Politics, Privacy and Pulling the Trigger
By Tamer Abouras
On Monday, January 4, 2016, President Obama spoke to the nation, as expected, and issued an executive order regarding gun safety and measures he feels will help to curb what he called the “epidemic of gun violence.”
His address was heartfelt, emotional and — predictably — polarizing. Conservatives panned what they perceived to be an overreach and an attack on the Second Amendment, while liberals lauded the president taking action where Congress hadn’t. Both sides conceded that the enhancement on background checks would not have affected or prevented recent mass shootings such as the tragedy in San Bernardino.
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One of the more sweeping, lesser noted aspects of the executive order’s proposal was its enabling mental health providers a simpler way to disclose information to National Instant Criminal Background Check System (NCIS). Billed largely as a way to prevent suicides — which account for about two-thirds of all annual gun deaths in America, according to the CDC — it was noted by Healthcare Informatics that “… the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a final rule, which takes effect next month, removing legal barriers preventing states from reporting relevant information to NICS.”
This idea of removing the legal barriers put in place by HIPAA has actually been a few years in the making, according to Politico’s Morning eHealth report.
“The idea initially came three years ago in the wake of the Newtown, Conn., shootings, but has been languishing. The 1993 Brady law disqualified certain people from buying guns, including individuals involuntarily committed to mental health care and those found incompetent to stand trial or otherwise deemed to be a danger to themselves or others. But HIPAA prohibited providers from sharing the information with the FBI’s National Instant Criminal Background Check System. The rule, which takes effect next month, changes that.”
The complete text of the rule can be found here.
The overarching question is whether or not this amendment of HIPAA will prove to be problematic. While the United States government in the 21st century has consistently found itself infringing upon privacy and civil liberties in the name of security — NSA, anyone? — it is, as Healthcare Informatics senior editor, Rajiv Leventhal put it, “ … an issue that can certainly become very fuzzy.”
Leventhal continued, citing a blog post from Mental Health America, which stated, “ … what the rule says is this: (1) a firearms control data center housed in a HIPAA-covered entity can share limited demographic information with the national registry; and (2) a HIPAA-covered entity that is participating in a judicial proceeding to determine that a person cannot lawfully have a firearm (such as ordering an involuntary commitment) can share limited demographic information with the registry.”
Mental Health America’s CEO, Paul Gionfriddo added, “This change will affect a relatively small number of people (maybe in the hundreds, maybe in the thousands). So why does it matter? It has already been determined that it is illegal for the individuals whose names will be added to the list to own or possess firearms. So this might prevent a tragic event without infringing on the rights of anyone who can possess firearms.”
Ultimately, Leventhal agrees in his analysis that this is both a targeted, specific change that will not wrongfully affect the wrong people — and that privacy for those individuals should not supersede public safety. “Indeed, while the patient-provider relationship is one that should certainly be respected, it is more important to potentially save lives by providing these mental health records to the people who need them,” he said.
While the more libertarian-leaning among us may raise an eyebrow at statements like that — and more conspiratorial sorts would note that nothing is explicitly stopping the administration from tweaking or changing HIPAA further to expand this information disclosure to more patients with mental health issues, it’s certainly a topic that has the American people talking and has smart people working around the clock to address.
The president’s executive order takes aim at the gun violence problem. Time will tell if he hits the mark.