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.