Covered entities evaluating the impact of this HIPAA amendment should take note that the use or disclosure authorized by this amendment is PERMISSIVE, not mandatory.  The language of the rule states the covered entity “may” use or disclose PHI for purposes of reporting to the NICS the identity of an individual who is prohibited from possessing a firearm under 18 USC 922(g)(4).  The covered entity is not required to do so.   Therefore, if a covered entity isn’t sure whether they are allowed by this recent amendment to make a disclosure to the NICS, the normal compliance strategy would require careful consideration. Continue reading →

The Department of Health and Human Services issued  a final rule modifying HIPAA.  The modification expressly permits certain limited “covered entities” to disclose to the NICS the identities of individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm.  The scope of the amendment is narrow in that it authorizes the disclosure of “only the limited demographic and certain other information needed for purposes of reporting to the National Instant Criminal Background Check System” and specifically prohibits the disclosure of diagnostic or clinical information.  Further, very few covered entities will be impacted by this amendment.  The amendment authorizes the limited disclosure only if the covered entity is “a State agency or other entity that is, or contains an entity that is: (A) An entity designated by the State to report, or which collects information for purposes of reporting, on behalf of the State, to the National Instant Criminal Background Check System; or (B) A court, board, commission, or other lawful authority that makes the commitment or adjudication that causes an individual to become subject to 18 U.S.C. 922(g)(4).”

The Final Rule is available for review at  https://federalregister.gov/a/2015-33181.

Written by: Jacob Simpson