Energy and Commerce Committee Republican leaders Rep. Tim Murphy (PA-18) and Rep. Fred Upton (MI-06) today sought clarification from the Department of Health and Human Services (HHS) on how the Health Insurance Portability and Accountability Act (HIPAA) and HIPAA privacy rules impact the ability of state and local governments to share mental health records with the National Instant Criminal Background Check System (NICS).
The request is part of Oversight and Investigations Subcommittee Chairman Tim Murphy's ongoing examination into the potential causes of outbreaks of mass violence, particularly programs at the federal level related to mental health research, care, and other areas including mental health records in NICS.
"It is unlawful for any person who has been involuntarily committed or determined by the courts to be mentally ill, to possess or purchase a firearm. This information must be uploaded to the National Instant Criminal Background Check System to ensure legal safeguards are working as they should. With some states asserting that HIPAA prevents legal records on mental health adjudications from being shared with NICS, this inquiry will help to clarify that the HIPAA privacy rule should in no way hinder a state from relaying this vital information or complying with federal law to keep firearms out of the hands of the violently mentally ill."
In December 2005, a Virginia judge found Seung- Hui Cho, the Virginia Tech gunman, to be mentally ill and a danger to himself. He was directed to undergo outpatient treatment. Since the judge ruled Cho posed a danger to himself and others, Cho would have been prohibited from possessing or purchasing a firearm under federal law. His outpatient commitment records were not uploaded to NICS. As a result, Cho was able to purchase two handguns.
In a letter to HHS Secretary Kathleen Sebelius, the committee leaders wrote, "One matter that has been brought to the committee's attention is the applicability of the Health Insurance Portability and Accountability Act (HIPAA) and the HIPAA Privacy Rule on the ability of state and local governments to share mental health records with the National Instant Criminal Background Check System (NICS). As you are aware, it is unlawful for individuals who have been involuntarily committed to a mental health facility or adjudicated by a court as mentally ill to possess a firearm. In 2007, Congress enacted the NICS Improvement Amendments Act to facilitate the sharing of mental health records by states with NICS. According to several news reports and a recent Government Accountability Office Report, several states as well as the District of Columbia do not provide mental health records to NICS over concerns that providing such records violates the HIPAA Privacy Rule. "
The members requested HHS provide answers, documents, and a briefing by February 22, 2013, on the following questions:
When did the Department of Justice (DOJ) request your agency to consider changing the HIPAA Privacy Rule that would specifically allow disclosure of mental health records for NICS reporting purposes?
Where is HHS in the process of reviewing the HIPAA Privacy Rule issue as it relates to the reporting of mental health records to the NICS database, and have you made a decision to pursue a proposed change to the HIPAA Privacy Rule for mental health records reporting?
What analysis has your agency completed on the barriers that states face when disclosing mental health records to the NICS system?
Specifically, does 45 C.F.R. § 164.512(f) permit a state to disclose mental health records to the Federal Bureau of Investigations for inclusion in the NICS system?
Did you make any recommendation to the Vice President's gun control taskforce relating to the HIPAA Privacy Rule?