The New HHS Rule on HIPAA and its Effect on Gun Reform

In the wake of the attack on San Bernardino last year, President Obama announced a list of executive actions designed to reduce the growing epidemic of gun violence. The executive actions do not include any new regulations or executive orders, but require those gun retailers that are “engaged in the business” of selling firearms to obtain a license and conduct background checks. One aspect of the president’s plan includes an increase in funding for mental health treatment and coordination between mental health treatment and background check systems. This aspect of the President’s executive actions has an interesting impact on the Health Insurance Portability and Accountability Act (HIPAA).  

The HIPAA privacy rule was enacted with the purpose of protecting the confidentiality of electronic health information. For the longest time, HIPAA prevented states from having the information that healthcare providers held with regards to individual’s mental health from being disclosed to the National Instant Criminal Background Check System (NICS). NICS is maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on disqualified individuals. HIPAA’s rule against disclosure of mental health information changed, however, on January 6, 2016, when the Department of Health and Human Services (HHS) issued a final rule permitting select health care providers to disclose the mental health information of individuals to NICS. The new rule is limited to disclosure of only those individuals that are subject to the mental health prohibition, which includes individuals who are involuntarily committed to mental health institutions, are incompetent to stand trial or not guilty by reason of insanity, are determined by a lawful authority to be danger to themselves or others, and those who lack capacity to manage their own affairs due to an illness, condition, or disease. The modification of a crucial element of the HIPAA law raises the issue of how to balance the need for gun reform with concerns related to the privacy of patients’ health.

Those opposed to the new rule state that it creates stereotypes about certain behavioral health patients because their mental illness is linked with violence. Others argue that the new rule puts a strain on the patient-clinician relationship because patients that are in fear of being stigmatized can no longer be assured that the privacy of their mental health conditions will be protected. Such a concern is worrisome because it may deter individuals that are suffering from mental health conditions from seeking treatment. This deterrence is influenced by fear that if patients have their mental health condition disclosed to NICS, they will be deprived of their second amendment right.

Those that support the rule indicate that its opponents’ arguments are not justified given the limited nature of the rule. The law, for example, does not apply to most health care providers. Only those providers who: 1) order involuntary commitments or 2) make other adjudications that subject individuals to the federal mental health prohibitor, or 3) serve as repositories of relevant data are permitted to disclose mental health information to NICS. This essentially limits the providers to some state agencies, boards, and lawful entities outside of the courtroom.  Furthermore, the new law restricts the information disclosed to only that which is related to being subject to the mental health prohibitor and prevented from owning, shipping, or transporting guns. Because the new rule is limited in scope, supporters argue it strikes a balance between scratching the surface of infringing on the privacy of patients’ health information, and the growing need for gun reform and public safety. By achieving this balance, supporters believe that they have not infringed upon the privacy of patients health information so gravely as to harm the preservation of the patient-provider relationship.

HHS’s modification of HIPAA sheds light on the importance of health in the broader debate that takes place on gun reform. The new rule, influenced by President Obama’s executive actions, are a step towards gun reform, but these policy initiatives are coupled with concerns about privacy interests and worries that the initiatives are not enough to sufficiently reduce gun violence. In the continuing debate surrounding gun reform, more policy proposals will come forth, but one thing is certain; health will always be an important factor in addressing gun violence.​ 

Faizan A. Khan is a second year law student at DePaul University College of Law. Mr. Khan graduated cum laude from DePaul University with a Bachelor of Arts in Political Science and minor in Economics. He is a member of DePaul's Health Law Institute and will complete his J.D. in 2017.