On January 4, 2016, the Obama administration rolled out a number of executive actions addressing gun control, one of which impacts the Health Insurance Portability and Accountability Act (HIPAA). To this end, the Department of Health and Human Services (HHS) issued a final rule narrowly modifying the HIPAA Privacy Rule to allow certain covered entities to share information on mentally unfit patients with the National Instant Criminal Background Check System (NICS), a system maintained by the FBI to determine whether an individual is prohibited from firearm possession.

The NICS and Mental Health Prohibitors

The NICS was established by the the Brady Handgun Violence Prevention Act of 1993 (Brady Law) and is maintained by the FBI. The Brady Law disqualifies individuals from possessing or receiving firearms as a result of restrictions contained in either the Gun Control Act of 1968 or state law. The Gun Control Act identifies several categories (known as “prohibitors”) of individuals who are prohibited from shipping, transporting, receiving, or possessing firearms.

 

The mental health prohibitions include:

• individuals who are involuntarily committed to a mental institution;
• individuals found incompetent to stand trial or not guilty by reason of insanity; and
• individuals determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or unable to manage their own affairs due to subnormal intelligence, mental illness, incompetency, condition, or disease.

However, many states cited to HIPAA in declining to report mentally unfit individuals that were prohibited from possessing firearms to the NICS. In order to increase reportings to the NICS, the HHS issued this final rule.

The Final Rule

Under the final rule, only covered entities that order involuntary commitments or make adjudications that subject individuals to the mental health prohibitors, or that act as state repositories of information for NICS reporting purposes are affected; any other covered entity must receive the patient’s authorization.

The rule specifies that the only information that can be disclosed to the NICS is the patients name and the fact that they are barred from possessing a firearm. As stated in the final rule, “underlying diagnoses, treatment records, and other identifiable health information are not provided to or maintained by the NICS.”

These changes take effect on February 5, 2016. Read the final rule by clicking here.