With HIPAA change, HHS hopes to facilitate gun background checks

Agency released notice of proposed rulemaking last week

HHS last week published a notice of proposed rulemaking aimed at easing some of the legal barriers under the 1996 Health Insurance Portability and Accountability Act (HIPAA) that states say prevent them from reporting certain medical data to the federal gun-purchase background check database.

The notice follows through on one of 23 executive actions President Obama announced in the wake of the mass shooting in Newtown, Conn. It also comes after a bipartisan amendment to gun-control legislation that would have reauthorized and expanded federal mental health care, research, and education programs failed last week.

The National Instant Criminal Background Check System (NICS) is used by gun dealers to ensure they are not selling weapons to individuals who are prohibited from owning firearms, such as individuals with substance use disorders and those with severe mental health issues.

According to The Hill's "RegWatch," many states have declined to release certain information to the NICS, citing prohibitions under HIPAA. Although HIPAA states that hospitals and agencies are allowed to disclose data when it is required by law, a 2012 Government Accountability Office report found that some states did not have explicit laws requiring state agencies to share patients' mental health data. Further, the report showed 17 states had submitted fewer than 10 records of individuals barred from owning firearms for mental health reasons.

The rule-making notice stated that HHS is seeking public comment on how HIPAA is preventing states from sharing such records and how the legal barriers could be addressed "without discouraging individuals from seeking mental health services."

In addition, the notice indicated that HHS is considering enacting "an express permission in the HIPAA rules for reporting the relevant information to the NICS." The department also stressed that information provided to gun dealers by the database does not contain any personal health information—they are only notified whether the prospective buyer is approved or denied.

HHS Secretary Kathleen Sebelius said, "In order to protect our children and communities, we must ensure that information on potentially dangerous individuals who are prohibited from possessing firearms is available to the background check system." She added, "We do not want to discourage individuals who need help from seeking mental health services, and our actions will be carefully tailored to ensure patient confidentiality as well as public health and safety (Goad/Hattem, "RegWatch," The Hill, 4/19; Rampton, Reuters, 4/19; CQ HealthBeat, 4/19 [subscription required]).

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