HIPAA Modifications Related to Federal Background Checks for Gun Sales
On January 16, 2013, President Barack Obama announced an initiative to increase the amount of information to which States have access when conducting background checks on individuals buying guns. In addition to other executive actions aimed at decreasing gun violence, the Federal government was charged with determining how to reinforce the National Instant Background Check System (NICS) used to ascertain whether an individual should be barred from purchasing a firearm. As part of efforts to fortify NICS, the Federal government has pledged to “address 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.” This is intended to improving the ability to determine if an individual should be restricted from purchasing or owning a gun for mental health reasons.
With the advent of more stringent HIPAA compliance enforcement, relevant information regarding mental health services relevant to NICS inquiries has often been kept confidential. Surveys of covered providers have shown that many of those in reporting capacities have withheld information regarding prior involuntary mental health hospitalizations. The most cited reasons for this action was fear of being held accountable for breaching HIPAA disclosure regulations and resulting legal action carried out by individuals whose PHI had been disclosed without prior permission. After a careful examination the applicable sections of HIPAA it was concluded that the language used when discussing allowed disclosures was unclear and could be misread. The Department of Health and Human Services (HHS) took on the job of clarifying the associated regulation though it was quickly determined that doing so would necessitate a modification to the HIPAA Privacy Rule.
Following President Obama’s announcement, HHS announced a Proposed Rule Modification (PRM), to clarify the requirements for disclosures made in response to NICS inquiries. The modification would permit covered entities to disclose the identities of individuals seeking to purchase a gun who had been involuntarily committed to mental health facilities. Although it had always been intended that HIPAA rules and regulations would include this stipulation requiring disclosure when information was sought based on Federal statute, provisions for ensuring compliance were unclear. This meant that determining what actions were considered to be obligatory under HIPAA in response to Governmental inquires, were largely left open to interpretation. It is not surprising given the large fines levied for non-compliance, that many covered entities have erred on the side of caution when faced with such requests. However, this has also limited the efficacy of background checks intended to help curb gun violence.
The number of modifications to HIPAA since its inception underscore the importance placed on maintaining privacy for personal health care information. Yet this must also be balanced with public safety. In light of the record number of school shootings involving children, a public outcry for increased gun control has been heard along with equally load opposition to additional regulations perceived to be limiting personal freedom. This battle has been played out in States across the country, recently including the debate related to HIPAA disclosure regulations as set forth in the Privacy Rule. While an announcement from HHS on this matter was scheduled for February 2014, the decision deadline has been extended in order to solicit further comments. At this time, comments will be accepted through the end of March 2014, with a decision to be announced soon thereafter. Those subject to the proposed “mental health prohibitor” would be prevented from shipping, transporting, possessing, or receiving a firearm.