On January 7th, the U.S. Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking to modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule (at 45 C.F.R. § 164.512(k)).  The amendment would expressly permit certain entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals subject to a federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing or receiving a firearm.

Individuals subject to a federal mental health prohibitor include those individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or 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 to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.

The Notice explains that the HIPAA Privacy Rule seeks to balance individual privacy interests with public policy goals, including public health and safety and that the Privacy Rule permits covered entities to use and disclose health information without an individual’s authorization, subject to specific conditions and limitations, for certain purposes, including to avert a serious threat to health or safety and where required by law.

HHS notes that the proposed rule would not affect the scope of the NICS, the federal database administered by the Federal Bureau of Investigation, and would not expand categories of prohibited persons or modify other laws pertaining to firearms purchases.  Instead, according to HHS, the proposed rule is intended to address perceptions that HIPAA creates a barrier to entities reporting information to the NICS.

Under the proposed rule, certain HIPAA covered entities would be able to disclose limited information, which does not include medical records or any diagnostic or clinical information beyond the indication that the individual is subject to the federal mental health prohibitor.

The proposed rule would authorize only those entities with authority to make adjudications or commitment decisions that make individuals subject to the federal mental health prohibitor or that serve as repositories of information for NICS reporting purposes to disclose information to the NICS.

Additional detail regarding the covered entities that may report to the NICS and the information that can be reported to the NICS is outlined in the proposed rule availablehere.  HHS is accepting comments on the proposed rule through March 10, 2014.