On January 6, 2016, the Department of Health and Human Services issued a Final Rule that modifies the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) Privacy Rule to allow a subset of covered entities to disclose to the National Instant Criminal Background Check System (“NICS”) the names of individuals who are mentally unfit to purchase or possess firearms. The NICS is the federal database listing those who under federal law are prohibited from possessing or receiving firearms. The modification to the HIPAA Privacy Rule applies only to certain covered entities that make mental health determinations that disqualify individuals from having firearms. The Final Rule only allows for limited information to be disclosed to the NICS. Reporting is limited to the disclosure of only the minimum necessary demographic information, such as an individual’s name, date of birth, and gender. Clinical information, such as diagnoses and treatment information is not allowed to be reported. Information about individuals who have been involuntarily committed to a mental institution, have been determined by a lawful authority to be a danger to themselves or others, or lack mental capacity to carry out their affairs will be the subject of these NICS reports, provided safeguards in the Final Rule are followed.
In the Department of Health and Human Services’ press release, it made a point of addressing fears and making it clear that the vast majority of individuals with mental health conditions are not violent and have the right to possess firearms. As such this HIPAA Privacy Rule modification will not impact these individuals and their demographic information. For more information about the HIPAA Privacy Rule modification please go to https://www.federalregister.gov/articles/2016/01/06/2015-33181/health-insurance-portability-and-accountability-act-hipaa-privacy-rule-and-the-national-instant If you have any questions on your obligations under this HIPAA Privacy Rule modification, feel free to contact Donna J. Craig, RN, JD at The Health Law Center, PLC.