In the wake of recent gun violence and in a concerted effort to protect public safety, the Department of Health and Human Services (HHS) released a final rule published in the Federal Register January 6, 2016, that modifies the HIPAA Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of persons who are subject to a Federal“mental health prohibitor” that would prevent such individuals from possessing a firearm (“Final Rule”). The covered entities are those that have “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 NICS reporting purposes.”

The Final Rule, which will appear at 42 C.F.R § 164.512(k)(7), adopted what HHS had initially proposed in April 2013 in its proposed rule. The purpose of the Final Rule is to afford the NICS with the ability to identify individuals subject to this prohibitor for the purpose of disqualifying them from shipping, transporting, possessing or receiving a firearm. Individuals subject to the Federal mental health prohibitor include those who have been involuntarily committed to a mental health institution, found incompetent to stand trial or not guilty by reason of insanity, or have been determined by a court or other lawful authority to be a danger to themselves or others or being unable to manage their own affairs. The disclosures to the NICS will be restricted to limited demographic and other information required by the NICS. Further, the Final Rule specifically prohibits the disclosure of any diagnostic or clinical information and “any mental health information beyond the indication that the individual is subject to the Federal mental health prohibitor.”

Importantly, the Final Rule’s express permission to disclose/report is narrowly tailored. Specifically, it does not extend to covered entities permission to report to the NICS the protected health information of individuals who are subject to the State-only mental health prohibitors. Additionally, the permission is not extended to “most treating providers”, which emphasizes HHS’ intention to protect the privacy of the patient-provider relationship.

A key tension at the heart of the gun control issue for years has been how to adequately protect individual privacy, in particular, mental health information, and maintain public safety. Not surprisingly, the Final Rule’s publication comes at a time of heightened tension between these issues, and President Obama announced yesterday that under his executive actions on guns, the administration will, among other actions, seek to expand mandatory background checks for certain private gun sales.

The Final Rule is effective February 5, 2016, 30 days from its publication in the Federal Register.