The accidents caused by firearms continue to rise in the United States. This week, the federal government has decided to take action to reduce the number of firearms obtained by ineligible individuals. The people who fall into this category of “ineligible” include convicted felons, perpetrators of domestic violence, as well as individuals who suffer from mental health challenges that risk harm to themselves or others. The question then becomes how institutions will properly comply with federal healthcare privacy laws under HIPPA and also meet the objective of these executive orders.
The President has stated that the goal of these new policies in 2016 is to prevent firearms from being obtained by those who could do serious harm. There are three main areas on which the government will focus to achieve this goal:
1.) Increase access by the government to the mental health records of the public to identify more people at risk.
2.) Increase domestic outreach efforts to those at risk.
3.) Improve and expand the National Instant Criminal Background Check System (NICS) of potential purchasers.
Currently, federal funds are being set aside to increase the workforce of the National Instant Criminal Background Check System (NICS) by 50%. This will allow for background checks to be completed more quickly and thoroughly. Many agencies are cooperating with the federal government in order to allow quicker access to records. These agencies include the department of Alcohol, Tobacco and Firearms (ATF), The Departments of Defense, Justice and Homeland Security, The Social Security Administration, and the Department of Health and Human Services. The hope is that with all areas working together, quicker and more complete access to records will enable authorities to keep firearms out of the hands of people who are prohibited from possessing them.
The majority of individuals who fall into the prohibited class are criminal offenders. Their records are public documents that are easily obtained. Thus there are no privacy concerns there for institutions. Several offenders have committed a felony; however, misdemeanor domestic violence is also included and may be part of a record that was once sealed. To provide greater access, the federal government has asked the Department of Health and Human Services to allow it access to patient records of those who are suffering from a mental illnesses which prohibits them from possessing a firearm. The federal government has requested that this information be included in the firearm background checks. Ordinarily since the passage of the Health Insurance Probability and Accountability Act (HIPAA) of 1996, all patients’ medical records are confidential. The Department of Health and Human Services has determined that in order to protect public safety, it will allow institutions to release “limited but necessary information” to the federal government. This is effectively resulting in a relaxation of the HIPPA requirements.
As the details of these changes continue to unfold, institutions should work closely with their legal counsel to parse the language of the new law. This will aid in understanding the meaning of healthcare information that is “limited but necessary.” Legal counsel can work with your institution to help clarify how the medical information is to be provided, how far back this information will go, and address other key questions to remain compliant. Lastly, institutions will want to keep the pendulum in balance. They will need to comply with these regulations yet also brainstorm ways to not discourage those who suffer from mental illness. Contact your legal counsel for additional guidance and support in this area.
“FACT SHEET: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer.” The White House. The White House, 04 Jan. 2016. Web. 05 Jan. 2016.