The Department of Health and Human Services (HHS) has released a proposed rule that would modify the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule by allowing health care providers to make certain disclosures to the National Instant Criminal Background Check System (NICS).  The NICS aims to keep guns from being sold to those prohibited by law from possessing them, such as felons and those involuntarily committed to mental institutions.

Currently, HIPPA-covered entities may be reluctant to provide information to the NICS for fear of violating HIPAA, as evidenced by the low number of NICS reports coming out of many states.  HHS Secretary Kathleen Sebelius explains that “this proposed rulemaking is carefully balanced to protect and preserve individuals’ privacy interests, the patient-provider relationship and the public’s health and safety.”

Under the proposed rule, certain HIPAA-covered entities would be permitted to disclose the identities of individuals prohibited by federal law from possessing or receiving a firearm for mental health reasons.  The goal is to ensure that accurate but limited information may be reported to NICS and such information would not include any clinical, diagnostic or other mental health information.  Notably, the proposal simply permits, but does not require, such disclosures.