Gun Owners Foundation Comments to HHS on HIPAA Privacy Rule and the NICS System

Michael Harless Administrative Law, Firearms Law

Our firm filed comments for Gun Owners Foundation with the U.S. Department of Health and Human Services (“HHS”) opposing its Proposed Rule designed to decrease the number of Americans who may possess firearms, even for self defense in the home.

The HHS Proposed Rule (“PR”) is one of the “23 executive actions” announced by the Obama Administration allegedly in response to the Newtown, Connecticut mass shooting. It proposes changes in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) regulations which were designed to establish national standards to protect the privacy of healthcare records. This PR would authorize health care providers to provide information to the National Instant Criminal Background Check System (“NICS”).

Under 18 U.S.C. Section 922(g)(4), Congress banned from firearms posession only persons “adjudicated” mentally defective or “committed”to a mental institution — both of which require a formal, judicial process. ATF, however, has unilaterally expanded the law through its regulations to bar ownership of firearms by anyone who has been informally “found” or“determined” to lack the capacity to manage his affairs on account of mental “incompetence.” This expanded definition potentially includes Veterans Administration bureaucrats to bar tens of thousands of veterans who seek post-combat treatment for PTSD, or even older vets seeking a guardian to help with his finances, from owning firearms.

The HHS regulations make the illegal ATF regulations even worse by waiving the privacy rights we have in our own medical records, and allow all sorts of new entities to decide we are dangerous, and report us to NICS.

HHS claims its PR is necessary to remove a “perceived barrier” for reporting to NICS. Our comments noted that HHS appears to be operating under a misconception that states are not reporting to NICS solely because they misunderstand HIPAA. HHS never stops to consider that states may decline to report to NICS about persons who they do not believe meet the statutory definition.

HHS wants to make an end run around state entities that have been designated to report to NICS. Our comments reminded HHS that, under our federal system, it is for the states — not an unelected federal bureaucrat — to designate who reports to NICS. We also explained that its PR would make it much harder to get erroneous information removed from NICS. Finally, our comments criticized HHS for usurping the role of the Department of Justice, by authorizing health care providers to submit even more private medical information than NICS requests.

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