CMS Deletes Blog Post About Modified HIPAA Regulations Under Executive Actions on Guns

January 5th, 2016

For reasons I don’t know, one day after CMS published this blog post (saved on the WayBack Machine) about how HIPAA regulations were modified, it was deleted. I’ll post the content here to save it for perpetuity. Also, here is the 56-page filing that CMS will publish in the Federal Register.

Obama administration modifies HIPAA to strengthen the firearm background check system

By: Jocelyn Samuels, Director of the Office for Civil Rights, U.S. Department of Health and Human Services

Today the Department of Health and Human Services (HHS) moved forward on commitments made by President Obama to curb gun violence across the nation.  Specifically, we have modified the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to expressly permit certain covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of those individuals who, for mental health reasons, already are prohibited by Federal law from having a firearm.

Due to a history of under-reporting, the NICS has lacked complete information about all individuals who are prohibited by Federal law from possessing or receiving a firearm. The modification announced today better enables the reporting of the identities of prohibited individuals to the background check system and is an important step toward improving the public’s safety while continuing to strongly protect individuals’ privacy interests.

Specifically, this final rule gives States improved flexibility to ensure accurate but limited information is reported to the NICS.  The rulemaking makes clear that, under the Privacy Rule, certain covered entities are permitted to disclose limited information to the NICS.  The information that can be disclosed is the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.

The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment. This rule applies only to a small subset of HIPAA covered entities that either make the mental health determinations that disqualify individuals from having a firearm or are designated by their States to report this information to NICS – and it allows such entities to report only limited identifying, non-clinical information to the NICS.

The rule does not apply to most treating providers and does not allow reporting of diagnostic, clinical, or other mental health treatment information.

It is important to note that the vast majority of Americans with mental health conditions are not violent and that those with mental illness are in fact more likely to be victims than perpetrators.  An individual who seeks help for mental health problems or receives mental health treatment is not automatically legally prohibited from having a firearm; nothing in this final rule changes that.  HHS continues to support efforts by the Administration to dispel negative attitudes and misconceptions relating to mental illness and to encourage individuals to seek voluntary mental health treatment.  Learn more about mental health resources and recovery at

The Final Rule is available for review at:

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