HHS Regulation Could Add More Names to List of Prohibited Gun Buyers

January 6, 2014 - 11:20 AM

gun buyer

(AP File Photo)

(CNSNews.com) - The Obama administration says it is doing away with "unnecessary legal barriers" that discourage states from sending the names of some mentally ill people to the national background check system for gun-buyers.

Late on Friday afternoon, the Department of Health and Human Services announced that it plans to modify HIPAA -- the Health Insurance Portability and Accountability Act of 1996 -- "to expressly permit certain HIPAA-covered entities (hospitals, doctors, clinics, etc.) to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals" with mental problems that should legally disqualify them from owning a gun.

"There is a strong public safety need for this information to be accessible to the NICS, and some states are currently under-reporting or not reporting certain information to the NICS at all,” said HHS Secretary Kathleen Sebelius. Some states point to federal privacy restrictions as a reason not to share relevant information with NICS.

But under a proposed rule to be published in the Federal Register on Tuesday, Jan. 7, the administration hopes to add more names to its "prohibited" list.

Federal law says people may not possess or receive a firearm if they have been involuntarily committed to a mental institution; found incompetent to stand trial or have pleaded 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."

Under Obamacare, the administration expects millions of Americans to gain coverage for mental health services, and HHS says its proposed rule is not intended to discourage such treatment.

HHS noted that seeking help for mental health problems or getting treatment "does not make someone legally prohibited from having a firearm," and it said the proposed rule does not change that. "Furthermore, nothing in this proposed rule would require reporting on general mental health visits or other routine mental health care." Routine treatment is still subject to HIPAA privacy rules, HHS says.

HHS said its proposed rule is "narrowly drawn" and "carefully tailored" so it would not apply to "the vast majority of treating health care providers." Only HIPAA-covered entities such as hospitals with "lawful authority" to make adjudication or commitment decisions would be allowed to disclose mental health information to the National Instant Criminal Background Check System.

The information provided to NICS would not include medical records, or any mental health information beyond an indication that the individual is prohibited from possessing a firearm, the rule says.

The National Instant Criminal Background Check System (NICS), maintained by the FBI, is used to determine whether a potential firearms recipient is legally prohibited from possessing a firearm. Other prohibited persons include felons and those convicted of domestic violence.

The proposed HIPAA modifications would permit -- but not require -- covered entities to report to the NICS.

HHS is accepting comments on the proposed rule for the next 60 days.

As for arguments that Congress, not HHS, should make modifications to HIPAA, HHS noted that Congress gave the department the authority to modify HIPAA "as appropriate."

"We note that Congress, when it enacted HIPAA, provided the Department with general authority to determine the permissible uses and disclosures of covered entities and modify the HIPAA standards as appropriate. It is under this authority that the Department has proposed to modify the Privacy Rule to permit certain disclosures for the purpose of NICS reporting."

The proposed rule comes almost one year after President Obama announced 23 executive actions aimed at curbing "gun violence" across the nation.

On the same day HHS announced the HIPAA modifications, the Justice Department issued a proposed regulation to "clarify who, due to mental health reasons, is prohibited under federal law from possessing or receiving firearms."

DOJ is amending the definition of “adjudicated as a mental defective” to clarify that persons found not guilty by reason of mental disease or defect are included in the definition of “adjudicated as a mental defective.”

In addition, the Justice Department is amending the definition of “committed to a mental institution” to clarify that involuntary commitment includes both inpatient and outpatient treatment.

“This step will provide clear guidance on who is prohibited from possessing firearms under federal law for reasons related to mental health, enabling America’s brave law enforcement and public safety officials to better protect the American people and ensure the safety of our homes and communities," Attorney General Eric Holder said.