Most States Have Made Limited Progress in Providing Mental Health Records and Could Benefit from DOJ Sharing Promising Practices

States increased the number of mental health records available for use  during NICS background checks from 200,000 in October 2004 to 1.2  million in October 2011, but this progress largely reflects the efforts of 12  states, and most states have made little or no progress in providing these   DOJ and state officials identified technological, legal, and other  records.challenges that hinder states’ ability to make these records available. DOJ has  begun to have states share their promising practices during regional  meetings, but DOJ has not shared these practices nationally. Mental Health Records Have Increased since NIAA Enactment, but Progress Largely Reflects Efforts of 12 States

The total number of mental health records that states made available to  the NICS Index increased by approximately 800 percent—from about  126,000 records in October 2004 to about 1.2 million records in October   As shown in figure 1, there was a marked  2011—according to FBI data.increase in the number of mental health records made available by states  since 2008, when the NIAA was enacted. On the  other hand, during this same time period, almost half of the states  increased the number of mental health records they made available by  less than 100 records. DOJ has issued guidance related to the unlawful drug use  records that are noncriminal, but states in our sample raised concerns  about providing these kinds of records. According to NICS Section officials, the majority  of unlawful drug use records that states make available for NICS checks  are criminal records—such as those containing convictions for use or  possession of a controlled substance—and are made available to NICS  through the III. For example, officials from 4 of the 6  states in our sample reported that they were uncomfortable with the  amount of judgment law enforcement officials were being asked to make  outside of an official court decision regarding an individual’s potentially  prohibited status. Although BJS has not finished analyzing the third  year of state record estimates, the officials said they did not know if the  state record estimates, as currently collected, would ever reach the level  of precision that would be needed to administer the NIAA reward and  penalty provisions. Sample States Had Mixed Views on whether Rewards and Penalties Provide Incentives to Submit More Records

Officials from the 6 states in our sample provided mixed views on the  extent to which the NIAA reward and penalty provisions, if implemented  as currently structured, would provide incentives for their states to make  more records available for NICS checks. The NIAA reward and penalty provisions  are intended to provide incentives for states to make more records  available to NICS, but the provisions—as currently structured—might not  provide the incentives that were envisioned by the act. Nineteen States Allow Individuals to Seek Relief from Their Firearms Prohibition, Making These States Eligible for Grant Funding

From January 2009 through June 2012, ATF certified programs in 19  states that allow individuals with a precluding mental health adjudication  or commitment to seek relief from the associated federal firearms  prohibition, thus making these states eligible to receive NARIP grant  funding. Three of the 6 states we reviewed did not have a certified relief from  disabilities program. Officials from 6 of the 16 states that had ATF-approved relief from  disabilities programs as of May 2012 noted that managing the competing  interests of advocacy groups was a challenge. To help ensure that incentives exist for states to make records  available for use during NICS background checks and that DOJ has a  sound basis upon which to base incentives, determine (1) if the NIAA  reward and penalty provisions, if they were to be implemented, are  likely to act as incentives for states to share more records, and (2) if,  given limitations in current state estimates, whether DOJ can develop  a revised estimate methodology whereby states are able to generate  reliable estimates as a basis for DOJ to administer the NIAA reward  and penalty provisions. Appendix I: Objectives, Scope, and Methodology

We assessed the progress the Department of Justice (DOJ) and states  have made in implementing key provisions of the National Instant  Criminal Background Check System (NICS) Improvement Amendments  Act of 2007 (NIAA). Namely, the extent to which  states have made progress in making mental health records available  for use during NICS background checks and DOJ could take actions  to help states overcome challenges in providing these records,  states have made progress in making unlawful drug use records  available for use during NICS background checks and DOJ could take  actions to help states overcome challenges in providing these  records,
DOJ has administered the reward and penalty provisions provided for  in the act and whether selected states report that these provisions  provide incentives to make records available to the Federal Bureau of  Investigation (FBI), and  states are providing a means for individuals with a precluding mental  health adjudication or commitment to seek relief from the associated  federal firearm prohibition. Further, we interviewed officials from a nonprobability sample of 6 states  to discuss any challenges they faced in sharing mental health and  unlawful drug use records and their experiences with DOJ assistance  received to address those challenges.
Why GAO Did This Study

The 2007 Virginia Tech shootings raised questions about how the gunman was able to obtain firearms given his history of mental illness. In the wake of this tragedy, the NICS Improvement Amendments Act of 2007 was enacted to, among other things, provide incentives for states to make more records available for use during firearm-related background checks. GAO was asked to assess the extent to which (1) states have made progress in making mental health records available for use during NICS checks and related challenges, (2) states have made progress in making unlawful drug records available and related challenges, (3) DOJ is administering provisions in the act to reward and penalize states based on the amount of records they provide, and (4) states are providing a means for individuals with a precluding mental health adjudication or commitment to seek relief from the associated federal firearms prohibition. GAO reviewed laws and regulations, analyzed Federal Bureau of Investigation data from 2004 to 2011 on mental health and unlawful drug use records, interviewed officials from a nongeneralizable sample of 6 states (selected because they provided varying numbers of records) to obtain insights on challenges, and interviewed officials from all 16 states that had legislation as of May 2012 that allows individuals to seek relief from their federal firearms prohibition.

What GAO Found

From 2004 to 2011, the total number of mental health records that states made available to the National Instant Criminal Background Check System (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. This increase largely reflects the efforts of 12 states. However, almost half of all states increased the number of mental health records they made available by fewer than 100 over this same time period. Technological, legal, and other challenges limited the states’ ability to share mental health records. To help address these challenges, the Department of Justice (DOJ) provides assistance to states, such as grants and training, which the 6 states GAO reviewed reported as helpful. DOJ has begun to have states share their promising practices at conferences, but has not distributed such practices nationally. By disseminating practices that states used to overcome barriers to sharing mental health records, DOJ could further assist states efforts.
The states’ overall progress in making unlawful drug use records available to NICS is generally unknown because of how these records are maintained. The vast majority of records made available are criminal records—such as those containing arrests or convictions for possession of a controlled substance—which cannot readily be disaggregated from other records in the databases checked by NICS. Most states are not providing noncriminal records, such as those related to positive drug test results for persons on probation. On May 1, 2012, DOJ data showed that 30 states were not making any noncriminal records available. Four of the 6 states GAO reviewed raised concerns about providing records outside an official court decision. Two states also noted that they did not have centralized databases that would be needed to collect these records. DOJ has issued guidance for providing noncriminal records to NICS.
DOJ has not administered the reward and penalty provisions of the NICS Improvement Amendments Act of 2007 because of limitations in state estimates of the number of records they possess that could be made available to NICS. DOJ officials were unsure if the estimates, as currently collected, could reach the level of precision needed to serve as the basis for implementing the provisions. The 6 states GAO reviewed had mixed views on the extent to which the reward and penalty provisions—if implemented as currently structured—would provide incentives for them to make more records available. DOJ had not obtained the states’ views. Until DOJ establishes a basis for administering these provisions—which could include revising its current methodology for collecting estimates or developing a new basis—and determining the extent to which the current provisions provide incentives to states, the department cannot provide the incentives to states that were envisioned by the act.
Nineteen states have received federal certification of their programs that allow individuals with a precluding mental health adjudication or commitment to seek relief from the associated firearms prohibition. Having such a program is required to receive grants under the 2007 NICS act. Officials from 10 of the 16 states we contacted said that grant eligibility was a strong incentive for developing the program. Reductions in grant funding could affect incentives moving forward.

What GAO Recommends

GAO recommends that DOJ share promising practices in making mental health records available and assess the effectiveness of rewards and penalties and how to best implement them. DOJ agreed with the results.