OCR’s new Advance Notice of Proposed Rulemaking (ANPRM) suggests trimming back on HIPAA to make it easier for the feds to keep guns out of crazy people’s hands.
 
The ANPRM from HHS’ Office for Civil Rights refers to the National Instant Criminal Background Check System (NICS) established by the 1993 Brady Act. NICS lists citizens who are prohibited from exercising their Second Amendment rights because of markers of mental incapacity, aka “mental health prohibitors”; these include commitment to a mental institution, being found not guilty of a crime by reason of insanity, etc. Federally licensed gun dealers are required to check this list before selling someone a gun.
 
NICS gets its info from a variety of government sources, including “state agencies, boards, commissions, or other lawful authorities that order involuntary commitments or conduct mental health adjudications,” the rule says.
 
And that’s where the HIPAA issue comes from: The government doesn’t know which of the data landing in NICS are protected health information (PHI), which would make the dispensers covered entities and present at least a theoretical privacy violation.
 
The wording of the ANPRM suggests that feds are concerned that has slowed up delivery of data to NICS; as Adrianna MacIntyre reports at Project Millennial, “7 states submitted fewer than ten records each for individuals who would be prohibited on mental health grounds. What’s more, just 12 states make up the overwhelming bulk of submitted mental health prohibitors.”
 
“To address these concerns,” says the ANPRM, “the Department  [of HHS] 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.”
 
The feds ask several questions related to the subject – e.g., “If your State does not routinely report the identities of such individuals to the NICS, what are the primary reasons for not doing so?” – and invite citizens to respond.
 
Comments are due at regulations.gov by June 7, 2013.