HHS Aims To Strengthen Gun Background Checks by Easing HIPAA Barriers

On Friday, HHS published a notice of proposed rulemaking aimed at easing some of the legal barriers under the 1996 Health Insurance Portability and Accountability Act that states say prevent them from reporting certain medical data to the federal gun-purchase background check database, The Hill's "RegWatch" reports (Goad/Hattem, "RegWatch," The Hill, 4/19).

Background

The notice follows through on one of 23 executive actions President Obama announced in the wake of the mass shooting in Newtown, Conn. (California Healthline, 1/17).

It also comes after a bipartisan amendment to gun-control legislation (S 649) that would have reauthorized and expanded federal mental health care, research and education programs failed last week (Rampton, Reuters, 4/19).

The National Instant Criminal Background Check System, or NICS, is used by gun dealers to ensure they are not selling weapons to individuals who are prohibited from owning firearms, such as individuals with substance use disorders and those with severe mental health issues.

According to "RegWatch," many states have declined to release certain information to the NICS, citing prohibitions under HIPAA ("RegWatch," The Hill, 4/22).

Although HIPAA states that hospitals and agencies are allowed to disclose data when it is required by law, a 2012 Government Accountability Office report found that some states did not have explicit laws requiring state agencies to share patients' mental health data (Reuters, 4/19).

Further, the report showed 17 states had submitted fewer than 10 records of individuals barred from owning firearms for mental health reasons ("RegWatch," The Hill, 4/19).

Details on Proposed Rulemaking

The rulemaking notice stated that HHS is seeking public comment on how HIPAA is preventing states from sharing such records and how the legal barriers could be addressed "without discouraging individuals from seeking mental health services" (CQ HealthBeat, 4/19).

In addition, the notice indicated that HHS is considering enacting "an express permission in the HIPAA rules for reporting the relevant information to the NICS." The department also stressed that information provided to gun dealers by the database does not contain any personal health information -- they are only notified whether the prospective buyer is approved or denied ("RegWatch," The Hill, 4/19).

HHS Secretary Kathleen Sebelius said, "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." She added, "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 (CQ HealthBeat, 4/19).

Mental Health Advocates Diverge on Push for Expanded Treatment

In related news, the Senate's defeat of the bipartisan amendment to gun-control legislation has renewed the push by mental health advocates to expand treatment, but differences remain on how best to proceed, Politico reports.

Andrew Sperling -- director of federal legislative advocacy for the National Alliance on Mental Illness -- said, "There was not unanimity across the mental health groups" about the link between mental health, gun control and gun violence. Advocates note that most individuals with mental illness are not violent and tying discussions of mental health to gun violence could increase the stigma.

According to Politico, the Senate's failure to pass the amendment does not mean Congress will not act to address mental health care this year. Sen. Roy Blunt (R-Mo.) said, "I think there's a really good opportunity we can still get this done." He added that legislation on the mental health system "should not be dependent on gun legislation" (Kenen/Winfield Cunningham, Politico, 4/21).