HHS Announces Proposed Amendment to HIPAA Privacy Rule for Reporting to National Instant Criminal Background Check System

HHS Announces Proposed Amendment to HIPAA Privacy Rule for Reporting to National Instant Criminal Background Check System


On January 7, 2014, the U.S. Department of Health & Human Services (“HHS”) published a notice of proposed rulemaking (“Notice”) to amend the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy Rule 79 Fed.Reg. 2014. If it were to become a final regulation, this Notice permits certain covered entities (as defined under HIPAA) to disclose selected information regarding individuals subject to the Federal mental health prohibitor to the National Instant Criminal Background Check System (“NICS”). The purpose of this proposed amendment, according to HHS, is to bolster the strength of “….the federal background check system to keep guns out of potentially dangerous hands” by removing legal hurdles in HIPAA that could prevent reporting relevant information to the NICS.

The NICS is a national database used to conduct background checks on individuals who may be disqualified from purchasing or receiving firearms under federal and state law. The “Federal mental health prohibitor” disqualifies “individuals 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 or to lack the mental capacity to contract or manage their own affairs” from purchasing or receiving firearms.

This Privacy Rule proposed amendment would create a new category of permitted disclosures for specialized government functions. The proposed amendment would permit HIPAA covered entities who perform the commitments or adjudications that make individuals subject to the Federal mental health prohibitor or act as repositories of NICSrecords on behalf of a state, to use and disclose certain information for NICS-reporting purposes. These covered entities would be permitted to disclose “only the limited demographic and certain other information needed for purposes of reporting to the [NICS].” HHS explains in the preamble that this includes the “individual’s name; date of birth; sex; a code or notation indicating that the individual is subject to the Federal mental health prohibitor; a code or notation representing the reporting entity; and a code identifying the agency record supporting the prohibition.” Covered entities would not be permitted to disclose clinical or diagnostic information, medical records, or other identifiable health information about such an individual. Covered entities could disclose the information directly to the NICS or to an entity designated by a state as a data repository for NICS-reporting purposes.

Because the Notice focuses on covered entities that actually perform the commitments or adjudication, it does not affect most covered entities (treating providers) that engage only in treatment functions. Furthermore, this proposed amendment would only permit and not require these specific covered entities to disclose such information. This permission would not extend to prohibitors other than the Federal mental health prohibitor listed at 18 U.S.C. 922(g). In the Notice, HHS emphasized the desire to balance the competing concerns raised by those who felt that the proposed amendment would infringe on an individual’s Second Amendment right to bear arms and the right to due process under the U.S. Constitution, versus those who supported the proposal as an important measure for public safety. In responding to these concerns, HHS highlighted the need to balance the expressed concerns against the need for reducing real or perceived barriers to reporting information to the NICS to better protect the public’s health and safety.

HHS is soliciting comments on various issues addressed in the Notice, including whether the permission should be broadened to include reporting on individuals subject to state firearms prohibitions and additional (non-clinical) identifying information. All such comments are due by March 10, 2014.

Saul Ewing attorneys regularly assist clients with HIPAA-related matters. If you have any questions about this Client Alert or would like more information, please contact Ned Rahn, one of the other attorneys in our Health Practice, or the attorney in the Firm with whom you are regularly in contact.

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