President Obama’s new gun-control executive order, which was released today, has prompted the reactions and overreactions one might expect. Part of the rule aims to clarify that healthcare entities can legally identify certain individuals with serious behavioral health disorders for the FBI’s background-check system, according to Politico.
What about HIPAA?
Language set to be entered into the Federal Register includes modification to HIPAA to expressly permit this type of disclosure, saying that covered entities with authority to make involuntary commitment decisions are also permitted to disclose the patient’s relevant information to the FBI.
Remember that HIPAA already allows exclusions for emergency situations when disclosure could avert harm or self-harm.
For the information sent to the background-check database, there are some limitations on what can be disclosed. Only the fact that an individual falls into one of the categories that prohibits him or her from buying guns can be sent to the FBI. Any underlying diagnoses or treatment records would not be provided, according to the rule.
Does this rule change the gun laws?
No. The executive order does not function as a broad piece of legislation but is positioned as a clarification, among other things, “to address barriers related to HIPAA.” The idea is that the rule change would help increase the reporting of red flags and reduce the risk of harm and self-harm with firearms.
Prevailing laws—the Gun Control Act of 1968 and the Brady Act of 1993—already prevent anyone with a positive screen for illegal substances in past year from buying a gun as well as anyone deemed incompetent to stand trial in court or anyone with an involuntary commitment in the past.
According to a fact sheet from the FBI, among the existing red flags that would prohibit an individual from acquiring firearms are:
“An unlawful user and/or an addict of any controlled substance; for example, a person convicted for the use or possession of a controlled substance within the past year; or a person with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest occurring within the past year; or a person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year;” and
“A person adjudicated mentally defective or involuntarily committed to a mental institution or incompetent to handle own affairs, including dispositions to criminal charges if found not guilty by reason of insanity or found incompetent to stand trial.”
The rule’s language also points out that several states have not been disclosing to the FBI information about individuals in the second category above, often citing HIPAA. Legal authorities can in fact pass this information along.