The HHS Office for Civil Rights has issued a request for information as it prepares to promulgate a 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 System.

Abbreviated as NICS, the system is used to prevent felons, those convicted of domestic violence 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.

The RFI, in the form of a notice of advanced rulemaking, covers one of 23 executive orders that President Obama issued on January 16 related to gun control following the tragedy in Newtown, Conn. HHS is considering creating an express permission in HIPAA for reporting relevant mental health information to the NICS “by those HIPAA covered entities responsible for involuntary commitments or the formal adjudications that would subject individuals to the mental health prohibitor, or that are otherwise designated by the States to report to the NICS,” according to the RFI.

“In addition, we are soliciting comments on the best methods to disseminate information on relevant HIPAA policies to State level entities that originate or maintain information that may be reported to NICS. Finally, we are soliciting public input on whether there are ways to mitigate any unintended adverse consequences for individuals seeking mental health services that may be caused by creating express regulatory permission to report relevant information to NICS.”

The notice of advanced rulemaking is available here with publication April 23 in the Federal Register.

Leon Rodriguez, director of the HHS Office for Civil Rights, has issued an explanation of the goals of the changes being considered:

“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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