The Department of Health and Human Services (“HHS”) is seeking comments on a proposal to amend the HIPAA Privacy Rule to expressly permit covered entities to disclose certain mental health information to the National Instant Background Check System (NICS), the federal government’s background check system for the sale or transfer of firearms by licensed dealers.

Federal law prohibits the following persons from possessing or receiving firearms: (1) individuals who have been involuntarily committed to a mental institution; (2) individuals who have been found incompetent to stand trial or not guilty for reason of insanity; and (3) individuals who have been otherwise determined, through formal adjudication process, to have a severe mental condition that results in the individual presenting a danger to themselves or others or being incapable of managing their own affairs (collectively referred to in the proposed rule as the “mental health prohibitor”).  Federal agencies are required by the NICS Improvement Amendments Act of 2008 to report to NICS the identities of individuals who are subject to the mental health prohibitor.  The Act also authorizes incentives for States to provide such information when it is in their possession.

HHS issued the proposed rule to address concerns that the HIPAA Privacy Rule may be preventing some States from reporting to NICS the identities of individuals subject to the mental health prohibitor.  Records related to involuntary commitments and mental health adjudications generally originate in entities in the criminal justice system.  Such entities are not HIPAA covered entities, and the records are therefore not subject to HIPAA.  However, there may be State entities outside the criminal justice system that are involved in some involuntary commitments or mental health adjudications, and these entities may be HIPAA covered entities.  Where a record of involuntary commitment or mental health adjudication originates with a HIPAA covered entity, or the HIPAA covered entity is the State repository for such records, those records are subject to HIPAA.  Therefore, the concern is that the individuals identified in such records are not being reported to NICS due to HIPAA compliance considerations.

To address these concerns, HHS is considering whether to amend the Privacy Rule to expressly permit covered entities to disclose limited information to NICS about the identities of individuals who are subject to the mental health prohibitor.  Pursuant to the HHS request for comments, the potential exception may limit the information disclosed to the minimum data necessary for NICS purposes, and limit permission to disclose to covered entities that order involuntary commitments, perform relevant mental health adjudications, or are otherwise designated as State repositories for NICS reporting purposes.

HHS is seeking comments on specific questions related to the proposal.  These questions are listed in HHS’ Advance Notice of Proposed Rulemaking, which is available here.  Comments should be submitted in writing, or electronically at, on or before June 7, 2013.