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    کد خبر : 27490
    تاریخ انتشار : 31 اردیبهشت 1392 13:42
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    Lawyers debate impact of Obama HIPAA initiative on gun control

    The Obama administration recently began examining whether the Health Insurance Portability and Accountability Act is inhibiting states from reporting the mentally ill to a gun control database, prompting a debate among experts on the privacy law.

    President Obama, File May 19, 2013. REUTERS Jonathan Ernst

    The gun database, known as National Instant Criminal Background Check System (NICS), was created to collect records of people who are prohibited from buying firearms, including people who have been involuntarily committed or deemed incapacitated by courts for mental health reasons.

    About half the states have laws compelling submission of the information. In other states, Health and Human Services and gun-control advocacy groups have said they are concerned that ambiguities surrounding HIPAA, which protects medical and mental health records, may be causing states to not turn over records.

    To explore whether HIPAA has posed "unnecessary legal barriers" to NICS reporting, Health and Human Services in April announced it was seeking comment from individuals and organizations. The comment period ends June 7.

    The extent of the barriers is unclear. A 2011 report by Mayors Against Illegal Guns, an alliance of city mayors who support more gun control, said that officials in several states, including Montana, New Mexico, and Rhode Island, as well as the District of Columbia, cited HIPAA as a hurdle to reporting data to NICS. But officials in Montana's Department of Justice and Rhode Island's Department of Public Safety said state privacy law, not HIPAA, prevented them from sharing data related to civil commitments. Officials in the D.C. Department of Mental Health and New Mexico Department of Public Safety said they provide mental-health records to NICS.

    CONFUSION OVER DATA

    If there are states that are not reporting, it could be because the relevant data is held by an entity at least partly covered by HIPAA, which includes some state agencies with healthcare responsibilities, said Dianne Bourque, a partner who practices healthcare law at Mintz Levin.

    Under those circumstances, agencies could be wary of running afoul of HIPAA rules that prevent a HIPAA entity from releasing protected information even if it's already public. "Even if it becomes widely publicized that Jane Smith was adjudicated incompetent, the covered entity that has that information (has an) obligation to retain it privately and securely," said Bourque.

    States could also be using the act as an excuse not to report because there is local opposition to NICS, said Lindsay Nichols, an attorney for the Law Center to Prevent Gun Violence, which supports the executive action. She said the government needs to understand why the states are not participating.

    "We need clarification to make this not be an excuse," said Nichols.

    The reluctance of some states to report to NICS because of HIPAA could be misdirected, said Bourque. The information the database seeks is typically in the public legal record, such as involuntary commitments or a person found incompetent to stand trial. It would not cover broad mental health records, such as visits to a psychiatrist or therapist, she said. "It's a fairly narrow class of information," said Bourque.

    A RED HERRING

    The blame being directed at HIPAA "almost seems like a red herring," said Jeff Drummond, a partner with Jackson Walker who represents healthcare providers. The information collected by NICS, said Drummond, "would be information that could be obtained from a state agency that's not a health care provider or clearinghouse ... and therefore has no HIPAA obligations."

    So far, most of the comments received on barriers to reporting mental health records posed by HIPAA have come from individuals. The comments have largely dealt with concerns outside the scope of the department's query. A Health and Human Services spokeswoman said that comments from state agencies were expected later in the process.

    After Health and Human Services receives comments from the public, it could choose to propose amendments to its regulations governing HIPAA. That would require another comment period. The agency would then issue a rule clarifying the existing provision.

    In any potential rulemaking, experts said the agency's major concern would be ensuring the rule doesn't inhibit patients from seeking mental healthcare.

    "This is always the concern (but) I don't know as a practical matter that that's really a risk," said Bourque. "I can't imagine that for someone who's in crisis and needs treatment ... that someone would have thought, 'Don't get them help because it would prevent them from getting a firearm later.'"

     

    © Thomson Reuters


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