Gun safety: HIPAA change allows providers to report on some mentally ill patients


As part of the Obama administration’s efforts to reduce gun violence, physicians and certain other health care providers will be permitted to disclose to the National Instant Criminal Background Check System (NICS) the identities of mentally ill patients who could be a danger to themselves or others.

NICS is the federal system by which firearms sellers determine whether a potential buyer has a criminal record or is otherwise ineligible to purchase firearms.

The change – a modification to the HIPAA Privacy Rule – was published in the Federal Register on Jan. 5, the same day President Obama announced new executive actions that aim to expand background checks for firearm purchases and increase federal enforcement of gun laws.

The HIPAA modification, which takes effect in February, makes clear that certain covered entities are permitted to disclose information to the NICS, including the minimum identifying information necessary about patients who have been involuntarily committed to a mental institution or who have otherwise been determined by a lawful authority to be a danger to themselves or others.

The modification is tailored to preserve the patient-provider relationship and ensure that patients are not discouraged from seeking voluntary treatment, according to officials at the U.S. Department of Health & Human Services.

The rule applies only to a small subset of HIPAA-covered entities that either make mental health determinations that disqualify patients from having firearms or are designated by states to report the information to NICS. The modification does not apply to most treating health providers and does not permit reporting of diagnostic, clinical, or other mental health treatment information.

The scope of disclosed information under the final rule is quite limited, according to Gerald “Jud” E. DeLoss, a Chicago health law attorney and cybersecurity expert. Disclosure is restricted to limited demographic data and other information. In addition, state statutes or regulations regarding mental health information disclosure that are more stringent than HIPAA would still apply regardless of the final rule, he added.

“Further, while the final rule would apply to mental health information, substance abuse treatment information held by a federally assisted program covered under the confidentiality regulations set forth under 42 CFR Part 2 would still be protected,” Mr. DeLoss said in an interview.

The HIPAA change finalizes a 2014 proposed rule that was recommended as part of President Obama’s plan to strengthen the national background check system and remove unnecessary legal barriers that prevent states from making data available to the background check system.

“Due to a history of underreporting, the NICS has lacked complete information about all individuals who are prohibited by federal law from possessing or receiving a firearm,” Jocelyn Samuels, director of the HHS Office for Civil Rights, wrote in a blog post. “The modification announced today better enables the reporting of the identities of prohibited individuals to the background check system and is an important step toward improving the public’s safety while continuing to strongly protect individuals’ privacy interests.”

Psychiatrist Dr. Daniel J. Carlat of Tufts University, Boston, said that he does not see the new rule posing a major threat to patient confidentiality.

“HIPAA already allows us to share clinical information with law enforcement under certain circumstances where a patient is thought to pose some type of danger,” Dr. Carlat said in an interview. “This new rule adds another limited instance to that list. This is certainly something that we would want to add to the HIPAA Privacy notices that we show our patients so that they are fully aware of this potential breach of confidentiality.”

Dr. Jane M. Orient, executive director of Association of American Physicians and Surgeons, said that she disagrees. She believes the modification will be harmful to both doctors and patients.

“My impression is that this supposedly narrow intrusion will get wider and wider, and will inevitably damage the patient-physician relationship,” she said in an interview. “If a person has been adjudicated by law to be ineligible to possess a firearm, then the legal authority should report. The NICS is not going to do much good anyway – if a person is an imminent danger, he needs to be restrained, not put into a database.”

In addition to the HIPAA rule change, President Obama unveiled several other initiatives to combat gun violence and asked Congress for $500 million to increase mental health care service capacity and the behavioral health workforce.

The President outlined stronger efforts by federal agencies to monitor and prevent illegal gun sales. This includes an overhaul of NICS and the hiring of 230 additional FBI examiners to process background checks. The President’s budget for fiscal 2017 will include funding for 200 new Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents and investigators. The ATF plans to dedicate $4 million and additional personnel to enhance the National Integrated Ballistics Information Network (NIBIN), a database that links violent crimes across jurisdictions.