger to themselves or
others.\4\ The Committee is concerned that veterans with
fiduciaries do not have the same Constitutional due process
rights as civilians whom a judge, in a court of law, might find
that that civilian is a danger to themselves or others and
therefore should have their name transmitted for use in NICS.
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\4\Congressional Research Service, Gun Control, Veterans' Benefits,
and Mental Incompetency Determinations (July 14, 2023), https://
crsreports.congress.gov/product/pdf/R/R47626.
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To address this issue, this section would prohibit VA from
transmitting information to the DOJ for use by NICS of a person
solely because VA has determined that a person requires a
fiduciary to help them manage their VA benefits, without an
order or finding of a judge, magistrate, or other judicial
authority, that the person is a danger to themselves or others.
The Committee believes that this section is critical to
protect the Constitutional due process rights of veterans. This
change would also ensure that veterans are not subject to
different rules and NICS reporting standards compared to
civilians simply because those veterans require a fiduciary to
help them manage their VA financial compensation benefits.
Hearings
On July 18, 2023, the Committee on Veterans Affairs held a
legislative hearing on H.R. 705 and other bills that were
pending before the committee.
The following witnesses testified:
Mr. Ronald S. Burke Jr., Deputy Under Secretary,
Policy & Oversight, Veterans Benefits Administration,
U.S. Department of Veterans Affairs; Mr. Kevin Friel,
Deputy Director, Pension & Fiduciary Service, Veterans
Benefits Administration, U.S. Department Veterans
Affairs; Mr. David J. Barrans, Chief Counsel, Benefits
Law Group, Office of General Counsel, U.S. Department
of Veterans Affairs; Dr. Jeffery Swanson, Professor in
Psychiatry & Behavioral Sciences, Duke University
School of Medicine; Bob ``Shoebob'' Carey, Captain,
U.S. Navy (Ret), Chairman and Chief Bottle Washer,
National Defense Committee; Mr. Cole T. Lyle, Executive
Director, Mission Role Call; Ms. Kristina Keenan,
Deputy Director for National Legislative Services,
Veterans of Foreign Wars of the United States.
Committee Consideration
On May 1, 2024, the Full Committee met in open markup
session, a quorum being present, and ordered H.R. 705 be
reported favorably to the House of Representatives by a
recorded vote of 13-10. During consideration of the bill, the
following amendments were considered:
An amendment to H.R. 705 was offered by Rep.
Cherfilus-McCormick to create an exception under H.R.
705 for a beneficiary who has been diagnosed with
schizophrenia, traumatic brain injury, post-traumatic
stress disorder, bipolar disorder, or dementia. The
amendment was not agreed to by a recorded vote of 8
yeas and 11 nays.
An amendment to H.R. 705 was offered by Rep. McGarvey
to require the U.S. Court of Appeals for Veterans
Claims (Court) be the judicial body that would issue an
order or finding that a person is a danger to
themselves or others and that would establish expedited
procedures for making such orders or findings. The
amendment was not agreed to by a recorded vote of 10
yeas and 11 nays.
An amendment to H.R. 705 was offered by Rep. Crane to
require VA to notify the U.S. Attorney General pursuant
to 34 U.S.C. Sec. 40901(e)(1)(D) that the basis of any
transmittal of information of a veteran with a
fiduciary to NICS was incorrect and never applied. The
amendment was not agreed to by a recorded vote of 9
yeas and 13 nays.
Another amendment to H.R. 705 was offered by Rep.
Crane to prohibit a VA officer or employee from
initiating, utilizing, or participating in any
procedures relating to a state gun confiscation law.
The amendment was not agreed to by a recorded vote of
10 yeas and 12 nays.
An amendment to H.R. 705 was offered by Rep. Ramirez
to require VA, in partnership with an academic
institution, to conduct a study, and report to Congress
on such study, on any impediments to VA obtaining
extreme risk protection orders to temporarily prohibit
veterans who may be a danger to themselves or others
from purchasing, possessing, or transporting a firearm.
The amendment was not agreed to by a voice vote.
An amendment to H.R. 705 was offered by Rep. Ramirez
to require the U.S. Comptroller General to conduct a
study, and report to Congress on such study, on the
extent to which VA contractor employees who perform
compensation and pension examinations accurately and
consistently complete the mental competency section of
disability benefits questionnaires while performing
such examinations. This amendment would require such
study to examine the training provided to such
contracted employees; identify and evaluate any
additional training VA contractors provide to such
employees, and identify and evaluate any such training,
and identify and evaluate any training provided to VA
employees who evaluate medical evidence for mental
competency determinations. This amendment would also
prohibit the underlying bill from taking effect until
after the report on the study is submitted to Congress.
The amendment was not agreed to by a voice vote.
An amendment to H.R. 705 was offered by Rep. Mrvan to
prohibit the underlying bill from taking effect until
after the Secretary submits to Congress certification
in writing that the implementation of H.R. 705 will not
lead to an increase in the rate of death by suicide
using a firearm among veterans who have VA assigned
fiduciaries. The amendment was not agreed to by a
recorded vote of 10 yeas and 12 nays.
An amendment to H.R. 705 was offered by Rep. Brownley
to require the Secretary, in coordination with the
Assistant Secretary of Health and Human Services for
Mental Health and Substance Abuse, to conduct a study,
and report to Congress on such study, on the long-term
mental health outcomes and prevalence of suicidal
ideation and identification as ``dangerous'' among the
population of veterans who have a VA appointed
fiduciary. This amendment would also prohibit the
underlying bill from taking effect until after the
report on the study is submitted to Congress. The
amendment was not agreed to by a voice vote.
An amendment to H.R. 705 was offered by Rep.
Budzinski to require VA to carry out a study, and
report to Congress on such study, on the factors
contributing to the stigma around seeking VA mental
health care and other barriers to seeking VA mental
healthcare. This amendment would also require VA to
create and conduct an outreach campaign to counter
stigma around seeking VA mental health care based on
the study's findings. The amendment was not agreed to
by a voice vote.
An amendment to H.R. 705 was offered by Rep. Landsman
to require the Secretary, in coordination with the
Attorney General, to determine, and report to Congress
on, the number of veterans with VA appointed
fiduciaries (and whose names VA has sent to NICS under
the Brady Act) who have attempted to buy a firearm but
were prevented for doing so because their name was on
NICS and how many veterans with VA appointed
fiduciaries that have had a firearm confiscated by a
State or Federal entity. The amendment was not agreed
to by a voice vote.
An amendment to H.R. 705 was offered by Rep. Levin to
require VA to carry out a study, and submit a report to
Congress on such study, on the extent to which
beneficiaries have appealed or requested relief with
respect to the transmittal of identifiable information
to NICS and which beneficiaries have not appealed to
such transmittal of information and why. This amendment
would also prohibit the underlying bill from taking
effect until after the report on such study is
submitted to Congress. The amendment was not agreed to
by a voice vote.
An amendment to H.R. 705 was offered by Rep. Deluzio
to allow VA, as part of the Veterans Justice Outreach
Program, to support university law school programs that
provide legal assistance to veterans, including
university law school programs that represent veterans
in their appeals before VA related to the appointment
of fiduciaries, that assist veterans with filing and
appealing claims for VA benefits, and that assist
veterans with other civil, criminal, and family legal
matters as the Secretary considers appropriate. This
amendment would also authorize appropriations of $10
million per year for fiscal years 2025-2029. The
amendment was not agreed to by a voice vote.
An amendment in the nature of substitute to H.R. 705
was offered by Ranking Member Takano to change the
short title of the bill to ``Veterans 2nd Amendment
Protection and Lethal Means Safety Training Act'' and
to require VA, when determining whether a veteran is
mentally competent to handle their VA funds, to make an
additional determination as to whether the veteran is a
danger to themselves or others. The amendment would
require that determination be based on opinion(s) from
a licensed mental health professional. The amendment
would also prohibit VA from sending a beneficiary's
name to NICS if it is determined that such person is
not a danger to themself or others, but would allow VA
in such cases to determine that a beneficiary is not
mentally competent to manage their VA benefits.
Additionally, the amendment would mandate additional
lethal means safety, suicide prevention and safe
storage and handling training for VA employees or
contractors who regularly interact with veterans,
community care providers, and caregivers. The amendment
was not agreed to by a recorded vote of 10 yeas and 12
nays.
A motion by Rep. Bergman to report H.R. 705 favorably to
the House of Representatives was agreed to by a recorded vote
of 13 yeas and 10 nays.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report the legislation and amendments
thereto.
An amendment to H.R. 705 offered by Representative
Cherfilus-McCormick was not agreed to by a recorded vote of 8
yeas and 11 nays. The names of Members voting for and against
follow:
An amendment to H.R. 705 offered by Representative McGarvey
was not agreed to by a recorded vote of 10 yeas and 11 nays.
The names of Members voting for and against follow:
An amendment to H.R. 705 offered by Representative Crane
was not agreed to by a recorded vote of 9 yeas and 13 nays. The
names of Members voting for and against follow:
Another amendment to H.R. 705 offered by Representative
Crane was not agreed to by a recorded vote of 10 yeas and 12
nays. The names of Members voting for and against follow:
An amendment to H.R. 705 offered by Representative Mrvan
was not agreed to by a recorded vote of 10 yeas and 12 nays.
The names of Members voting for and against follow:
An amendment in the nature of a substitute to H.R. 705
offered by Ranking Member Takano was not agreed to by a
recorded vote of 10 yeas and 12 nays. The names of Members
voting for and against follow:
Final passage of H.R. 705 was agreed to by a recorded vote
of 13 yeas and 10 nays. The names of Members voting for and
against follow:
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives of H.R. 705 are to ensure that veterans
and their families can access their VA benefits without any
violation of their Constitutional rights.
Earmarks and Tax and Tariff Benefits
H.R. 705 does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the Congressional Budget
Office cost estimate on this measure.
Budget Authority and Congressional Budget Office Cost Estimate
H.R. 705 would prohibit the Department of Veterans Affairs
(VA) from reporting certain information to the Department of
Justice for use in the National Instant Criminal Background
Check System (NICS). That system is used by licensed firearms
dealers to determine whether a person can legally purchase a
firearm.
Under current law, VA appoints fiduciaries to manage
benefits for people who have been determined unable to manage
benefits on their own. In some cases, VA reports that
information to the NICS. As a result of that reporting, a
person may be determined to be ineligible to purchase a
firearm. (The Consolidated Appropriations Act, 2024, prohibits
the department from making such reports in the current fiscal
year.)
Under the bill, VA would be prohibited from transmitting
information to the NICS about a person solely because a
fiduciary manages their VA benefits. The department could make
such a report, however, if a judge determines that the person
poses a danger to themselves or others.
CBO estimates that implementing the bill could reduce
administrative costs by decreasing VA's reporting to the NICS.
Conversely, VA could incur additional costs for seeking
judicial determinations that a person poses a danger and should
be reported to the NICS. CBO estimates that, in either case,
the net change in spending would not be significant. Any
related spending would be subject to appropriation.
The CBO staff contact for this estimate is Logan Smith. The
estimate was reviewed by Christina Hawley Anthony, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4 is inapplicable to H.R. 705.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
705.
Applicability to Legislative Branch
The Committee finds that H.R. 705 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 705 would establish or reauthorize a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Veterans 2nd Amendment Protection Act''.
Section 2. Prohibition on Secretary of Veterans Affairs Transmittal of
certain information to the Department of Justice for use by the
National Instant Criminal Background Check System
Section 2 would amend Title 38, U.S. Code, Chapter 55, by
creating a new section 5501B that would prohibit VA from
transmitting to any entity in the Department of Justice, for
use by NICS, personally identifiable information of a
beneficiary of VA benefits for whom VA has assigned a fiduciary
to assist with their VA benefits under 38 U.S.C. Sec. 5502,
unless there is an order or finding of a judge, magistrate, or
other judicial authority, that such beneficiary is a danger to
themselves or others.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 55--MINORS, INCOMPETENTS, AND OTHER WARDS
Sec.
5501. Commitment actions.
* * * * * * *
5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national instant criminal
background check system.
* * * * * * *
Sec. 5501B. Prohibition on transmittal of certain information to the
Department of Justice for use by the national
instant criminal background check system
The Secretary may not transmit to any entity in the
Department of Justice, for use by the national instant criminal
background check system established under section 103 of the
Brady Handgun Violence Prevention Act, personally identifiable
information of a beneficiary, solely on the basis of a
determination by the Secretary to pay benefits to a fiduciary
for the use and benefit of the beneficiary under section 5502
of this title, without the order or finding of a judge,
magistrate, or other judicial authority of competent
jurisdiction that such beneficiary is a danger to themselves or
others.
* * * * * * *
MINORITY VIEWS
On May 1, 2024, the full House Committee on Veterans'
Affairs met in open markup and considered H.R. 705, the
Veterans 2nd Amendment Protection Act, introduced by Chairman
Mike Bost. The measure was ordered favorably reported to the
full House on a straight party line vote, with Committee
Democrats united in opposition. We view this measure as a
dangerous political messaging bill that perpetuates a false
narrative that seeking mental healthcare at the Department of
Veterans Affairs will lead to confiscation of a veterans'
firearms without sufficient due process protections. The
problem the bill purports to address is poorly substantiated
and its potential effects are poorly understood. The
legislation unnecessarily injects great risk of harm to the
most vulnerable beneficiaries in the Department of Veterans
Affairs' (VA) system. This is unconscionable when the rate of
death by suicide among veterans remains significantly higher
than that of the general population. Veterans also use firearms
in suicide attempts at a rate of 70%, much higher than the 50%
rate in the general population.
First, contrary to the assertions of the Majority, this
issue is not about undue deprivation of constitutional rights,
but about lowering the risk of self-harm and death by suicide
among VA beneficiaries. The Fiduciary process serves as an
adequate proxy for determination of dangerousness. There is
sufficient due process in the current system to protect rights
and appeals or requests for relief are not even highly pursued.
Veterans are already at higher risk of suicide and self-harm
because they tend to concentrate risk factors such as post-
traumatic stress disorder (PTSD), traumatic brain injury (TBI),
substance abuse disorder, and other addictive personality
traits. The result of Chairman Bost's bill will mean more guns
in more hands and more veterans will lose their life because of
it.
Second, Republicans are non-serious about addressing the
issue through sound policymaking, and are relying on emotion,
anecdote and political messaging. Significant data gaps exist--
data that would be necessary to help bridge anecdotes and
evidence related to the Fiduciary Program--this legislation
fills none of those gaps. The title alone presages partisanship
and belies the fact that this legislation is purely a messaging
bill related to the politics of guns and is not about
protecting veterans. Democrats prefer a data driven, evidence-
based policymaking process, which the Republican work on this
abandons.
Concerning the need for this bill as stated by the
Majority, the stigma around seeking mental health help for fear
of losing 2nd Amendment rights is real and deserves to be
addressed in a meaningful way. However, it is part of the
broader issue of misinformation and disinformation propagating
online and elsewhere. It is a perception issue that the
Majority and, unfortunately, many VSOs are perpetuating, both
through this bill and in their failure to denounce the rumors
as untrue. In fact, there are documented greater hurdles to
seeking care including convenience and cost.
Specifically, with respect to the adequacy of the Fiduciary
process as proxy for determining dangerousness, we know from
academic research that the population of beneficiaries assigned
a fiduciary suffers from mental health conditions that would
preclude most of the general population from owning firearms.
The most common mental health conditions among beneficiaries
with a fiduciary are as follows:
1. Schizophrenia--36.5%
2. TBI--31.2%
3. PTSD--22.3%
4. Bipolar Disorder--5.6%
5. Dementia--4.4%
Moreover, mental incompetency for fiduciary purposes is
equivalent to increased suicide risk. Veterans who scored
poorly on financial management abilities were about twice as
likely to report suicidal ideation and attempts, using illicit
drugs, engaging in violent behavior, and getting arrested,
compared to those with good management skills. Also rates of
suicidality and violence were found to be significantly
elevated in veterans who were identified as needing a
fiduciary.\1\
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\1\Swanson, J., Easter, M., Brancu, M. et al. Informing Federal
Policy on Firearm Restrictions for Veterans with Fiduciaries: Risk
Indicators in the Post-Deployment Mental Health Study. Adm Policy Ment
Health 45, 673-683 (2018). https://doi.org/10.1007/s10488-018-0881-y.
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Regarding the due process protections already built into
VA's system in compliance with the Administrative Procedures
Act (APA) and the NICS Improvement Amendments Act (NIAA),
veterans and other beneficiaries currently have significant
avenues for redress. VA notifies beneficiaries of the
consequences of their proposed determination, including NICS
reporting requirements as required by the APA and the NIAA.
They may then appeal both the determination to appoint a
fiduciary, and the subsequent reporting to NICS, independently
of one another and at several points in the process.
Beneficiaries may:
1. Request a pre-decision review of the incompetency
decision before it is finalized;
2. Appeal the determination of mental incompetency;
3. File a supplemental claim;
4. Seek a Higher-Level Review;
5. Appeal the incompetency determination to the Board
of Veterans Appeals;
6. Seek specific relief from NICS reporting, even
after the appointment of a Fiduciary.
Moreover, decisions regarding VA benefits determinations are
already able to be appealed to judicial authorities such as the
Court of Appeals for Veterans' Claims and the U.S. Court of
Appeals for the Federal Circuit. The Majority conveniently
ignores those facts when espousing their view that veterans'
constitutional rights are being abridged without due process.
We also know from VA reporting that these avenues for
appeal are not widely used. In fact, in FY 2022, the most
recent year for which there is data, there were only 135
hearings to appeal the incompetency determination, 24 of which
resulted in a competency determination. This is relative to a
universe of approximately 15,000 new determinations annually.
Also in FY 2022, VA received only 33 relief requests, and
granted none. However, in response to these requests, 11
beneficiaries were determined to be competent and were removed
from NICS.\2\
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\2\Department of Veterans Affairs, Response to House Veterans
Affairs Committee--Minority Request for Information, April 20, 2023.
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Additionally, it has been asserted that veterans are
unfairly being singled out for inclusion in the NICS database,
given that VA beneficiaries represent a large proportion of
those reported to NICS by federal entities. It should be noted
that of the approximately 28.4 million active entries in the
FBI's NICS database, roughly 14.6 million of those were
submitted by federal agencies. And of that 14.6 million, the
vast majority (12.5 million), are unlawful aliens submitted to
the database by the Department of Homeland Security. Veterans
only make up the largest percentage of those reported to NICS
by federal agencies in the category of Adjudicated Mental
Health (261,000). So again, the Majority is continuing to
perpetuate the myth that somehow veterans are being unduly
burdened by this NICS reporting, when the reality is that
beneficiaries reported to NICS only constitute only 1.8% of
federal reporting and 0.9% of all entries in total database.\3\
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\3\Department of Justice, Federal Bureau of Investigation, Criminal
Justice Information Services Division, Active Entries in the NICS
Indices as of January 3, 2023. https://www.fbi.gov/file-repository/
active-entries-in-the-nics-indices-by-state.pdf/view.
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As previously mentioned, there are a large number of
unknowns surrounding the Fiduciary Program and its relation to
long-term health outcomes. For example:
1. There is very limited information publicly
available about the population of veterans deemed to be
financially incompetent who have historically been
reported to the NICS, and whether they, on average,
have elevated rates of suicidality or violence;
2. There is no data on the desire of beneficiaries in
the Fiduciary Program to purchase or own firearms;
3. There is no data on why beneficiaries are failing
to utilize the due process afforded them in the system
already;
4. There is no data on whether a fear of losing 2nd
Amendment rights is the major impediment to seeking
help, or if other factors are more important.
The response to these unknowns should note be to remove
safeguards which may lead to harm, but to gather information
that informs policymaking. H.R. 705 fills none of these data
gaps. Nor was any of this information gathered prior to this
bill's development and introduction.
Accordingly, during the full Committee markup on this
measure Committee Democrats offered numerous germane amendments
to address all these data insufficiencies. All were summarily
rejected on party line votes. Democratic Members offered the
following amendments to H.R. 705:
1. Rep. Takano Substitute: Would strike the
underlying bill and replace it with language stating
that VA cannot report beneficiaries to NICS until
obtaining a secondary mental health determination. The
amendment would also require VA to update its Lethal
Means Safety and Suicide Prevention training and expand
the universe of who must take such training.
2. Rep. Brownley Amendment: Would amend the bill to
require a VA study, in conjunction with the Substance
Abuse and Mental Health Services Administration, of the
fiduciary population regarding long-term mental health
outcomes, ``dangerousness'' and suicidal ideation. One
of the many unknowns in this debate is that we do not
have good information regarding long-term mental health
outcomes of those assigned a fiduciary by VA. This
information is especially important as we know veterans
are at increased risk of self-harm, a risk that only
rises with the presence of exacerbating mental health
conditions, like those found in the fiduciary
population.
3. Rep. Budzinski Amendment: Would amend the bill to
instruct VA to conduct a study to determine factors
contributing to stigma around seeking mental healthcare
at VA and identify other barriers to seeking care. The
amendment would then mandate VA create and conduct an
outreach campaign to counter that stigma.
4. Rep. McGarvey Amendment: Would amend the bill to
specify which court VA should seek an order from,
namely the Court of Appeals for Veterans Claims. The
underlying bill is silent on this issue, creating
uncertainty for VA. The amendment would also instruct
the CAVC to create an expedited channel for
consideration of such requests. The CAVC is independent
of VA and has expertise in veterans' law and in
interpreting the medical evidence associated with a
veterans' claim. Additionally, given the elevated risk
of self-harm among this population, CAVC establishing a
fast lane for consideration of these judicial orders
would allow VA to quickly establish additional
protections for beneficiaries if warranted.
5. Rep. Ramirez Amendment: Would amend the bill to
require VA to partner with an academic institution to
conduct a study on impediments to VA utilizing/
obtaining extreme risk protection orders (ERPO). VA's
NICS reporting in compliance with the Brady Act is
fundamentally about preventing harm, either to the
veteran or survivor themselves, or to those around
them. Unfortunately, this bill ties VA's hands and
prevents them from doing so to the best of their
ability. As such, VA must explore other avenues to
prevent the kind of harm injected into this system by
this bill. One of the methods VA should explore is
ERPOs, which have shown to be successful in many
locations at preventing suicide and violence.
6. Rep. Ramirez Amendment #2: Would amend the bill to
instruct the Government Accountability Office to
conduct a study on the accuracy and consistency with
which contract Compensation and Pension examiners are
filling out the mental competency section of Disability
Benefits Questionnaires (DBQ). The study should:
a. Evaluate the training specific to those
sections offered by Medical Disability Exam
Office;
b. Identify and evaluate any follow on
training the contractor is offering their
providers; and
c. Identify and evaluate what specific
training claims processors are given related to
examining medical evidence for competency
determinations.
One of the arguments made as to the necessity of the
underlying bill, is that the DBQ is an inadequate
measure of a veterans' ability to manage their own
affairs because of mental illness or otherwise, and
that the contractors or Veterans Health Administration
employees filling out that section have reduced it to a
box checking activity. While we disagree with that
characterization, the reality is that no independent
analysis has been conducted specifically on the
accuracy of those sections.
7. Rep. Levin Amendment: Would amend the bill to
instruct VA to conduct a study to determine why
beneficiaries are choosing not to avail themselves of
the current avenues for appeal and relief from NICS
reporting. The current avenues for administrative
relief from both the assignment of a fiduciary and
reporting to NICS are not widely used. What is not
known, is why. Are beneficiaries not appealing because
they don't know they can, feel as though it is futile,
or simply don't care? This amendment would require VA
to discern those reasons.
8. Rep. Deluzio Amendment: Would amend the bill to
establish a new grant program for veterans' legal
clinics at institutions of higher learning expressly
for the purposes of representing veterans in fiduciary
related proceedings and authorize $10mil/year for 5
years in order to carry out this program. Under the
regime created by H.R. 705, VA would be forced to take
veterans to court in order to obtain a judicial order
if they wish to report that veteran to NICS. It is
unclear if VA would do this, however if they do,
veterans will inevitably require assistance in
defending themselves against VA. In order to prevent
bad actors from occupying that space at great cost to
the veteran, a space which veterans service
organizations also aren't occupying, this amendment
proposes expanding support for veterans' legal clinics
in order to bolster free services for veterans.
9. Rep. Mrvan Amendment: Would amend the bill to
state that it shall not take effect until the Secretary
of Veterans' Affairs certifies to Congress that it will
not lead to an increase in death by suicide using a
firearm among those assigned a fiduciary. H.R. 705
injects a great deal of risk into the system, including
the risk of increased death by suicide among veterans
and other beneficiaries. At the very least, we must be
sure that this bill will not lead to increased veteran
suicide before it takes effect.
10. Rep. Cherfilus-McCormick Amendment: Would amend
the bill to allow for continued reporting for most
serious mental health conditions. These are:
a. Schizophrenia
b. TBI
c. PTSD
d. Bipolar Disorder
e. Dementia
We know that H.R. 705 has the potential to put more
guns in the hands of the most vulnerable beneficiaries
in VA's system. At the very least, we must continue to
protect those with the most serious mental impairments,
by continuing their reporting to NICS.
11. Rep. Landsman Amendment: Would amend the bill to
require VA to partner with the Department of Justice to
determine how many veterans have attempted to buy a
firearm but were denied because of fiduciary-related
NICS reporting, and how many have had already owned
firearms confiscated by state or federal authorities.
Anecdotally, the Majority has said that there are great
numbers of veterans who have been prevented from buying
firearms based on the assignment of a fiduciary by VA,
and that others are having their firearms confiscated
for the same reason. The reality is that we have
absolutely no evidence that this is the case. As such,
we need to gather evidence to see if the problem the
Majority is trying to fix actually exists before
proceeding with this legislation.
For these reasons and more, Committee Democrats must
continue to oppose this legislation. We will recommend the
broader House reject the measure should it come to the floor of
the full House for consideration.
Mark Takano,
Ranking Member.
[all]