HHS seeks comment on HIPAA rules and firearm background checks

HIPAA thought to discourage some states from reporting individuals with mental health conditions

After last year’s mass shootings in Colorado and Connecticut, the Obama Administration has been looking for ways to address gun violence, either through new legal reforms or by working with existing policy, and one option is to clarify HIPAA provisions that may be preventing the reporting of mental health information to the national background check system.

Two days after the U.S. Senate voted down a bill that would have closed background check loopholes and limited some automatic firearm sales, the Department of Health and Human Services announced it was assessing and planning to address aspects of the Health Insurance Portability and Accountability Act that are thought to discourage some states or covered entities from reporting individuals with mental health conditions and considered a potential danger to the National Instant Criminal Background Check System, or NICS.
 
[See also: HHS makes 'sweeping' changes to HIPAA.]
 
Now, the agency is seeking public comment on how mental health information and findings of potential danger are currently treated by state agencies and covered entities, whether HIPAA is perceived as a barrier and how the mental health community would approach clarification to the federal “mental health prohibitor” — the provision of the 1993 Brady Handgun Violence Prevention Act that bars the sale of firearms to individuals involuntarily committed to a mental health clinic or found to be dangerous because of a mental health condition.
 
The agency’s effort “is based on an understanding that the vast majority of people struggling with mental illnesses are not violent, and in fact they are more likely to be the victims than perpetrators of a crime,” Leon Rodriguez, director of HHS Office for Civil Rights, wrote on the agency’s website.
 
[See also: Stanford reports fourth HIPAA breach.]
 
But to the extent that a small fraction of people with mental or behavioral health problems have the potential to be violent, Rodriguez said it was important to clarify that HIPAA does permit covered entities and states to report individuals with mental illness found to be a potential public danger to the NICS, and that the database does not disclose the reason why someone is prohibited from purchasing a weapon when gun sellers run a background check. (Convicted felons and individuals convicted of domestic violence are among others barred from buying firearms.)
 
Rodriguez also noted that the Government Accountability Office found, in a 2012 report, that 17 states had submitted fewer than 10 records of individuals prohibited from gun ownership for mental health reasons to the NICS, which is managed by the Federal Bureau of Investigations, between 2004 and 2011.
 
Examining FBI data, the GAO did find that the number of firearm transactions denied based on mental health records increased from 365 (0.5 percent of 75,990 total purchase denials) in 2004 to 2,124 (1.7 percent of 123,432 purchase denials) in 2011. But of the 800 percent increase in mental health records provided to NICS database by states between 2004 and 2011, the GAO found, the “progress largely reflects the efforts of 12 states, and most states have made little or no progress in providing these records.”
 
[See also: Get set: New HIPAA has teeth.]
 
HHS and the Obama Administration, meanwhile, are looking to clarify HIPAA provisions on mental health and public danger reporting, and are also touting the expansion of access to behavioral healthcare under the Affordable Care Act.