HHS Rule: Clinicians Do Not Have to Report Patients to Background Check System
Abstract
The proposed regulations should not inhibit those who need mental health care from seeking it.
A proposed rule by the Department of Health and Human Services (HHS) addressing barriers to HIPAA-covered entities submitting information on individuals to the federal background check system makes clear that reporting is not mandated by federal law for clinicians treating individuals with mental illness.
On January 3, the Department of Justice (DOJ) proposed a regulation to clarify who is prohibited from purchasing a firearm due to mental illness, and the HHS rule addresses who can report someone to the National Instant Criminal Background Check System (NICS).
Julie Clements, J.D., director of regulatory affairs for APA’s Division of Government Relations, said the HHS proposed rule spells out that no one under federal rules is required to report information on anyone, and that the entities that can report information to NICS are limited to those designated as the lawful authorities for performing the adjudications, such as state agencies, commissions or boards, and the institutions serving as repositories for the data arising from them.
Illinois state law dramatically expands the categories of individuals who must be reported to the state’s Firearm Owner Identification database and—most egregiously according to APA leaders—requires treating clinicians to report on their patients who meet the state’s new expanded standards.
The Firearm Owners Identification Card Act, enacted in July 2013, requires inpatient and outpatient mental health facilities, as well as individual clinicians, to report “any person determined to be developmentally disabled or intellectually disabled.” Additionally, unlike the federal National Instant Criminal Background Check System (NICS), which allows reporting of information only for “adjudicated” admissions (that is, those mandated by the judicial system), the Illinois law requires reporting of “nonadjudicated” admissions, including voluntary, informal, detention, and evaluation admissions and emergency admissions that do not have judicial oversight.
Moreover, the definition of “nonadjudicated” admissions includes juvenile admissions.
Steven Hoge, M.D. chair of the APA Council on Psychiatry and Law, called the law “disturbing and remarkable” and said it goes far beyond a requirement to report people deemed to be dangerous to self or others.
“Legislation based solely on diagnosis is discriminatory and is based on unfounded prejudice toward those with mental disabilities,” Hoge told Psychiatric News. “Such legislation reflects and promotes stigmatization of individuals with psychiatric disorders. Additionally, the extension to nonadjudicated admissions would sweep into the gun registries many voluntary patients and those who may be determined at a legal proceeding not to have been dangerous. Presumably, to the extent that inclusion of those with mental illness has any rational basis, it must be restricted to those who have been adjudicated to be dangerous.”
Past APA Trustee and Illinois psychiatrist Sidney Weissman, M.D., said the bill would place diagnosing clinicians in what he called the “absurd” position of having to report 2-year-old children—who can begin to show signs of developmental delay or autism—as being a “clear and present danger.” He agreed that the legislation is discriminatory and can increase stigma but said he believes the best opportunity for redress is to remove language in the bill requiring reporting of small children.
Treating clinicians are not required to report patients under federal regulations. Moreover, the HHS and DOJ proposals do not change HIPAA regulations as they pertain to patient-doctor confidentiality; when physicians can disclose a patient’s protected health information remains unaltered under the HIPAA privacy rule (Psychiatric News, March 21).
The DOJ proposal states that individuals may be reported to NICS if they have been legally “adjudicated” as a “mental defective” because they are unable to manage their own affairs, have been found not guilty of a crime due to mental illness or guilty but mentally ill, are found incompetent to stand trial, or are determined to be a danger to themselves or others.
Also reportable are people who have been subject to “[a] formal commitment . . . to a mental institution by a court, board, commission, or other lawful authority.” The latter category, for the first time under the proposal, is clarified to include people subject to involuntary outpatient commitment. During a background check, federally licensed firearms dealers across the country will be alerted if a person who has been reported to NICS under the federal mental health prohibitor attempts to purchase a firearm.
“APA appreciates the balance that HHS strikes to protect the safety of the public by allowing the reporting of appropriate individuals subject to the NICS federal ‘mental health prohibitor,’ while also preserving the patient-physician relationship and promoting mental health treatment,” wrote APA CEO and Medical Director Saul Levin, M.D., M.P.A., in a February 21 letter to the HHS Office of Civil Rights. “We applaud HHS for again recognizing the importance of the patient-physician relationship by limiting express permission for NICS reporting to a circumscribed category of HIPAA-covered entities.”
Paul Appelbaum, M.D., chair of APA’s Committee on Judicial Action, told Psychiatric News that these proposals should not inhibit those who need mental health care from seeking it. Voluntarily seeking either inpatient or outpatient mental health services does not place one within the federal mental health prohibitor; rather, one must be legally adjudicated by a federal, state, county, or military court or similar body as being in one of the categories above to fall within this NICS prohibitor category, he said.
“The HHS proposal was motivated by concerns in some quarters that reporting persons who met the federal criteria for being barred from gun possession because of a mental health–related adjudication (such as court-ordered involuntary commitment) might conflict with HIPAA’s privacy rule,” Appelbaum said. “Although it was never clear that this was a real problem, the proposed rule would allow reporting of limited information by entities that conduct the adjudications or are repositories of relevant information. These would include courts and public agencies; psychiatrists and other treaters are not in the position of needing to report under this rule.”
Importantly, however, nothing in federal law prohibits individual states from enacting statutes requiring providers to report to NICS the identities of some individuals with mental disorders—as has happened in Illinois (see box on page 4). Moreover, states can additionally create their own mental health prohibitors through the enactment of state statutes that have a lower threshold than the adjudication or involuntary commitment presently required for reporting an individual to NICS under the federal mental health prohibitor.
In the letter to the OCR, Levin emphasized that APA opposes involving physicians or other treating providers in NICS reporting. “NICS reporting is best handled by the judicial system, which performs the adjudications,” he said. “Where NICS reporting is performed by a HIPAA-covered entity, we agree reporting should be confined to state health agencies that are the lawful authorities in a given state to perform adjudications or state offices that serve as clearinghouses for information arising from the adjudication.
“We strongly oppose any state law that would require treating providers to report to NICS the identities of persons suffering from mental illness,” Levin wrote. “Consequently, we have strong reservations about expanding the newly created express reporting permission to apply to states. It would be much too easy for states to enact a statute expanding the definition of HIPAA-covered entities expected to, or required to, report to NICS so as to include treating providers. Additionally, there is nothing to stop a state from enacting its own mental health prohibitors, which do not meet the heightened threshold of ‘committed to a mental institution’ or ‘adjudicated as a mental defective’ as defined in federal statute and federal regulations and which must be met to report individuals under the federal ‘mental health prohibitor.’ ”
Appelbaum said putting psychiatrists in the position of reporting individuals to NICS threatens the psychiatrist-patient relationship by putting them in a law enforcement role. “Clinicians should not be compelled to report directly to the NICS, and HIPAA should not be modified to facilitate changes that will only drive away from treatment the patients who may need it most,” Appelbaum told Psychiatric News. “There are many more effective ways to protect public safety.”
Clements said state laws that would mandate treating providers to report individuals with particular diagnoses to NICS—rather than be able to use their clinical discretion with respect to what personal health information about a patient they disclose—arguably contradict clinicians’ rules of ethics and complicate their capacity to adhere to the standard of care legally required of their profession. ■
APA’s letter to the Office of Civil Rights is posted on the APA website.
