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Executive Action on Gun Control Includes Modification to HIPAA

January 5, 2016
by Heather Landi
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The new rule, which takes effect next month, enables providers to report limited information to the national background check system about the identifies of individuals provided by federal law from owning firearms due to mental health reasons.
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The Obama Administration on Monday unveiled a number of executive actions on gun control, including an amendment to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to enable mental health providers to more easily disclose limited information to the National Instant Criminal Background Check System (NICS).

The Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a final rule, which takes effect next month, removing legal barriers preventing states from reporting relevant information to NICS.

NICS is maintained by the FBI to conduct background checks on people who may be legally disqualified from owning firearms.

The Gun Control Act of 1968 identified several categories, known as prohibitors, of individuals who are prohibited from engaging in the shipment, transport, receipt or possession of firearms, which includes a mental health prohibitor. That prohibitor applies to individuals who have been involuntarily committed to a mental institution for mental illness, 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. The Brady Handgun Violence Prevention Act of 1993 (Brady Gun Law) prevents the transfer of firearms by licensed dealers to individuals who are subject to the same mental health prohibitor.

HIPAA Privacy Rules had prohibited mental health providers and HIPAA covered entities from reporting to NICS the identities of individuals subject to the federal mental health prohibitor.

“The modification announced today better enables the reporting of the identities of these individuals to the background check system, while continuing to strongly protect individuals’ privacy interests,” HHS stated in a release on the website.

However, the new rule specifically prohibits the disclosure of diagnostic or clinical information from medical records or other sources, and any mental health information beyond the indication that the individual is subject to the federal mental health prohibitor.

“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,” HHS stated in the release.

“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.”