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Addressing Unnecessary Barriers to Firearm Background Check Reporting

By Leon Rodriguez, HHS Office for Civil Rights Director
Posted April 19, 2013

 

In the wake of the Newtown tragedy, President Obama proposed a comprehensive plan to reduce gun violence by keeping guns out of dangerous hands, banning military-style assault weapons and high-capacity magazines, making schools safer, and increasing access to mental health services. In addition to calling on Congress to pass common sense legislation, the President announced that his administration would take 23 Executive Actions (http://www.whitehouse.gov/issues/preventing-gun-violence). 

Today, the Department of Health and Human Services moves forward on one of those executive actions to address unnecessary legal barriers under the Health Insurance Portability and Accountability Act (HIPAA) that may prevent some states from reporting information to the National Instant Criminal Background Check System (NICS).

The NICS was created by the Brady Act and ensures that guns are not sold to those prohibited by law from buying them, including felons, those convicted of domestic violence, and individuals involuntarily committed to a mental institution or found to be a danger or unable to manage their affairs due to a mental health condition.

While this background check system is the most efficient and effective way to keep guns out of the hands of potentially dangerous individuals, it is only as effective as the information that is available to it.  According to a 2012 Government Accountability Office report, 17 states had submitted fewer than 10 records of individuals prohibited for mental health reasons.

Concerns remain that the Health Insurance Portability and Accountability Act (HIPAA) may be preventing some states from sending complete records to the NICS. That’s why the Department is initiating a rulemaking process to assess and address unnecessary legal barriers under HIPAA that may be a barrier to this reporting.

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.

The Advance Notice of Proposed Rulemaking announced today asks for the public’s input on the problems HIPAA may pose to state reporting of mental health information to NICS, and on waysto ensure that changes to the HIPAA rules will not discourage individuals from seeking mental health services. The ANPRM will be available for review at: http://www.federalregister.gov/.  Comments can be submitted to http://www.regulations.gov/