January 11, 2016
Area(s) of Interest: HIPAA Licensing & Regulatory Issues Patient Privacy
Last week, the Obama Administration unveiled a number of executive actions to address gun violence in the United States, including an amendment to the Health Insurance Portability and Accountability Act (HIPAA) that would make it easier for mental health providers to disclose the identities of individuals who are disqualified from shipping, transporting, possessing or receiving a firearm.
Both the Brady Handgun Violence Prevention Act of 1993 and the Gun Control Act of 1968 prohibit gun ownership and gun sales to individuals that have been involuntarily committed to a mental institution for mental illness or drug use; found incompetent to stand trial or not guilty by reason of insanity; or otherwise determined by a court to be a danger to themselves or others or unable to manage their own affairs due to mental illness, incompetency, condition or disease.
Up until now, however, the HIPAA Privacy Rule generally prohibited mental health providers and HIPAA covered entities from disclosing patient information to the National Instant Criminal Background Check System (NICS) – a system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on people who may be legally disqualified from owning firearms based on statutorily defined federal “mental health prohibitor” categories.
Under this final rule, certain covered entities with lawful authority to make adjudications or commitment decisions that make individuals subject to the federal mental health prohibitor are permitted to disclose the information to NICS. The information that can be disclosed is limited to demographic and certain minimum necessary information needed for NICS to determine whether a potential firearm recipient is statutorily prohibited from possessing or receiving a firearm.
According to the U.S. Department of Health and Human Services, the modification better enables the reporting of these individuals to the background check system, while continuing to strongly protect individuals’ privacy interests. It gives states improved flexibility to ensure accurate but limited information is reported to NICS.
The new rule is 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.
Click here to read the final rule.
Contact: CMA's legal information line, (800) 786-4262 or firstname.lastname@example.org.