The head of the 2.2-million member American Legion has joined a number of organizations that worry a tweak to the federal privacy rule for gun control will stop veterans from seeking mental health treatment for fear it will violate their Second Amendment rights.
Others, however, hope HHS' expansion of access to behavioral-health information will lead to revisions in another key Code of Federal Regulations privacy rule, 42 CFR Part 2, which could further facilitate the sharing of some medical records. That 1970s-era law covers federally funded drug and alcohol treatment organizations, and by inference, the medical records of many behavioral-health patients.
The Obama administration this week announced a package of executive orders to prevent individuals from buying guns who legally shouldn't be allowed to do so.
Among the orders was HHS' release of a final rule that allows a select group of entities covered by the Health Insurance Portability and Accountability Act to disclose certain information about behavioral-health patients without their consent to the FBI's National Instant Criminal Background Check System (NICS). Under federal law, patients who have been committed to a mental institution or deemed "mentally defective" can be denied the right to purchase, carry or own a gun. Commercial gun dealers must do a background check on prospective gun purchasers through the NICS or similar state-run systems.
The revision affects only a small number of HIPAA-covered entities, such as “some state agencies, boards, commissions, or other lawful authorities outside the court system that are involved in some involuntary commitments of mental health adjudications,” the order states.
In a statement regarding the rule, Dale Barnett, the American Legion's national commander, said, “Nobody wants violent criminals or those with extreme mental disorders to have firearms.” But he added, “The American Legion strongly believes that treatment for post-traumatic stress disorder or depression by itself, which a number of wartime veterans experience, should not be the sole factor in denying a veteran the right to purchase a firearm. Barring some additional circumstances that would indicate that a veteran represents a dangerous threat, veterans should not have to forfeit their Second Amendment rights."
A fair reading to the 56-page rule, however, would indicate that neither a diagnosis of PTSD, nor of depression, by themselves, would trigger the court actions required to deprive an individual of gun ownership under federal gun laws. Still, the mere perception of a liberalization of HIPAA could have an impact, some commenters suggest.
Those who drafted the HHS rule said they have received similar concerns about its application within the Veterans Health Administration, the healthcare arm of the Veteran Affairs Department, and from others about the potential “chilling effect on individuals' willingness to discuss issues in treatment.”
A number of comments stated the rule might perpetuate stereotypes about behavioral-health patients “by sending a message to the public that (HHS) perceives mental illness as inextricably linked with violence.” The HHS rule said those concerns should be trumped by “an important public safety interest” in facilitating better reporting to the NICS.
Under existing law, the VA already is required to report information about troubled individuals to the U.S. Office of the Attorney General, which oversees the NICS. Thus, the rule change, “does not affect that requirement or change the procedures” relating to mental-disability determinations or reporting, HHS said.
However, the recent final HHS rule has renewed interest in changes to another federal privacy rule involving behavioral-health records—42 CFR Part 2. Under that law, providers of drug and alcohol abuse treatment are obligated to obtain a patient's consent before disclosing that patient's medical records to another general healthcare provider. The requirement to obtain the patient's prior consent stays with the record and must be met each time the record is moved.
“This isn't just a HIPAA issue,” said Angela Rose, director of health information management practice at the American Health Information Management Association, referring to the push to facilitate broader behavioral-health record exchanges between providers.
Matt Salo, executive director of the National Association of Medicaid Directors, agreed. “We're pushing pretty hard for exemptions for the existing guidelines around privacy. The 42 CFR stuff does need to happen, because there are a lot of people suffering because of it.”
Opponents, however, say the current rule should be maintained to protect the patient-clinician relationship and to assure patients fearful of being stigmatized that their records will be kept secure.
The Substance Abuse and Mental Health Services Administration is still considering possible amendments to 42 CFR Part 2.