The U.S. Department of Health and Human Services (HHS) issued on April 19 an advance notice of proposed rulemaking (ANPRM) regarding HIPAA and the National Instant Criminal Background Check System (NICS).  This action is based on one of the executive actions in President Obama’s plan to reduce gun violence, which was released in January 2013.

As we previously reported, one of the 23 executive actions in the President’s gun plan is to address unnecessary legal barriers under HIPAA that may prevent States from reporting information to the NICS.  The NICS is the federal government’s background check system for the sale or transfer of firearms by licensed dealers. 

Under federal law, certain persons are disqualified from possessing or receiving firearms, including individuals who have been:

• Involuntarily committed to a mental institution;
• Found incompetent to stand trial or not guilty by reason of insanity;
• Otherwise determined, through a formal adjudication process, to have a severe mental condition that results in the individual’s presenting a danger to themselves or others or being incapable of managing their own affairs.

This is known as the “mental health prohibitor.” 

As HHS describes in the ANPRM, to the extent the state agency creating or maintaining the record of an involuntary commitment or mental health adjudication is a HIPAA-covered entity, those records are subject to the HIPAA Privacy Rule. However, the Privacy Rule permits reporting to the NICS where, for example, the State has enacted a law requiring such reporting; or where the agency has designated itself as a “hybrid entity” and reports prohibitor information through its non-HIPAA covered NICS reporting unit. Nevertheless, HHS reports that many States still are not reporting mental health prohibitor information to the NICS.

In the ANPRM, HHS is seeking public comments on the barriers under HIPAA to States’ reporting mental health prohibitor information to the NICS, and the  ways in which those barriers can be addressed.  HHS is considering whether to revise the HIPAA Privacy Rule to expressly permit disclosure of such information to the NICS. 

HHS is also soliciting public comment on a number of specific issues, including:

• The best methods to disseminate information to States on HIPAA Privacy Rule policies as they relate to NICS reporting;
• Whether there are privacy protections in place for data collected by State entities for reporting to the NICS–and whether any State public records laws would make this data publicly available or prohibit its reporting; and
• Whether there are implications for mental health treatment in having mental health prohibitor information reported by health care entities that perform both adjudication and treatment functions.

In the press release accompanying the ANPRM, HHS emphasizes that the “NICS is not a mental health registry and this rulemaking process will not create a mental health registry.”  The NICS will include basic identifying information about the individual, the name of the state or federal agency submitting the information, and a notation of which of the ten “prohibitors” applies to the individual.  Federally licensed firearms dealers requesting an NICS background check are informed only whether the individual is approved, denied, or additional information is needed–they do not receive any information about why the individual is denied.