The HHS Office for Civil Rights has released 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.

The rule, available now, is scheduled for formal publication on Jan. 7 in the Federal Register, followed with a 90-day comment period. The Department of Justice also has released an accompanying proposed rule to amend the Gun Control Act of 1968 by clarifying definitions of persons who would fall under the prohibition to possess guns. Removing barriers to instant background checks of gun purchasers was 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 check 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.

The HHS proposed rule would amend the HIPAA privacy rule “to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background System the identities of individuals who are subject to a federal ‘mental health prohibitor’ that disqualifies them from shipping, transporting, possessing or receiving a firearm.”

Individuals subject to the prohibitor include those involuntarily committed to a mental institution, found incompetent to stand trial or not guilty by reason of insanity, or otherwise found by lawful authorities to be a danger to themselves or others or lack the mental capacity to manage their affairs.

The proposed rule would permit but not require HIPAA covered entities to report to the criminal background system, and would not change existing uses and disclosures of protected health information under the privacy rule.

The HHS rule is here and the DOJ rule is here.

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