Transportation, Housing and Urban Development, and Related Agencies

Floor Speech

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, on Tuesday, Senator Grassley came to the floor advocating for an amendment. His amendment dealt with access to guns for those who have been determined by the Department of Veterans Affairs to be mentally incompetent due to injury or disease.

Senator Grassley's amendment was 10 lines long. It would simply cut off funds for the VA to ``treat'' any person who the VA has determined to be mentally incompetent under its current administrative process as a prohibited gun purchaser under Federal firearms laws.

I pointed out that Senator Grassley's amendment would likely require purging the NICS background check database of thousands of records of people who have already been diagnosed with serious mental illness and referred to NICS by the VA.

As Senator Grassley no doubt knows, current law requires a Federal agency that submits a record to NICS to notify the Attorney General if the basis upon which the record was submitted to NICS no longer applies. The Attorney General is then obligated to remove the record from NICS within thirty days.

If the Grassley amendment were to pass and prohibit the VA from continuing to ``treat'' a mentally incompetent person as a prohibited gun purchaser, then it casts into doubt the basis upon which tens of thousands of NICS mental health records were submitted.

So Senator Grassley's amendment would likely purge those records from NICS. Tens of thousands of people with serious mental illnesses would become able to buy guns.

Senator Grassley came to the floor earlier this afternoon to criticize my objection. He made two main points that I want to respond to.

First, he said that Democrats were being hypocritical for not allowing a vote on this issue.

Senator Grassley must have only started paying attention to this issue recently. I can remember at least three votes we have had on the Senate floor on this issue.

In April 2013, when the Senate was under Democratic control, an amendment offered by Senator Burr that was very similar to Senator Grassley's amendment was voted upon and failed to pass.

An alternative and more sensible proposal for addressing the issue of VA referrals to the NICS database was included in the Manchin-Toomey legislation which the Senate voted upon in April 2013 and again last December.

In contrast to the Burr and Grassley amendments, which specified no process for reviewing the thousands of VA mental health referrals that have already been made to NICS, the Manchin-Toomey amendment set up a notification, review, and appeal process. It wasn't perfect, but it was very credible process, and I voted for it.

That is how we should be approaching this issue, with thoughtful authorizing legislation, not 10-line appropriations riders that are airdropped in on the Senate floor.

Second, Senator Grassley said that the VA has been depriving veterans of their constitutional rights willy-nilly.

I would urge Senator Grassley to look at the actual process the VA undertakes.

In connection with an award of veterans benefits, the VA formally may determine as ``mentally incompetent'' 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.''

The types of mental disorders that qualify as ``injury or disease `` for this purpose are set forth in 38 C.F.R. 4.130 and include diseases such as schizophrenia, dementia, panic disorder, post-traumatic stress disorder, and bipolar disorders, among others. Such illness or disease must be responsible for a person's inability to manage his or her own affairs for a VA determination of incompetency.

Like all VA benefit determinations, incompetency determinations are governed by clearly defined procedures to ensure due process.

Where the VA becomes aware that a veteran may be unable to manage his or her affairs, an incompetency rating is proposed and the individual in question is provided with notice and the opportunity to submit evidence and appear before a VA hearing officer. Determinations are based on all evidence of record. Unless the medical evidence is clear, convincing, and leaves no doubt as to the person's incompetency, no determination is made. Reasonable doubt is resolved in favor of competency.

All VA determinations of incompetency may be appealed within the VA's administrative appeals process, which includes the opportunity to seek review by the Board of Veterans' Appeals. Final BVA decisions may be appealed to the independent United States Court of Appeals for Veterans Claims.

Here is the bottom line: All of us respect our veterans, but we know that gun access by those with serious mental illness increases the risk of suicide and violence, and the VA has identified tens of thousands of people with serious mental illness.

We can work on a reasonable process, like the Manchin-Toomey legislation proposed, to make sure that the VA is not submitting mental health records inappropriately, but simply invalidating all the records that the VA has supplied to the background check database is irresponsible and dangerous.

BREAK IN TRANSCRIPT

Source