Health Information Management

Modifications to HIPAA bolster firearm background checks

HIM-HIPAA Insider, January 11, 2016

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HHS published a final rule January 6 that increases the amount of identifying information that can be reported to the National Instant Criminal Background Check System (NICS). This information concerns individuals who are prohibited by federal law from possessing a firearm due to specific mental health reasons. Laws prohibiting these individuals from possessing firearms already existed, but reporting the information was difficult due to certain HIPAA restrictions. Although reporting of complete and accurate information is improved by this modification, individuals’ privacy will still be strongly protected, HHS said in a statement. The final rule is effective February 5.

The modification clarifies that certain covered entities that process and store mental health information are allowed to disclose limited information to NICS. Previously, the way this information was collected and stored in certain states created limitations on properly reporting the information to NICS, Mental Health America President and CEO Paul Gionfriddo said in a statement. In some states, this information is held by covered entities. These covered entities do not release mental health information in response to NICS requests because it was not clear whether these disclosures are permissible. HIPAA itself has not changed and new restrictions have not been placed on gun ownership, Gionfriddo said, and the modifications make a clear and careful distinction between those who have mental illnesses and those who have mental illnesses as well as violent tendencies. The latter group is already prohibited from possessing firearms under the federal “mental health prohibitor” as part of 1993’s Brady Handgun Violence Prevention Act and the 1968 Gun Control Act. The Brady Law allows the NICS to enforce these restrictions. The NICS, which is managed by the Federal Bureau of Investigation, maintains a database that collects certain identifying information, including applicable mental health information, about individuals forbidden to possess firearms.

Individuals subject to the mental health prohibitor are those who have been involuntarily committed to a mental institution or found incompetent to stand trial or not guilty by reason of insanity. The prohibition also applies to individuals who have been determined by a court or other lawful authority to be a danger to themselves or others or have been declared incompetent. The information disclosed to NICS will be limited to demographic information and certain other information, but will not include medical records or any mental health information beyond whether the individual is subject to the prohibitor.

The Bureau of Alcohol, Tobacco, Firearms and Explosives defines categories of “prohibited persons” who are forbidden to transport, possess, receive, or ship firearms as part of the Gun Control Act, including those who:

  • Are under indictment or information in any court for a crime punishable by imprisonment for a term of more than one year
  • Have been convicted of a crime punishable by a prison term of more than one year
  • Are fugitives
  • Unlawfully use or are addicted to controlled substances
  • Have been involuntarily committed to a mental institution or declared incompetent by a lawful authority
  • Are undocumented immigrants
  • Have been dishonorably discharged
  • Have renounced their citizenship
  • Are under a restraining order resulting from harassing, stalking, or threatening an intimate partner or child of an intimate partner
  • Have been convicted of a domestic violence crime

This modification is part of President Obama’s plan to address gun violence, announced January 5. The plan also includes $500 million to improve access to mental health care, as well as rules and measures to strength background checks and access to criminal records and mandate the reporting of stolen shipments of firearms. Changes to HIPAA to allow more complete reporting of information to the NICS were first proposed January 2013, as part of President Obama’s executive action plan to reduce gun violence.

Americans with mental illnesses are more likely to be the victims of violence than the perpetrators of it, HHS makes clear in their statement. The American Psychological Association applauded the administration’s efforts to protect the rights and privacy of individuals with mental illnesses while bolstering existing laws that affect the minority of citizens who have demonstrated a propensity to commit violent acts.

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