Today, as part of President Obama's common sense plan to reduce gun violence, the Department of Health and Human Services (HHS) Secretary Kathleen Sebelius initiated a rulemaking process to remove unnecessary legal barriers under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule that may prevent states from reporting to the National Instant Criminal Background Check System (NICS), which is the database that houses information on individuals prohibited by law from possessing firearms. This is one of the 23 executive actions the President announced in the wake of the Newtown tragedy to protect our children and our communities from gun violence.
The NICS was created by the Brady Act and ensures that guns are not sold to those prohibited by law from buying them, including felons, those convicted of domestic violence, and individuals involuntarily committed to a mental institution or found to be a danger or unable to manage their affairs due to a mental health condition.
While this background check system is the most efficient and effective way to keep guns out of the hands of dangerous individuals, it is only as effective as the information that is available to it. According to a 2012 Government Accountability Office report, 17 states had submitted fewer than 10 records of individuals prohibited for mental health reasons.
Today, the HHS Office for Civil Rights (OCR) plans to issue an Advance Notice of Proposed Rulemaking (ANPRM) to ask for the public's input on how HIPAA may prevent some states from reporting to the NICS and ways in which these barriers can be addressed without discouraging individuals from seeking mental health services.
"In order to protect our children and communities, we must ensure that information on potentially dangerous individuals who are prohibited from possessing firearms is available to the background check system," said Secretary Sebelius. "At the same time, it is important to note that the vast majority of Americans with mental health conditions are not violent and that those with mental illness are in fact more likely to be victims than perpetrators. We do not want to discourage individuals who need help from seeking mental health services, and our actions will be carefully tailored to ensure patient confidentiality as well as public health and safety."
"Through the public comment process, we will use the data and information provided by states, health providers, patient advocates and others to determine how best to remove unnecessary barriers to NICS reporting while protecting patient privacy," said OCR Director Leon Rodriguez.
The database that houses non-criminal justice information on individuals prohibited from possessing firearms for reasons related to mental health -- called the NICS Index -- does not contain medical or mental health records. If an individual is prohibited from purchasing a firearm due to specific mental health reasons as set by law, the following information is submitted to the NICS: (1) basic identifying information about the individual such as name, social security number, and date of birth, (2) the name of the state or federal agency that submitted the information, and (3) a notation on which of the ten prohibited categories is applicable to the individual, which allows the individual to appeal and seek to correct incomplete or inaccurate information if needed.
When federally licensed firearms dealers request a NICS background check for a potential buyer, the only information they get back is that the potential buyer is approved, denied, or additional investigation is needed. The dealer does not receive any information about why an individual is denied and does not ever have access to any records of potential buyers, including health records.
The ANPRM will be available for review at: http://www.federalregister.gov/. Comments can be submitted to http://www.regulations.gov/