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A proposed change to HIPAA might help healthcare providers alert law enforcement agencies that a person’s mental illness should be considered when allowing a gun purchase, an action that is made difficult and sometimes impossible by the convergence of HIPAA and state laws.
The Department of Health and Human Services (HHS) recently issued a notice of proposed rulemaking to modify HIPAA. The proposal is to expressly permit certain HIPAA-covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a federal "mental health prohibitor" that disqualifies them from shipping, transporting, possessing, or receiving a firearm. (The proposal is available online at http://tinyurl.com/kg3ad8m.) The NICS is a national system maintained by the FBI to conduct background checks on persons who might be disqualified from receiving firearms based on federally prohibited categories or state law.
Among the persons subject to the federal mental health prohibitor are individuals who:
• have been involuntarily committed to a mental institution;
• have been found incompetent to stand trial or not guilty by reason of insanity;
• or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.
Under this proposal, only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, would be permitted to disclose the information needed for these purposes.
HIPAA does not specifically prohibit releasing mental health information to the NICS, but it defaults to state laws that might be more restrictive, explains Lee Lasris, JD, a healthcare law attorney with the Florida Health Law Center in Davie. The amendment is intended to make clear that HIPAA affirmatively permits — rather than simply not prohibiting — disclosure to the NICS, but Lasris says that might not be enough.
More restrictive state law that prohibits the disclosure still will trump HIPAA unless Congress passes a law saying otherwise, Lasris says.
"The amendment will have an impact only in states that do not have more restrictive laws. They will have a clear statement from HHS that HIPAA does not prevent this reporting, and that may be helpful," Lasris says. "In states with more restrictive laws, their solution will be to work with the state legislatures to effect those changes."