Public Safety Calls for a HIPAA Proposal
Tragic events featuring a mentally unstable gunman who opens fire on innocent people are a sad concern and public safety issue for Americans, today. The U.S. Department of Health & Human Services (HHS) has addressed this public safety concern in a proposed rule (45 CFR Part 164) that permits personal health information (PHI) of individuals with unstable mental health to be disclosed to the National Instant Criminal Background Check System (NICS) without that individual’s authorization. Specifically:
… to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal ‘‘mental health prohibitor’’ that disqualifies them from shipping, transporting, possessing, or receiving a firearm.
According to the HHS proposal, individuals who would be subject to the federal “mental health prohibitor” are those:
- Involuntarily committed to a mental institution;
- Found incompetent to stand trial or not guilty by reason of insanity;
- Have been determined by a court, board, commission, or other law authority to be a danger to themselves or others; or
- Who lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease.
Under the proposed rule, PHI will be sent directly to NICS in a limited capacity (no medical records or clinical information) by the HIPAA–covered entity. HHS wants to balance the individual’s right to privacy with public safety concerns. As HIPAA laws stand now, mental health information can’t be reported to NICS to help manage firearm violence.