Philadelphia Health Care Lawyers: Firearm Background ChecksApril 4, 2016
Some of the major stories in 2015 involved groups of individuals being killed at the hands of a gun wielding murderer. The Federal government and many state and local governments have stepped up their attempts to keep firearms out of the hands of those who they have deemed are unsafe to carry them.
One such attempt came in January when the Department of Health and Human Services (DHS) modified the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to allow a select number of HIPAA covered entities to share information with the National Instant Criminal Background Check System (NICS). Prior to the decision by the Office of Civil Rights of the DHS, certain individuals who were restricted from legally possessing firearms under federal law could not be identified through the NICS and therefore were able to legally purchase guns. The issuance of the final rule by the DHS is intended to fix such glitches in the system.
The Gun Control Act of 1968 made it illegal for certain individuals to possess or have anything at all to do with firearms. The Department of Justice (DOJ) has added to the act certain individuals, including anyone who has been:
- Involuntary committed to a mental institution,
- Found to be incompetent to stand trial,
- Found not guilty by reason of insanity,
- Determined by a lawful authority to be a danger to themselves or others,
- Determined by a lawful authority to be unable to manage their own affairs as a result of marked subnormal intelligence, mental illness, incompetency, condition or disease.
Considering that privacy is one of the most fundamental rights in the country, the DHS believes that their final rule was framed in an extremely restricted and very particular way, such that the importance of privacy for those who seek medical attention has been balanced with the importance of protecting the public from those ruled unfit to carry firearms. The final rule provides that only entities with lawful authority to make decisions that result in an individual being unable to possess a gun for mental health reasons can legally disclose those individuals’ identities to the NICS. Demographic information about those with mental health issues may be disclosed to the NICS, but medical and clinical information is strictly prohibited from disclosure.
In addition to continuing to strongly protect the privacy of patients, the DHS also says that the rule will unify reporting standards throughout all of the states in the country.
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