Posted on 01/06/2016 10:30:32 AM PST by MarchonDC09122009
HIPAA Privacy Rule Modified for Gun Background Checks
http://www.healthcareinfosecurity.com/hipaa-privacy-rule-modified-for-gun-background-checks-a-8780
HIPAA Privacy Rule Modified for Gun Background Checks But Most Providers Won't Be Affected by the Change Marianne Kolbasuk McGee (HealthInfoSec) • January 5, 2016 Jocelyn Samuels, Director of OCR
A modification to the HIPAA Privacy Rule designed to help identify those who are prohibited, for specific mental health reasons, from having a firearm will have little impact on most healthcare providers because it's so narrow in scope.
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The change, which is slated to take effect next month, permits only a small subset of HIPAA covered entities to disclose to the National Instant Criminal Background Check System the identities of individuals who are already prohibited by federal law from having a firearm.
"Specifically, this final rule gives states improved flexibility to ensure accurate but limited information is reported to the NICS," said Jocelyn Samuels, director of the Department of Health and Human Services' Office for Civil Rights in an announcement about the change posted on the HHS website.
NICS is the federal database that stores information about individuals prohibited by law from possessing firearms. Those include felons, those convicted of domestic violence and individuals involuntarily committed to a mental institution or found to be a danger to themselves or others, or unable to manage their affairs due to a mental health condition, according to HHS.
The final rule modification is slated to be printed on Jan. 6 in the Federal Register. The rule change takes effect on Feb. 5. Gun Control Measures
The modification to the HIPAA Privacy Rule comes as President Obama on Jan. 5 announced a series of executive actions in an effort to reduce gun violence. The actions are designed to make more gun sales subject to background checks and beef up enforcement of existing laws.
The FBI is overhauling its background check system to "make it more effective and efficient," the White House noted. Also, the Social Security Administration will begin the rulemaking process to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons.
In explaining why the change to the HIPAA Privacy Rule was needed, the White House says: "Although states generally report criminal history information to NICS, many continue to report little information about individuals who are prohibited by federal law from possessing or receiving a gun for specific mental health reasons. Some state officials raised concerns about whether such reporting would be precluded by the HIPAA Privacy Rule."
Samuels said the rulemaking "makes clear that, under the Privacy Rule, certain covered entities are permitted to disclose limited information to the NICS. The information that can be disclosed is the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs."
The rule does not allow reporting of diagnostic, clinical, or other mental health treatment information, Samuels stressed.
"The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment," she said. "This rule applies only to a small subset of HIPAA covered entities that either make the mental health determinations that disqualify individuals from having a firearm or are designated by their states to report this information to NICS. The rule does not apply to most treating providers." Limited Impact
Because of its narrow scope, the change to the HIPAA Privacy Rule will have "very limited impact," says privacy attorney Adam Greene of the law firm Davis Wright Tremaine.
"Entities within the criminal justice system report to NICS when someone has been involuntary committed or received a certain adjudication related to mental health," he explains. "Healthcare providers, health plans and healthcare clearinghouses do not have reporting obligations under NICS. Rather, a small number of government covered entities may be part of agencies that make reports under NICS, and there was confusion related to whether HIPAA blocked those agencies from reporting to NICS. This rule clarifies that HIPAA does not interfere with those agencies reporting to NICS."
But one privacy advocate is concerned the modification could have negative consequences. "The effect will be to discourage even more people from seeking mental health treatment," says Deborah Peel, M.D. , a practicing psychoanalyst and founder and chair of the advocacy group Patient Privacy Rights. "The language HHS uses cannot easily be understood by the public - they have no idea who 'HIPAA covered entities' are for example.
"So many people are already wary of seeking treatment if their doctors or health professionals use electronic records, which they know are likely to be breached and will be widely disclosed," Peel says. "This rule will certainly discourage gun owners ... from seeking mental health treatment; all that they will hear is that mental health treatment can [land] them onto a list that goes to the government and might prevent them from buying firearms. The idea that a 'narrow subset' will be affected is simply too complex a message for the public to hear - all they will know is that people seeking mental health treatment will be reported to a federal database and limit their rights." Lengthy Process
The rule change has been in the making for almost two years. On April 23, 2013, the Federal Register published OCR's advance notice of rulemaking, seeking public input on how HIPAA may prevent some states from reporting information to NICS and ways these barriers can be addressed without discouraging mental health patients from seeking treatment (see Amending HIPAA for Background Checks).
Among public comments submitted, some mental health provider organizations urged that the modification of the rule be limited.
"The patient-physician relationship is an integral part of mental illness treatment and should be protected," wrote a representative from the Psychiatric Society of Delaware. "Physicians and other treating providers should not be involved in NICS reporting, and the PSD agrees with narrowly defining the scope of HIPAA-covered entities with permission to report to NICS to only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes."
When have you had enough? When will you exercise your first ammendment rights (March on gov't), now that you're losing your second ammendment rights?
sounds like Obama will never be able to buy a firearm
Chipping away bit by bit.
Hope no one has any crazy relatives
“to include information in the background check system about beneficiaries who are prohibited from possessing a firearm for mental health reasons”.
Doctors turned into rats for the government. Sounds like a good plan. /sarc
I could tell at the onset that both HIPAA and HITECH were bad, evil, and intended from the outset to control and tyrannize others. Along with REAL ID, and myriad other unconstitutional excesses, there is no possibility for salvation of any of them. They must be destroyed as inherently un-American.
Obama can change whatever he wants whenever he wants and no on is going to stop him in Congress.
See my tagline:
When is our next March on DC? When have we had enough?
"REAL ID" will morph into a national ID card system ever so slowly over years and years. You won't even have access to a gas pump, school, bank, or mall in 2020 unless you scan your national ID card.
Be aware that health care providers routinely ask their patients to sign waivers allowing limited disclosure of information that is otherwise protected under HIPAA. I would not be surprised if they starting slipping into the waiver a statement that authorizes the disclosure of disqualifying information to NCIS.
Good thing we elected lesser evil republicans instead of principled conservatives. Afterall, actions have no consequences.
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Give it a rest Norm. If you had your way there would be NO Republicans in office because none of them are good enough.
We’d have a House and Senate full of Democrats.
In the Shadowrun universe, they call that a SIN- a System Identification Number.
You GOT a house and senate full of democrats.
So no. I won’t give it a rest. Deal with reality.
Of course, blacks, muslims and illegal immigrants will be exempt just in case voter ID laws get implemented.
The gov't already knows who the bat**** crazies are, because if individuals are bat**** crazy, they can't hold a job -- or at least a private sector job -- and so they must be either collecting gov't benefits or living in a cardboard box. If Gov't Agency A would talk to Gov't Agency B, they could prevent most bat**** crazies from buying guns with the non-HIPAA information that they already have now. They could even add a line to the disability application, so beneficiaries voluntarily consent to disclosure.
Obama's EO is likely to result in 1.) thousands of mildly or moderately mentally ill patients becoming even more reluctant to seek mental health care and 2.) thousands of completely harmless patients being reported to the FBI. I don't think that the WH could have designed a worse EO if they wanted to -- so maybe Obama did.
Is it legal to change HIPAA for mental health reporting?
The whole deal years ago was to mainstream the “mentally ill”, taking them out of institutions and giving them full civil liberties. To assure that, the reporting of ANYTHING covered by HIPAA has to be kept to strictly confidential channels, even relating to sharing anything with any law enforcement agency.
I see a great internal contradiction.
Was there a principled conservative on the ballot last election? One who had a chance of winning.
States: resist, reject and nullify these unconstitutional federal acts which by definition are acts of tyranny. The Ninth and Tenth Amendments as well as the Supremacy Clause confirms your right and your DUTY to do so.
States: STAND UP FOR YOUR CONSTITUTIONAL SOVEREIGNTY AND AGAINST FEDERAL TYRANNY!!!
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