Attorney's clients breathing easier after Obama's gun safety orders

By Sharon Brooks Hodge | Apr 19, 2016


HARRISBURG - A Pennsylvania attorney for health care providers is less worried about changes in privacy laws designed to help curtail gun violence than he was when the modifications were announced in January.

“At first, I envisioned mental health care providers being subpoenaed to testify,” said John Greenleaf III, of McNees Wallace & Nurick. “We were uncertain about what would be their obligation because Pennsylvania’s Mental Health Procedures Act limits what information can be released.”

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. Consequently, commercial gun dealers must do a background check on prospective gun purchasers through the National Instant Criminal Background Check System or similar state-run systems.

In January, the Obama administration announced a package of executive orders to prevent individuals who legally shouldn't be allowed to buy guns from doing so.

Among the orders was a final rule from the Department of Health and Human Services that allows some entities covered by the Health Insurance Portability and Accountability Act to disclose information about mental health patients without their consent to the FBI's National Instant Criminal Background Check System.

"Too many communities across the country are still suffering from the heartbreaking consequences of a gun in the wrong hand," President Barack Obama said in a statement when the executive orders were issued. "In the past decade, more than 100,000 people have died as a result of gun violence. Many of these crimes were committed by people who never should have been able to purchase a gun in the first place."

Greenleaf said he received phone calls from clients who are HIPAA-covered entities that participate in making the mental health determinations that could disqualify individuals from having a firearm. In a blog post shortly after the HIPPA changes were announced, Greenleaf wrote:

“Generally, HIPAA defers to state laws that more strictly restrict the use and disclosure of particular types of health information, and in Pennsylvania, mental health information, drug and alcohol abuse information, and HIV/AIDS related information are all specially protected by state law. Thus, it can be expected that controversies will arise in which Pennsylvania law conflicts with this new HIPAA modification. Courts addressing such conflicts will have their hands full, and legal and mental health communities will be watching closely.”

So far, no conflicts have emerged, and Greenleaf said he and the mental health providers he represents have breathed a collective sigh of relief.

“We’ve had time to really look at it, and I am less concerned now because the information that would be disclosed already is publicly available,” said Greenleaf, who represents five hospitals, two specialized care facilities, a nursing home and several physicians groups.

According HHS, the information that can be disclosed is the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.

The background check record consists of the name of the individual, date of birth, gender, codes indicating the reason the person is prohibited, the submitting entity and the agency record supporting the prohibition (such as an order for involuntary commitment).

Additionally, the new rule prohibits mental health providers from sharing any diagnostic or clinical information from medical records or other sources beyond the fact that a person is barred from gun ownership. An individual who seeks help for mental health problems or receives mental health treatment is not automatically legally prohibited from having a firearm.

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