HHS OCR Issues Rule Modifying HIPAA In Effort To Fight Gun Violence

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On January 4, 2016, the Department of Health and Human Services  Office for Civil Rights (“OCR”) issued a rule modifying the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule to expressly permit certain covered entities to disclose to the National Instant Criminal Background Check System (“NICS”) the identities of those individuals who, for specific mental health reasons, are prohibited by federal law from having a firearm.

The OCR rule was issued in partial response to the 23 executive actions issued by President Obama on January 16, 2013 for curbing gun violence across the country.  Those actions included a specific commitment to “[a]ddress unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent States from making information available to the background check system.” (See Obama administration plan to curb gun violence titled “Now is the Time” published on January 16, 2013).

The particular barrier the rule is meant to alleviate is the reporting of potentially HIPAA-protected information to NICS.  Mandated by the Brady Handgun Violence Prevention Act of 1993 and launched by the FBI on November 30, 1998, NICS is a database used to determine whether a prospective buyer is eligible to buy firearms.  Individuals are prohibited from buying a gun from a licensed dealer as a result of a “mental health prohibitor” if a background check reveals that they have been:

  • involuntarily committed to a mental institution,
  • judged to be mentally defective or incompetent to handle their own affairs, or
  • found incompetent to stand trial or found not guilty in a criminal case by reason of insanity.

Most of the records in the NICS database come out of the state civil court systems and are not protected by the HIPAA Privacy Rule.  However, many state agencies that have information reportable to NCIS fail to do so as a result of fears of violating HIPAA, which can result in stiff civil penalties.

Under the OCR rule, “covered entities that order involuntary commitments or make other adjudications that subject individuals to the Federal mental health prohibitor, or that serve as repositories of the relevant data, are permitted to use or disclose the information needed for NICS reporting of such individuals either directly to the NICS or to a State repository of NICS data.” 

Thus, mental health providers will now be able to share with NCIS the identities of patients subject to a federal mental health prohibitor that prevents them from shipping, transporting or possessing a firearm.  However, the new rule prohibits mental health providers from sharing any diagnostic or clinical information from medical records or other sources beyond the fact that a person is barred from gun ownership.

The rule has been supported by several patient advocacy groups.  In a letter to OCR last year on a draft version of the regulations, the American Medical Association (“AMA”) said the department had struck “the appropriate balance” between public safety and the privacy of the physician–patient relationship.

The White House Plan “Now is the Time” can be found here

The OCR rule can be found here

Reporter, Stephen Abreu, San Francisco, +1 415 318 1219, sabreu@kslaw.com.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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