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HIPAA Change Permits Mental Health Reporting to Background Check System

The Department of Health and Human Services has modified the HIPAA Privacy Rule to permit certain covered entities to disclose to the FBI’s National Instant Criminal Background Check System the identities of individuals who are prohibited from having a firearm, for reasons related to mental health.

Under the Privacy Rule modification, certain covered entities are now permitted to disclose limited information to the National Instant Criminal Background Check System (NICS), which reviews criminal records and other prohibiting data to determine whether federally licensed firearms dealers can legally transfer a gun to a prospective purchaser.

Office for Civil Rights Director Jocelyn Samuels made the announcement on Monday. According to Samuels, the information that can be disclosed to NICS 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 who lack the mental capacity to manage their own affairs.

Although states have generally reported criminal history information to NICS, many report little information about individuals prohibited by federal law from possessing or receiving a gun for specific mental health reasons.

“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,” wrote Samuels in a blog. “Specifically, this final rule gives states improved flexibility to ensure accurate but limited information is reported to the NICS.”

The OCR head argued that the HIPAA Privacy Rule change is “carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment,” emphasizing that the 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.”

Congress in 1993 mandated the creation of NICS under the Brady Handgun Violence Prevention Act to implement instant background checks on those trying to buy handguns and long guns.

“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,” Samuels wrote. “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.”

Two years ago, OCR published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to modify the HIPAA Privacy Rule. In response, the American Medical Association said it believed the agency struck the appropriate balance in the between protecting public safety and preserving the patient-physician relationship by narrowly defining the scope of who can be reported to the NICS and by which HIPAA-covered entities.

However, Deborah Peel, MD, founder and board chairman of Patient Privacy Rights, believes the problem with this approach is that it further stigmatizes mental illness and, as a result, fewer people will be willing to seek treatment for mental illness—on top of the already skyrocketing numbers of people who hide health information, and delay or avoid treatment because of lack of trust in health IT.

The final HIPAA Privacy Rule modification was announced on Monday, the same day President Obama met with Attorney General Loretta Lynch at the White House to discuss options for reducing deaths and injuries caused by firearms. In a New Year’s address, Obama made fighting the “epidemic of gun violence” a resolution for 2016, calling it a major piece of “unfinished business” for his administration.

As part of its new executive actions to reduce gun violence, the Obama administration is proposing a new $500 million investment to help engage individuals with serious mental illness in care, as well as improve access to care by increasing service capacity and the behavioral health workforce.

“The real problem is that the majority of people with mental illnesses, including addiction and substance abuse, are ‘treated’ via incarceration in U.S. jails, which are now the nation's largest psychiatric hospitals,” says Peel. “The U.S. has criminalized mental illness and addiction, wreaking harms on families and children. We pay prisons, not doctors, to treat people with serious mental illnesses. Treatment outside jails is nearly nonexistent. The percentage of the U.S. health dollar spent on mental illness treatment by health professionals is 1 to 2 percent. We have replaced the mental health hospitals with county jails, which are more costly with poorer outcomes.”

The American Psychiatric Association issued a statement supporting Obama’s executive actions.

“We welcome the announcement from President Obama to make needed investments in mental health and curb the epidemic of gun violence in our country,” said APA President Renée Binder, MD. “Gun violence is a public health problem and needs to be addressed as such. We support the president’s efforts to expand background checks, propose policies that respect physician-patient confidentiality, and increase funding for mental health services by $500 million. We will work with Congress to make that funding proposal a reality, as we also work with allies in Congress who are championing comprehensive mental health reform.”


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