Proposed HIPAA privacy rule on gun background checks open for comments

By David Codrea for examiner.com

An advance notice of proposed rulemaking by the Office for Civil Rights Department of the Department of Health and Human Services titled “HIPAA Privacy Rule and the National Instant Criminal Background Check System (NICS)” was published yesterday in the Federal Register.

Drafted following Executive Actions signed by President Barack Obama in January, the notice claims “Concerns have been raised that, in certain states, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule may be a barrier to States’ reporting the identities of individuals subject to the mental health prohibitor to the NICS.”

Absent from that summary explanation is an identification of who raised those concerns, how widespread they are, and if they reflect a political agenda driven by government officials and special interest groups.

“The Department … is issuing this Advance Notice … to solicit public comments on such barriers to reporting and ways in which these barriers can be addressed,” the notice states. “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.

“In addition, we are soliciting comments on the best methods to disseminate information on relevant HIPAA policies to State level entities that originate or maintain information that may be reported to NICS,” the summary continues. “Finally, we are soliciting public input on whether there are ways to mitigate any unintended adverse consequences for individuals seeking needed mental health services that may be caused by creating express regulatory permission to report relevant information to NICS.

“The Department will use the information it receives to determine how best to address these issues,” it declares.

Gun Rights Examiner addressed this development on Monday, along with a “clarification” of the Attorney General’s powers “for purposes of permanent import controls” of defense articles and services. That report reminded readers of an ongoing action in New York, where it has been alleged the State Police are cross-referencing medical records with handgun owner permit lists in apparent partnership with the Department of Homeland Security.

The HHS Advance Notice invites public commentary, giving alternative ways for citizens to communicate their concerns, but perhaps the best way is to simply fill out their online form (via “Comment Now” button at Regulations.gov). Note that comments must be submitted on or before June 7. But that is only the first step concerned gun rights advocates must take.

As “Authorized Journalists”/“legitimate media” — who time and again demonstrate they are hardly disinterested players — will hardly be inclined to play government watchdog on this, it’s up to the same gun groups and online activists who mobilized in the face of the Senate gun threat to once more pick up a burden. That means spreading this news and getting others to follow suit, it means keeping up with developments as those with legal knowledge assess likely outcomes, and it means pressuring representatives in the legislature to provide oversight in the interests of rights, of separation of powers, and, just as a telling curiosity, of determining exactly where in the Constitution any of this has been delegated within the purview of Executive powers, that is, where any of this would be even remotely lawful under the federal system established by the Framers.