Summary
The January 6, 2016 Federal Register included a final rule (“Final Rule”) amending the HIPAA Privacy Rule to expressly permit certain “covered entities” to disclose to the National Instant Criminal Background Check System (the “NICS”) the identities of individuals who are not permitted to possess firearms because they are subject to a federal “mental health prohibitor.” The preamble to the Final Rule notes that the Final Rule “can help further the important public safety goal of strengthening the background check system to ensure that individuals who are prohibited from purchasing or possessing firearms are not able to attain them.”
The NICS is a national system created as part of the Brady Gun Law to conduct background checks on individuals who may be disqualified from receiving firearms based upon state law or federally prohibited categories. The NICS is maintained by the FBI. Under federal law, certain categories of individuals are prohibited from shipping, transporting, possessing or receiving firearms, including those who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or, who have otherwise been determined by a lawful authority to be a danger to themselves or others.
According to the Preamble to the Final Rule, there was a belief that the HIPAA Privacy Rule might be preventing certain states from reporting relevant information to the NICS.
Pursuant to the Final Rule, covered entities that order involuntary commitments or make other adjudications that subject individuals to the mental health prohibitor or that serve as repositories for the relevant data are permitted to use or disclose the information needed for NICS reporting either directly to the NICS or to a state repository of NICS data. The Final Rule was published following a 2013 advance notice of proposed rulemaking and a 2014 notice of proposed rulemaking relating to the NICS and permitted disclosures.
The Final Rule specifies:
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the covered entities for which the Final Rule applies (limited to covered entities (i) with legal authority to make adjudications or involuntary commitment decisions that make individuals subject to the prohibitors; or (ii) that serve as repositories of information for NICS reporting);
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where the information can be disclosed (to NICS or an entity designated by a state that reports data to the NICS); and,
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that only limited demographic information can be provided to the NICS, which does not include diagnostic or clinical information.
The press release accompanying the Final Rule notes that it is “carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment.”
The Final Rule is effective February 5, 2016.
The limited number of covered entities that may be affected by the Final Rule should make sure to understand the scope and limitations of the disclosures permitted by the Final Rule.
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