Obama taking executive action on guns after Senate fails to; HHS also takes steps

Associated Press reports:

Blocked by Congress from expanding gun sale background checks, President Obama is turning to actions within his own power to keep people from buying a gun who are prohibited for mental health reasons.

Federal law bans certain mentally ill people from purchasing firearms, but not all states are providing data to stop the prohibited sales to the FBI’s background check system.


You can read more of their report on Fox News, but what I really want to call attention to is  the advance notice of proposed rule-making posted today by HHS on the HIPAA Privacy Rule and the National Instant Criminal Background Check System. The intention is to lower the HIPAA barriers to providing information to the system:

In particular, we are considering creating an express permission in the HIPAA rules for reporting the relevant 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.

One of the most problematic issues has been whether certain state agencies are actually HIPAA-covered entities that might be prohibited under the Privacy Rule from disclosing information in the absence of a state law requiring disclosure. HIPAA already has a provision that permits covered entities to disclose if required to by state law, and some state agencies may qualify as “hybrid entities,” which would permit disclosure, but not all states have mandatory disclosure laws and/or establish certain agencies as hybrid entities. In response, HHS writes:

To address these concerns, the Department is considering whether to amend the Privacy Rule to expressly permit covered entities holding information about the identities of individuals who are subject to the mental health prohibitor to disclose limited mental health prohibitor information to the NICS. Such an amendment might produce clarity regarding the Privacy Rule and help make it as simple as possible for States to report the identities of such individuals to the NICS.

In crafting the elements of an express permission, we would consider limiting the information to be disclosed to the minimum data necessary for NICS purposes, such as the names of the individuals who are subject to the mental health prohibitor, demographic information such as dates of birth, and codes identifying the reporting entity and the relevant prohibitor. We would not consider permitting the disclosure of an individual’s treatment record or any other clinical or diagnostic information for this purpose. In addition, we would consider permitting disclosures for NICS purposes only by those covered entities that order involuntary commitments, perform relevant mental health adjudications, or are otherwise designated as State repositories for NICS reporting purposes.

You can read the advance notice here.

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