DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Part 164
Health Insurance Portability and Accountability Act (HIPAA)
Privacy Rule and the National Instant Criminal Background Check System
(NICS)
AGENCY: Office for Civil Rights, Department of Health and Human
Services.
ACTION: Final rule.
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SUMMARY: The Department of Health and Human Services (HHS or ``the
Department'') is issuing this final rule to modify the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to
expressly permit certain HIPAA covered entities to disclose to the
National Instant Criminal Background Check System (NICS) the identities
of individuals who are subject to a Federal ``mental health
prohibitor'' that disqualifies them from shipping, transporting,
possessing, or receiving a firearm. The NICS is a national system
maintained by the Federal Bureau of Investigation (FBI) to conduct
background checks on persons who may be disqualified from receiving
firearms based on Federally prohibited categories or State law. Among
the persons subject to the Federal mental health prohibitor established
under the Gun Control Act of 1968 and implementing regulations issued
by the Department of Justice (DOJ) are individuals who have been
involuntarily committed to a mental institution; found incompetent to
stand trial or not guilty by reason of insanity; or otherwise have been
determined by a court, board, commission, or other lawful authority to
be a danger to themselves or others or to lack the mental capacity to
contract or manage their own affairs, as a result of marked subnormal
intelligence or mental illness, incompetency, condition, or disease.
Under this final rule, only covered entities with lawful authority to
make the adjudications or commitment decisions that make individuals
subject to the Federal mental health prohibitor, or that serve as
repositories of information for NICS reporting purposes, are permitted
to disclose the information needed for these purposes. The disclosure
is restricted to limited demographic and certain other information
needed for NICS purposes. The rule specifically prohibits the
disclosure of diagnostic or clinical information, from medical records
or other sources, and any mental health information beyond the
indication that the individual is subject to the Federal mental health
prohibitor.
DATES: Effective date: This final rule is effective on February 5,
2016.
