VA reporting requirement draws conservative backlash

Seventeen veterans die by suicide every day. Twelve of those 17 are from a self-inflicted firearm injury. The U.S. Department of Veterans Affairs says those numbers underscore the agency’s continued obligation and commitment to reduce self-harm by its members.

But on Tuesday, the U.S. House Committee on Veterans’ Affairs was focused on H.R. 705, the Veterans 2nd Amendment Protection Act.

The bill would prohibit the VA from sending information on veterans who are assisted by a fiduciary to the FBI’s National Instant Criminal Background Check System (NICS) unless there is first a determination by a judge or a court that that person could be a harm to themselves or others.

NICS is the federal agency that verifies a potential gun buyer doesn’t have a criminal background or may otherwise be ineligible to buy a firearm.

Rep. Mike Bost (R-Ill.), chair of the House Veterans Affairs Committee, said the VA’s appointment of a fiduciary to a veteran or a VA beneficiary to help them manage their benefits does not indicate the person is dangerous or mentally ill.

“Hundreds of thousands of Americans, including veterans, have fiduciaries,” Bost said. “But when it comes to our veterans, the minute a VA appoints a fiduciary, that veteran’s name is automatically sent to NICS. The veteran is now prohibited from purchasing a firearm based on the decisions of the VA employees, not a court’s finding.”

Ron Burke, Deputy Under Secretary for U.S. Department of Veterans Affairs, said while the VA appreciates the focus on due process rights, it must oppose Bost’s bill because it would conflict with existing statutory reporting requirements of the Brady Handgun Violence Prevention Act.

“In accordance with ATF regulations and DOJ guidance, VA reports all individuals determined to unable to manage their VA benefit funds,” testified Burke. “Such a determination must be based on definitive medical evidence that is clear, convincing, and leaves no doubt.”

When notifying the veteran of the determination, the VA also provides information on how to request relief from Brady Act restrictions, Burke said.

“Scientific research shows that mental health is one clear risk factor for suicide, and use of a firearm in a suicide attempt significantly reduces the chance of survival,” Burke advised the committee.

There were 6,146 veteran suicides in 2020, according to the 2022 the National Veteran Suicide Prevention Annual Report.

Bost believes the VA’s reporting requirement may actually prevent some veterans from seeking mental health care.

“Simply complying with federal law.”

The VA policy also did not sit well with Congressman Greg Murphy, a Republican from North Carolina’s third congressional district.

“I was determined to be my mom’s fiduciary when she got older and just couldn’t handle her financial matters,” said Murphy, a co-sponsor of H.R. 705. “So, if she were a veteran — wow, that would put her in a different category of an assumption of incompetence.”

As a trauma surgeon, Murphy said he understands the problems that can arise when people with suicidal ideations have access to guns, but there must be factual evidence that the reporting to NICS is going to save a life.

“Are you aware that there’s a very, very good program especially in my part of eastern North Carolina where we take veterans out and it’s hunting for veterans, to help them with PTSD?” Murphy asked.

“Yes, sir.”

“So how would if then if somebody has PTSD, how would they be able to participate in that program?”

“The mere diagnosis of a mental condition is not a bar to owning a firearm,” explained Burke again. “There are different levels of severity with post-traumatic stress disorder and other mental conditions. It’s only at the point where the medical evidence clearly and convincingly shows that the individual is unable to manage their funds independently that we refer to NICS.”

Murphy was still not happy.

“I was my mom’s fiduciary [and] managing funds and having suicidal ideations are two absolute different things, absolutely. The one is simple. Basically, you can’t handle your affairs and the other thing is you want to kill yourself. You cannot make those equivalent, not by any means.”

The VA’s deputy under secretary gently pushed back.

“Simply complying with federal law. We have a requirement by law to submit those to NICS, and that that is the crux of this conversation.”

“So, is there any evidence that requiring a fiduciary has decreased suicide attempts?” pressed Murphy.

“The fiduciary program was not set up or established to remove access to weapons. It’s a byproduct of the requirement in the Brady Act. With respect to science and research, there is research that shows that limiting access to firearms does help us in preventing suicides,” Burke answered.

A challenging policy dilemma

Jeffrey Swanson, a professor of psychiatry and behavioral sciences from Duke University’s School of Medicine, told the panel that it’s a challenging policy dilemma as they consider the proposed Veteran 2nd Amendment Protection Act.

Swanson, who did not offer an opinion on the legislation, said a 2018 peer-reviewed research study by his colleagues of 3,200 post-deployment veterans from the Iraq and Afghanistan war might offer some guidance.

“Our research provided evidence consistent with a public-safety rationale for the policy of separating firearms from veterans found mentally incompetent to manage their VA benefits and assigned a fiduciary,” said Swanson.

Swanson continued: “No firearm restriction policy is perfect and there will always be errors made in its application to individuals. False positives and false negatives. Is it better for the law to err on the side of preserving the Second Amendment right for more veterans even if it means that some will die preventable deaths? Or is it better to err on the side of saving more lives at the cost of restricting the gun rights of some veterans who would not have died by suicide?”

Wherever the lines are drawn, Swanson believes there must be due process protections and broad opportunities for appeal.

“On that score, the current policy might be seen as a work in progress,” Swanson offered. “It could be improved.”

Swanson said when the VA found his own father to be in cognitive decline and incompetent to manage his VA benefit, his name was sent to NICS.

While he was never determined in a legal proceeding to be a specific danger to himself or others, Swanson understood why he would legally be disqualified from accessing firearms from that point on.

“Last October, my father passed away peacefully of natural causes. I proudly display in my home office the flag that I received from the U.S. Government in his honor ‘on behalf of a grateful nation.’ I miss him still.”

Rep. Mark Takano (D-CA), the House Veterans Affairs Committee ranking member, said more evidence and a direct study of the individuals assigned fiduciaries would be beneficial.

“Would it not be more prudent to wait until we had additional information before plowing forward with the reforms my colleagues are proposing in the bill we’re considering today?” Takano asked Professor Swanson.

“I think so. It seems unwise to me to simply scrap the reporting policy. It’s been in place for decades without having something better to put in its place,” said Swanson.

Rep. Bost noted that in 2022, 14,158 vets were ruled incompetent and had their names turned over to NICS. Upon appeal, 12 were reversed.

“It is a legitimate issue,” Bost insisted.

Takano said if the legislation should pass the House, it would most certainly die in the Senate.

“There is absolutely room for compromise on this issue, but it involves inclusion of things like lethal means training and safe storage and handling, common sense ideas that are actually proven to prevent suicide,” offered Takano.

“Sadly, I fear that my Republican colleagues would rather use this as a messaging bill to score cheap political points.”