Proposed rule would ease HIPAA to strengthen gun background checks

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The U.S. Department of Health & Human Services' Office for Civil Rights (OCR) has issued a proposed rule to ease HIPAA regulations preventing states from reporting to a database of people prohibited from owning guns for mental health reasons. The Department of Justice (DOJ) has also released a proposal to clarify the definitions used.

The new HHS rule would amend HIPAA "to expressly permit certain HIPAA-covered entities to disclose to the National Instant Criminal Background System the identities of individuals who are subject to a federal 'mental health prohibitor' that disqualifies them from shipping, transporting, possessing or receiving a firearm."

The federal mental health prohibitor applies to those who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission or other lawful authority to be a danger to themselves or others.

President Obama's gun control plan issued after the shootings at Sandy Hook Elementary School in Newtown, Conn. last December included removing barriers to instant background checks for those seeking to purchase guns. Fifteen states have each submitted fewer than 100 mental health records to the National Instant Criminal Background Check System, which is used for background checks on potential gun buyers, according to a report from the Mayors Against Illegal Guns coalition.

In a notice of proposed rulemaking in April, the OCR sought comments on how to address these barriers while protecting patient privacy. The American Medical Association and a handful of other organizations expressed concern that it could prevent people from seeking mental health treatment.

The HHS rule states that the database would not include medical records, or any mental health information beyond the indication that the individual is subject to the federal mental health prohibitor.

OCR Director Leon Rodriguez said in April that the database is not and will not become a mental health registry.

"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, denied, or additional investigation is needed. The dealer does not receive any information about why an individual is denied and does not ever have access to any records of potential buyers, including health records," he said.

The HHS rule is to be published in the Federal Register tomorrow, followed with a 90-day comment period.

To learn more:
- read the proposed OCR rule (.pdf)
- here's the proposed DOJ rule (.pdf)

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