HHS modifies HIPAA to strengthen the firearm background check system

CMS announced in a blog post that HHS has modified HIPAA to strengthen the firearm background check system.

Today the Department of Health and Human Services (HHS) moved forward on commitments made by President Obama to curb gun violence across the nation. Specifically, we have modified the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to expressly permit certain covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of those individuals who, for mental health reasons, already are prohibited by Federal law from having a firearm.

Due to a history of under-reporting, the NICS has lacked complete information about all individuals who are prohibited by Federal law from possessing or receiving a firearm. The modification announced today better enables the reporting of the identities of prohibited individuals to the background check system and is an important step toward improving the public’s safety while continuing to strongly protect individuals’ privacy interests.

Specifically, this final rule gives States improved flexibility to ensure accurate but limited information is reported to the NICS. The rulemaking makes clear that, under the Privacy Rule, certain covered entities are permitted to disclose limited information to the NICS. The information that can be disclosed is the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.

It should be noted that this change only impacts a small subset of HIPAA Covered Entities

The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment. This rule applies only to a small subset of HIPAA covered entities that either make the mental health determinations that disqualify individuals from having a firearm or are designated by their States to report this information to NICS – and it allows such entities to report only limited identifying, non-clinical information to the NICS.