HIPAA Update Proposed to Allow National Instant Criminal Background Checks

President Obama is stepping up efforts to reduce gun violence; however some legal barriers remain and the HIPAA Privacy Rule is currently preventing the reporting of important information to the National Criminal Background Check System.

The NCBC allows gun vendors to conduct security checks to find out if a prospective gun owner is legally entitled to own a firearm. While everyone has a right to bear arms, federal law restricts gun ownership and certain individuals – convicted felons and individuals who have been previously involuntarily committed to a mental health institution for example – are not permitted to own weapons.

The system allows rapid checks to be conducted and while the database is updated with details of criminal convictions, important health information is often not provided due to restrictions of the HIPAA Privacy Rule. The system has proved successful so far and has prevented the sale of over 2 million weapons; however it is only as good as the data that it contains and there appears to be a lack of information relating to mental health, according to a 2012 Government Accountability Office report.

The report indicated that while information is being uploaded to the NCBC system, it discovered that 17 states had only uploaded the details of 10 individuals who were prohibited from owning weapons due to mental health problems. Following on from the publication of the report, much of the missing data has been obtained but there are clearly still legislative stumbling blocks that need to be removed.

The Department of Health and Human Services has now taken steps to ensure privacy is protected, while essential information is provided to the NCBC to prevent firearms from being sold to ineligible individuals. In April last year, an Advance Notice of Proposed Rulemaking was posted on the HHS website requesting feedback from the public. After receiving over 2,000 responses from care groups, consumer advocacy groups, healthcare providers and others, the final Notice of Proposed Rulemaking has now been issued.

The change does not affect any individual who has suffered from mental health issues in the past or is even currently seeking help and treatment. This information will still remain private. The change allows HIPAA covered entities to report cases of involuntary treatment for mental health and limits the amount of data can be released.

The change does not permit clinical, medical or diagnostic information to be disclosed; only the minimum possible information to allow identification of an individual that has been involuntarily committed to a mental institution or is deemed to be a danger to themselves or the public. Individuals who lack the mental capacity to competently manage their own affairs will also have some data provided to the NCBC. The change will not make it mandatory to report these matters, only that reporting this information is now permitted under HIPAA regulations.

Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA. Steve holds a B.Sc. from the University of Liverpool.