By Anjali B. Dooley, MBA, JD
After analysis of several comments and responses from many advocacy groups on gun laws (both pro and against), mental health groups, medical professional organizations, and legal groups, on January 4, 2016, the Department of Health and Human Services (HHS) moved forward on the Obama Administration’s commitment to modify 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.
“This modification 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.” The final rule gives States improved flexibility to ensure accurate but limited information is reported to the NICS. The Privacy Rule still permits disclosures that are required by law, and thus would not preempt any state laws requiring disclosure.
This modification of the Final Rule under the HIPAA Privacy Rule, allows certain covered entities permission to disclose limited information to the NICS. “The information that can be disclosed is the limited 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 – that is, only about those who are covered under the pre-existing mental health prohibitor.”
The Administration asserts, “the new modification is carefully and narrowly tailored” in scope to protect public safety while not eroding the physician-patient relationship and ensure that individuals are not discouraged from seeking voluntary treatment. This rule is applicable to a small subset of HIPAA covered entities that either 1) make the mental health determinations that disqualify individuals from having a firearm or 2) are designated by their States to report this information to NICS. The rule does not apply to most mental health treatment providers.
“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.” A person who seeks assistance for mental health problems or obtains mental health treatment is not automatically legally prohibited from having a firearm; nothing in this modification changes HIPAA’s preemption provisions.
“HHS continues to support efforts by the Obama Administration to dispel negative attitudes and misconceptions relating to mental illness and to encourage individuals to seek voluntary mental health treatment. And the Department remains committed to robust enforcement of the civil rights laws that bar discrimination based on disability by entities that receive funding from the Department.”
Source: US Dept of Health and Human Services, Office of Civil Rights, Alert January 5, 2016.