All of the excitement surrounding the publication of the HIPAA Omnibus Final Rule may have overshadowed another very important development in health information privacy. On January 16, 2013, the Obama Administration released its comprehensive plan to reduce gun violence in America by banning military-style assault weapons and high capacity magazines, increasing access to mental health services, improving school security, and strengthening the background check system. In addition to calling on Congress to pass appropriate gun control legislation, the plan includes 23 Gun Violence Reduction Executive Actions that outline how the Administration intends to implement the plan unilaterally. One of these Executive Actions states the following:
“[T]he Administration will . . . 2. Address unnecessary legal barriers, particularly relating to [HIPAA], that may prevent states from making information available to the background check system.”
According to the plan, “some states have cited concerns about restrictions under [HIPAA] as a reason not to share relevant information on people prohibited from gun ownership for mental health reasons. The Administration will begin the regulatory process to remove any needless barriers, starting by gathering information about the scope and extent of the problem.”
Prior to the Obama Administration’s announcement, Leon Rodriguez, Director of the Office for Civil Rights (OCR), published a letter entitled “Message to Our Nation’s Health Care Providers” advising providers that the HIPAA Privacy Rule would not prevent providers from disclosing necessary information about a patient to law enforcement, family members of the patient, or other persons when the patient presents a serious danger to himself or other people.
What does all of this mean?
The protections of the HIPAA Privacy Rule intersect with the Administration’s gun control plan in two important contexts: (1) use and disclosure of patient information without the patient’s authorization in order to prevent imminent gun violence; and (2) use and disclosure of mental health information without the patient’s authorization for background check purposes.
1. Use and disclosure to prevent imminent gun violence.
As Director Rodriguez’s letter makes clear, under 45 C.F.R. § 164.512(j), PHI may be used or disclosed without patient authorization by a health care provider who believes in good faith that the use or disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others. Furthermore, the provider is presumed to have a good faith belief when that belief is based on the provider’s interaction with the patient or in reliance on credible representations from a person with apparent knowledge or authority. Accordingly, HIPAA does not present a legal barrier to using or disclosing PHI without patient authorization to prevent imminent gun violence.
However, some state laws could make this analysis slightly more complex. For example, under Section 611.004(4) of the Texas Health and Safety Code, providers are prohibited from disclosing certain “confidential information”, including the diagnosis or identity of a patient in relation to treatment or evaluation for any mental or emotional condition or disorder, unless, among other things, the disclosure is made to medical or law enforcement personnel when the provider determines that there is a probability of imminent physical injury to the patient or others, or the disclosure is made to a person who has the written consent of the patient. Unlike HIPAA’s good faith belief exception, which essentially permits any use or disclosure to any individual or entity reasonably necessary to prevent threats to public safety, Texas law restricts permissible disclosures to a limited class of individuals and entities, such as medical personnel, law enforcement, and individuals who have received the patient’s consent. As this provision is not contrary to HIPAA and appears to be more stringent than its federal counterpart, it is unlikely that it would be preempted under HIPAA’s preemption rules and could therefore affect a provider’s ability to directly notify specific individuals who may be in danger if the threat is not imminent.
2. Use and disclosure for background check purposes.
According to the Administration’s plan, the current firearm background check system is incomplete and should be supplemented with additional information, specifically mental health information, in order to accurately identify dangerous people who should not be permitted to obtain firearms. However, providers have not been consistently disclosing patient mental health information to the state authorities responsible for reporting the information to the federal background check system, as doing so without the patient’s authorization and absent a threat of imminent harm could be considered an impermissible use or disclosure of PHI under both the HIPAA Privacy Rule and applicable state laws. These concerns may be justified, as the use or disclosure of mental health information for background check purposes does not appear to precisely fit any of the narrow exceptions to the HIPAA Privacy Rule that would permit use or disclosure of this information without the patient’s authorization. Further, state prohibitions on the disclosure of mental health information, such as the provisions of Texas law discussed above, may present additional legal barriers to disclosure of patient mental health information unless the disclosure were to be expressly required or authorized by law.
Precisely how the Administration plans to address these legal barriers is still unclear—the Administration has only promised to “begin the regulatory process” by “gathering information about the scope and extent of the problem.” Political hedging aside, it seems as though further revisions to HIPAA could be just around the corner.