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.