By Anna Kraus

Two measures in President Obama’s plan to reduce gun violence, released yesterday, seek to address privacy concerns related to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Mental Health Records and Background Checks.  The first measure, which is part of a set of recommendations to strengthen the National Instant Criminal Background Check System (NICS), is to address “unnecessary legal barriers that prevent states from reporting information [to NICS] about those prohibited from having guns.”  The President’s plan references a July 2012 Government Accountability Office (GAO) report on gun control, which found that although the number of mental health records available to the NICS has increased, there were still 17 states that  have made fewer than 10 mental health records available to the system.  One reason for this, according to the GAO, may be concerns under HIPAA.  The HIPAA Privacy Rule allows covered entities to use or disclose protected health information without the individual’s authorization under certain specified circumstances, such as when required by law.  A few state officials reported to GAO that the “absence of explicit state statutory authority to share mental health records was an impediment to making such records available to NICS.”

To address this issue, the President’s plan states that the “Administration will begin the regulatory process to remove any needless barriers, starting by gathering information about the scope or extent of the problem.”  (Interestingly, the GAO report states that the Department of Justice asked the Department of Health and Human Services to address this problem by amending the Privacy Rule to specifically allow disclosure of mental health records for NICS reporting purposes; however, as of the date of the report, HHS had not yet decided whether to pursue an amendment.)

HIPAA and Threats of Violence.  The second HIPAA-related measure is to have the Department of Health and Human Services (HHS) send out a letter clarifying that “no federal law prevents health care providers from warning law enforcement authorities about threats of violence.”  The President’s plan notes that doctors and mental health professionals play an important role in protecting the safety of patients and the broader community, but there is some confusion about whether HIPAA prevents them from reporting threats of violence.  HHS released the letter to health care providers last night, and we will discuss it in a separate post.

The two HIPAA-related measures were also included among the 23 Executive Orders that the President signed to implement certain aspects of the plan.