Questions about the scope and efficacy of the background checks required during certain firearm purchases have gained prominence following recent mass shootings. These background checks are intended to identify whether potential purchasers are prohibited from purchasing or possessing firearms due to one or more "prohibiting factors," such as a prior felony conviction or a prior involuntary commitment for mental health reasons. Operationally, such background checks primarily use information contained within the National Instant Criminal Background Check System (NICS), maintained by the Federal Bureau of Investigation (FBI), and a particular focus of the debate in Congress has been whether the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule or state privacy laws are an obstacle to the population of NICS with prohibiting mental health records. On January 7, 2014, the Department of Justice (DOJ) issued a proposed rule that would clarify the existing regulations related to those who would qualify as "adjudicated as a mental defective" and who have been "committed to a mental institution" for purposes of the Gun Control Act of 1968. Prohibiting Mental Health Factors Under the Gun Control Act of 1968

Under the Gun Control Act of 1968 (GCA) , as amended, certain categories of persons are prohibited from possessing, shipping, transporting, and receiving firearms and ammunition. It is important to note that despite references to "mental illness" in the definition, neither a diagnosis of a mental illness nor treatment for a mental illness appears, by itself, to qualify a person as "adjudicated as a mental defective." Rather, an individual's "adjudication as a mental defective" relies upon a determination or decision by "a court, board, commission, or other lawful authority." The use of the term "institution" suggests that the definition of "committed to a mental institution" may apply only to inpatient settings. However, at least one federal court has held that the Supreme Court's recent recognition of an individual right to possess a firearm in District of Columbia v. Heller , suggests that some emergency hospitalization or commitment procedures should not be included within the meaning of "involuntary commitment" for purposes of the GCA. DOJ Proposal to Amend "Adjudicated as a Mental Defective" and "Committed to a Mental Institution"

On January 7, 2014, DOJ issued a notice of its proposed rule to amend the definitions of "adjudicated as a mental defective" and "committed to a mental institution." NICS Improvement Amendments Act of 2007 (NIAA)

In 2007, Congress passed the NICS Improvement Amendments Act (NIAA), which authorizes the Attorney General to make additional grants to states to improve electronic access to records as well as to incentivize states to turn over records of persons who would be prohibited from possessing or receiving firearms under 18 U.S.C. Both DOJ and state officials told GAO that a variety of technological, coordination, and legal (i.e., privacy) challenges limit the states' ability to report mental health records. It should also be noted that both types of entities—courts and health care providers—may also be subject to state health privacy laws that may be more protective of individually identifiable health information than the HIPAA Privacy Rule and other state-level requirements and policies. Although the HIPAA Privacy Rule currently allows disclosure of information where state law expressly requires disclosure of records to NICS, some state officials have reported that they view state health privacy laws and the HIPAA Privacy Rule as potential obstacles to NICS reporting.
Questions about the scope and efficacy of the background checks required during certain firearm purchases have gained prominence following recent mass shootings. These background checks are intended to identify whether potential purchasers are prohibited from purchasing or possessing firearms due to one or more "prohibiting factors," such as a prior felony conviction or a prior involuntary commitment for mental health reasons. Operationally, such background checks primarily use information contained within the National Instant Criminal Background Check System (NICS) and a particular focus of the debate in Congress has been whether federal privacy standards promulgated under the Health Insurance Portability and Accountability Act (i.e., the HIPAA Privacy Rule) or state privacy laws are an obstacle to the submission of mental health records to NICS.
Under the Gun Control Act of 1968 (GCA), as amended, persons adjudicated to be mentally defective or who have been committed to a mental institution are prohibited from possessing, shipping, transporting, and receiving firearms and ammunition. Neither a diagnosis of a mental illness nor treatment for a mental illness is sufficient to qualify a person as "adjudicated as a mental defective." Rather, an individual's "adjudication as a mental defective" relies upon a determination or decision by a court, board, commission, or other lawful authority. The definition of "committed to a mental institution" may apply only to inpatient settings. At least one federal court has held that the Supreme Court's recent recognition of an individual right to possess a firearm suggests that some emergency hospitalization or commitment procedures, that may not have as many procedural safeguards as formal commitment, should not be included within the meaning of "involuntary commitment" for purposes of the GCA. In 2007, Congress passed the NICS Improvement Amendments Act (NIAA), which authorizes the Attorney General to make additional grants to states to improve electronic access to records as well as to incentivize states to turn over records of persons who would be prohibited from possessing or receiving firearms.
In 2012, the Government Accountability Office (GAO) reported that a variety of technological, coordination, and legal (i.e., privacy) challenges limit the states' ability to report mental health records to NICS. The HIPAA Privacy Rule, which applies to most health care providers, regulates the use or disclosure of protected health information, and it has been perceived as a potential obstacle to sharing information with NICS, especially in states that do not expressly require disclosure of such records to NICS. Moreover, courts and health care providers that generate such prohibiting mental health records may also be subject to state health privacy laws that may be more restrictive than the HIPAA Privacy Rule.
In February 2013, the Department of Health and Human Services (HHS) announced its intention to amend the HIPAA Privacy Rule to remove any potential impediments to state reporting of some mental health records to NICS, and on January 7, 2014, HHS issued its proposed rule that would modify the HIPAA Privacy Rule. The Department of Justice (DOJ) also issued a proposed rule that would clarify the terms "adjudicated as a mental defective" and "committed to a mental institution."