FHIT: HHS Seeks To Amend HIPAA To Strengthen MH Background Checks

HHS Seeks To Amend HIPAA To Strengthen Background ChecksBy Susan D. Hall FierceHealthIT April 23, 2013

Though a Senate bill to expand background checks on firearms sales was defeated last week, the U.S. Department of Health & Human Services is examining how HIPAA regulations may keep states from reporting dangerous mental patients to a database used in background checks.

The HHS Office for Civil Rights has issued an advanced notice of proposed rulemaking that seeks public input on how the privacy regulations prevent reporting to the National Instant Criminal Background System (NICS). OCR is looking to address these barriers without discouraging mental health patients from seeking treatment, reports HealthcareInfoSecurity.com.

"In particular, we are considering creating an express permission in the HIPAA rules for reporting the relevant information to the NICS by those HIPAA-covered entities ..." the notice says.

NICS is designed to keep guns out of the hands of felons, those involuntarily committed to a mental institution, those deemed a danger to themselves or others and those prohibited by law from possessing firearms.

However, a 2012 Government Accountability Office report found that 17 states had each submitted fewer than 10 reports based on mental health records, according to the notice.

"While this background check system is the most efficient and effective way to keep guns out of the hands of dangerous individuals, it is only as effective as the information that is available to it," HHS said in a statement.

It stressed that in background checks, NICS reports solely whether the would-be buyer should be approved or denied--no medical information is disclosed, according to The Hill's Healthwatch.

In the aftermath of the Sandy Hook school shooting, physician professional societies and medical journals made pledges to put more time and effort into addressing mental illness and its link to gun violence.

In February, then-FierceHealthcare Editor Karen Cheung-Larivee dinged the president after his State of the Union address for mentioning "guns" eight times in support of stricter controls, but not focusing on mental health care as part of the solution.

The U.S. Department of Veterans Affairs, meanwhile, which has been at the forefront of providing remote mental health services, was criticized along with the U.S. Department of Defense last month in an Institute of Medicine report for failing to integrate their systems and failing to track the effectiveness of their mental health interventions.

To learn more: - find the notice (.pdf) - check out the statement - read the HealthcareInfoSecurity.com article - find The Hill's Healthwatch piece

http://www.fiercehealthit.com/story/hhs-seeks-amend-hipaa-strengthen-background-checks/2013-04-23#ixzz2RNZqjzbM ------------ HHS Requests Comment On HIPAA's Role In Mental Health Reports By Patrick Ouellette HealthIT Security April 23, 2013

With intent to ascertain whether HIPAA truly is an obstruction to accessing mental health patient data to enter into the National Instant Criminal Background Check System (NICS) for gun purchases, the Department of Health and Human Services (HHS) issued a notice of proposed rulemaking<https://s3.amazonaws.com/public-inspection.federalregister.gov/2013-09602.pdf> in the Federal Register today. HHS wants comment from states and major stakeholders to get a clearer understanding of whether HIPAA covered entities are able to properly release required information about mental health patients to NICS.

HHS has the difficult task of weighing public safety goals against mental health individuals' privacy interests, as a drastic move could dissuade these patients from looking for treatment. NICS should ideally be a comprehensive database that has detailed information on specific individuals who shouldn't own firearms and among the questions at hand is whether there should be special permissions for mental health data access. NICS only contains names of individuals ineligible for gun purchases and certain other identifying information, such as their dates of birth, as well as codes for the submitting entity and the "mental health prohibitor" label. Otherwise, no information such as underlying diagnoses or treatment records would be part of the NICS record.

Individuals in the mental health prohibitor category are not HIPAA-covered entities and cannot legally purchase a firearm because they've "been involuntarily committed to a mental institution, have been found incompetent to stand trial or not guilty by reason of insanity, or otherwise have been determined through an adjudication process to have a severe mental condition resulting in the individuals presenting a danger to themselves or others or being unable to manage their own affairs." But state law complicates things, as sometimes involuntary commitments or mental health adjudications are ordered by state agencies, boards, commissions, or other lawful authorities outside the court system.

At this time, we have insufficient data regarding to what extent these State agencies, boards, commissions, or other lawful authorities that order involuntary commitments or conduct mental health adjudications are also HIPAA covered entities. Moreover, we understand that some States have designated repositories to collect and report to the NICS the identities of individuals subject to the mental health prohibitor. We also do not have data to determine to what extent any of these repositories is also a HIPAA covered entity (e.g., a State health agency).

HHS's efforts to attain the data above it says it's missing, it's deciding whether it needs to amend the Privacy Rule to allow covered entities with mental health prohibitor patients' data to disclose that information to the NICS. It's trying to see if this would clear up confusion or misconceptions regarding the Privacy Rule and simplify the reporting of these individuals' identities to the NICS.

In crafting the elements of an express permission, we would consider limiting the information to be disclosed to the minimum data necessary for NICS purposes, such as the names of the individuals who are subject to the mental health prohibitor, demographic information such as dates of birth, and codes identifying the reporting entity and the relevant prohibitor. We would not consider permitting the disclosure<http://healthitsecurity.com/glossary/disclosure/> of an individual's treatment record or any other clinical or diagnostic information for this purpose. In addition, we would consider permitting disclosures for NICS purposes only by those covered entities that order involuntary commitments, perform relevant mental health adjudications, or are otherwise designated as State repositories for NICS reporting purposes.

This isn't the first time the question of whether HIPAA restricts mental health reporting<http://healthitsecurity.com/2013/02/19/does-hipaa-restrict-mental-health-data-reporting/> has been posed. But this time, HHS is trying to get to the bottom of underreporting of these mental health prohibitors and determine whether the HIPAA Privacy Rule affects entities' ability to report to the NICS. The public has 45 days to comment before HHS collects the data and decides how it will handle the issue of HIPAA and mental health privacy as it relates to gun safety.