The Department of Health and Human Services released new regulations January 6 that seek to clarify the applicability of the Health Insurance Portability and Accountability Act when states submit names of people with mental illness to the federal firearm database.
“We continue to believe that the creation of a limited express permission in the HIPAA Privacy Rule to use or disclose certain information relevant to the Federal mental health prohibitor for (National Instant Criminal Background Check System) purposes is necessary to address barriers related to HIPAA and to ensure that relevant information can be reported for this important public safety purpose,” the rule states. “Furthermore, this narrowly tailored rule appropriately balances public safety goals with important patient privacy interests to ensure that individuals are not discouraged from seeking voluntary treatment.”
HIPAA, the nation’s preeminent health care privacy law, generally prohibits disclosure of individual’s health care records.
For years, HIPAA concerns have deterred states from supplying mental health records to the FBI, which uses them to assemble the NCIS, a national registry of individuals barred by federal law from obtaining firearms. Along with felons and domestic abusers, federal law prohibits people who have been involuntarily committed or otherwise found to be “mentally defective” from obtaining firearms.
In January 2013, the Obama Administration announced its intent to implement clarifying regulations, releasing proposed regulations the following January. The final rule, which adopts the rule as proposed, seeks to strike a balance between encouraging providers to provide the necessary data to strengthen the NICS, while protecting a patient’s clinical or diagnostic information.
As clarified in the rule, there is “no broad permission for treating providers to report information about their patients to the NCIS.” Rather, mental health information can only be submitted when an individual is “involuntarily committed or determined by a court, board, commission or other lawful authority to be a danger to self or others, or unable to manage his or her own affairs due to a mental illness or condition.”
Moreover, the rule permits only “limited disclosures,” meaning the person’s name, sex, date of birth, Social Security number, and the record documenting that the individual has been involuntarily committed or disqualified from using firearms due to mental illness.
“No one’s psychotherapy notes are going to end up being disclosed because of this rule,” Andrew Sperling, a lobbyist for NAMI, told the New York Times.
Other organizations, such as the Legal Action Center, previously expressed strong reservations about the rule, on the basis that it could deter patients from seeking treatment, according to Modern Healthcare.
The rule goes into effect February 5.
“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,” the HHS said in a news release. “An individual who seeks help for mental health conditions and/or receives mental health services is not automatically legally prohibited from having a firearm; nothing in this final rule changes that.”