The HHS Office for Civil Rights has sent to the Office of Management and Budget a proposed rule to lift legal barriers related to the HIPAA privacy rule that may prevent states from reporting mental health information to the National Instant Criminal Background Check.

OMB review is one of the final steps before publication of a rule in the Federal Register. Removing such barriers to instant background checks of gun purchasers is one of the provisions of President Obama’s gun control plan issued in January 2013 following the shooting tragedy at Sandy Hook Elementary School in Newtown, Conn.

HHS/OCR in April issued a request for information in preparation for rulemaking. The background system is used to prevent felons, those convicted of domestic abuse and individuals with serious mental illnesses from buying guns. But a Government Accountability Office report in 2012 found that 17 states have submitted less than 10 records of individuals prohibited from owning a gun for mental health reasons.

Leon Rodriguez, director of the HHS Office for Civil Rights, in April issued an explanation of the goals of the changes that OCR seeks:

“I know that there are many misperceptions about how the NICS works and what information is or is not in the system. It is important to reiterate that the NICS is not a mental health registry and this rulemaking process will not create a mental health registry. Here are the facts:

* “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.

* “The database that houses 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.

* “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.

* “Only the individual who was denied, if he or she wants to appeal and seek to correct incomplete or inaccurate information in the system, can go back to the NICS directly and request information about the reason for the denial.

“This rulemaking process – and all of the proposals in the President’s gun violence reduction plan – is based on an understanding that the vast majority of people struggling with mental illnesses are not violent, and in fact they are more likely to be the victims than perpetrators of a crime. That’s why the President’s plan includes initiatives to make it easier for people with mental illness to get the treatment and support they need.”

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