HIPAA May Be Modified for Gun Safety

The U.S. Department of Health and Human Services (HHS) announced in January a proposed modification to the HIPAA (Health Insurance Portability and Accountability Act) Privacy Rule that would allow certain disclosures of personal health information to support background checks connected with gun purchases. The proposed rule change would permit certain HIPAA-covered entities — but not most health care providers — to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals whose mental health issues would prohibit them from owning a firearm under federal law.

Under federal law, individuals are not permitted to own or receive firearms if they have been:

  • Involuntarily committed to a mental institution for reasons such as mental illness or drug use
  • Found incompetent to stand trial or not guilty by reason of insanity
  • Adjudicated by a court, board, commission or other lawful authority to be a danger to themselves or others or unable to manage their own affairs, “as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease”

HHS developed the proposed rule in response to executive actions announced by President Obama shortly after the massacre at Sandy Hook Elementary School. Among the specified goals of the executive actions was the removal of unnecessary legal barriers, particularly related to HIPAA that prevented states from making information related to individual mental health available to the background check system

During the initial period for public comment, many health care providers expressed concerns regarding the possible adverse consequences the rule change could have on the patient–provider relationship. In addition, providers suggested that the rule might discourage those in need of help from seeking treatment, fearing their doctor might disclose otherwise confidential information. In response, HHS narrowly defined the permission to disclose so that it would not apply to the majority of treating health care providers, but instead to entities such as courts that perform formal involuntary commitments and adjudications. The disclosures would be limited to the minimum information required to identify the individual, and would not include any clinical or diagnostic information.

It is vitally important for health care providers to be aware of their responsibilities and restrictions under the HIPAA laws. Seek the advice of a knowledgeable health care attorney to ensure your practice in is compliance at all times.

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Posted in: Compliance