National Instant Criminal Background Check System

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On January 6, as part of President Obama’s executive action to combat gun violence, HHS promulgated a final regulation modifying the HIPAA Privacy Rule to allow certain HIPAA covered entities to disclose limited information to the National Instant Criminal Background Check System (NICS).  We previously discussed the proposed rule here.

Background:  The NICS, maintained by the Federal Bureau of Investigation (FBI), is the national database used to conduct background checks on persons who may be disqualified from receiving firearms based on federal or state law.  Federal law identifies several categories of potential disqualifiers, known as “prohibitors” including a federal mental health prohibitor.  By statute, the federal mental health prohibitor applies to individuals who have been committed to a mental institution or adjudicated as a mental defective.  The Department of Justice has promulgated regulations that defines these categories to include the following individuals:

  • individuals committed to a mental institution for reasons such as mental illness or drug use;
  • individuals found incompetent to stand trial or not guilty by reason of insanity, or
  • individuals who have been otherwise determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.

However, there is currently no federal law that requires state agencies to report data to the NICS, including the identity of individuals who are subject to the mental health prohibitor.  HHS believes that HIPAA poses a potential barrier to such reporting. Under current law, HIPAA only permits covered entities (e.g., state mental health agencies) to disclose such information to the NICS in limited circumstances: when the entity is a “hybrid” entity under HIPAA (and the Privacy Rule does not apply to these functions) or when state law otherwise requires disclosure, and thus disclosure is permitted under HIPAA’s “required by law” category.
Continue Reading HHS Issues Final Rule on HIPAA and Firearm Background Check Reporting

By Anna Kraus

On January 7, 2014, the Department of Health and Human Services (HHS) published a notice of proposed rulemaking to modify the HIPAA Privacy Rule to expressly allow certain disclosures to the National Instant Criminal Background Check System (NICS).  As we previously reported, this was one of the executive actions in President Obama’s plan to reduce gun violence, which was released in January 2013.

Background:  The NICS is the federal government’s system for conducting background checks on individuals who may be disqualified from receiving firearms under federal law (i.e., subject to a federal “mental health prohibitor”).  This includes individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or 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.

In April 2013, HHS released an advance notice of proposed rulemaking (ANPRM) requesting public comment on whether HIPAA creates a barrier to States reporting mental health prohibitor information to the NICS.  (See our previous post on the ANRPM here.)  After receiving over 2,050 comments in response to the ANPRM, HHS elected to proceed with creating an express permission in the HIPAA Privacy Rule for NICS reporting.…

Continue Reading HHS Issues Proposed Rule on HIPAA and Firearm Background Check Reporting

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.” …

Continue Reading HHS Issues Advance Notice of Proposed Rulemaking on HIPAA and Firearm Background Check Reporting