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