HHS Proposed HIPAA Privacy Rule Linked With Gun Control

Published Monday, May 20, 2013

The Department of Health and Human Services (HHS) issued a proposed rule on the Health Insurance Portability and Accountability Act (HIPPA) privacy rule and the National Instant Criminal Background Check System (NICS) to remove barriers to firearm background check reporting and ensure that consumers receive access to mental health services, a move also aimed at addressing the issue of gun control. The proposed rules were published in the April 23 Federal Register. The public comment period ends on June 7.

HIPAA establishes national standards to protect individuals’ medical records and other personal health information. NICS is the database that houses information on individuals prohibited by law from possessing firearms. A 2012 Government Accountability Office (GAO) report showed that 17 states had submitted fewer than ten records of individuals prohibited for mental health reasons, according to a statement from HHS.

According to the proposed rulemaking notice, concerns have been raised that, in certain states, HIPAA may be a barrier to states’ reporting the identities of individuals in the mental health prohibitor category in the NICS. The prohibitor category refers to individuals who have been involuntarily committed to a mental health institution, have been found incompetent to stand trial or not guilty by reason of insanity or otherwise have been determined through an adjudication process to have a severe mental condition resulting in the individuals presenting a danger to themselves or others or being unable to manage their own affairs.

Some of the questions asked in the proposed rule are:

  • Has your state designated one or more agencies as state repositories for information about the identities of individuals who are subject to the mental health prohibitor? If so, please identify the agencies and specify, for each such agency, whether it is a HIPAA covered entity.
  • If the HIPAA Privacy Rule were to be amended to expressly permit disclosures of the identities of individuals covered by the mental health prohibitor to the NICS, would you still face any barriers to reporting? If so, what are they?
  • Are there ways that HHS may address or mitigate any unintended adverse consequences, for individuals seeking needed mental health services that may be caused by creating express regulatory permission to report relevant information to the NICS?
  • Are there any additional guidance materials and/or training from HHS on particular aspects of the Privacy Rule that would be helpful to address any confusion regarding HIPAA requirements and help improve NICS reporting?

According to the proposed rulemaking notice, the NICS index does not contain medical or mental health records. If an individual is prohibited from purchasing a firearm due to specific mental health reasons as set by law, the following information is submitted to the NICS: (1) basic identifying information about the individual, such as name, social security number, and date of birth; (2) the name of the state or federal agency that submitted the information; (3) a notation on which of the ten prohibited categories is applicable to the individual, which allows the individual to appeal and seek to correct incomplete or inaccurate information if needed.

When federally licensed firearms dealers request a NICS background check for a potential buyer, the only information they get back is that the potential buyer is approved or denied, or additional investigation is needed, according to the notice.