Will President’s Recent Executive Order Modifying HIPPA Have A Chilling Effect On The Quality Of Mental Health Care?

Will President’s Recent Executive Order Modifying HIPPA Have A Chilling Effect On The Quality Of Mental Health Care?

On January 4, 2016, President Obama announced a series of Executive Orders to address gun-related violence in America. Among those orders was the creation of a limited “express permission” in the HIPAA Privacy Rule to disclose information relevant to the federal mental prohibitor for National Instant Criminal Background Check System (NICS).  The NICS is a national system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on persons who may be disqualified from receiving firearms based on federally prohibited categories or state law. Among the persons subject to the federal mental health prohibitor are individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition or disease.  The President believes the HIPAA modification is “necessary to address the concerns of covered entities were reluctant to report perceiving HIPAA as a barrier.”

Setting aside whether the President’s conduct in creating exceptions to federal laws established through congress is legal, many health care professionals are concerned about what these changes will have on our country’s mental health care system.  Opponents of the executive action

argue that communications between patients and their health care providers should be kept confidential under all circumstances, and that HIPAA prohibits such conduct. For instance, the National Alliance on Mental Illness (NAMI) strongly advocates that people should not be treated differently with respect to firearms regulations based on stereotypical assumptions about mental illness and its relationship to violence. NAMI believes that the current NICS law is based on faulty assumptions about the relationships between mental illness and violence, not grounded in science. We therefore do not support amending the HIPAA Privacy Rule to create a special exception for reporting of mental health records to the NICS database. Moreover, the National Association of Psychiatric Health Systems (NAPHS) is concerned that the public will perceive the new rule as a mandate for their mental health doctor, nurse, therapist, counselor, etc.  to report an “incompetent” or “dangerous” patient to the federal registry.  As a result, the NAPHS believes that the rule will create a chilling effect on individuals' willingness to seek treatment, or discuss issues in treatment that could lead to positive resolution rather than violence directed toward themselves or others.  Others are concerned that some covered providers, motivated for political or other nefarious reasons, will exercise this rule to report political dissidents who, in their opinion, may be a danger to themselves or others, and therefore unfit to own a firearm.  For example, those patients diagnosed with “oppositional defiance disorder,” i.e. a recurrent pattern of negativistic, defiant, disobedient and hostile behavior toward authority figures, might be someone, who in the healthcare professional’s opinion, is incompetent or a risk of harming self or others, necessitating legal proceedings, NICS reports and ultimately deprivation of one’s Second Amendment rights.

In response, the President acknowledged the need to balance the public safety interest and individual privacy interests, which is why the grant of permission to report applies only to those covered entities that order the involuntary commitments or make the other adjudications that cause individuals to be subject to the federal mental health prohibitor, or that serve as repositories of such information for NICS reporting purposes. Thus, the rule does not affect most treating providers or create a permission for them to disclose PHI about their own patients for these purposes. Furthermore, the information that may be disclosed is limited to an individual’s: Social Security number, state of residence, height, weight, place of birth, eye color, hair color and race.  The President, however, notes that this list could be expanded to include: the individual's name, sex and date of birth; as well as codes identifying (1) the Federal mental health prohibitor, (2) the record documenting the involuntary commitment or adjudication and (3) the entity from which the record initiated) that may be helpful in verifying identity and excluding false matches.  The White House further explained that this rule has no bearing as to who is authorized or prohibited from owning a firearm, just a grant of permission to release information.

It remains to be seen whether the new HIPAA rule will foster public security, and/or have a deleterious effect on mental health care.  Will individuals in need of professional mental health services, refuse to seek treatment, thereby increasing the risk of suicides and/or homicides?  Perhaps not, but it would be interesting to see if the Department of Health and Human Services or some other federal agency would develop data gathering strategies to determine what effect the deprivation of individual privacy rights has on individual mental health and public safety in the United States of America.  Moreover, it will be interesting to see if the states revisit their own privacy laws, and decide whether they need to implement and/or modify state privacy laws to suit the needs of their residents.