President Obama announced a series of Executive Orders on January 4, 2016 to address gun-related violence in America. Among those orders was an initiative to increase mental health reporting to the background check system. But this does not mean that mental health records will be widely released or that anyone who has sought treatment for mental illness will be banned from gun ownership. It only means that information about individuals who are already prevented from owning guns under current law will be made available for background checks.
A fact sheet released by the administration includes this summary:
Remove unnecessary legal barriers preventing States from reporting relevant information to the background check system. Although States generally report criminal history information to [the National Instant Criminal Background Check System, (NICS)], many continue to report little information about individuals who are prohibited by Federal law from possessing or receiving a gun for specific mental health reasons. Some State officials raised concerns about whether such reporting would be precluded by the Privacy Rule issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Today, the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about these individuals.
A Final Rule was posted by the Office of Civil Rights of the Department Health and Human Services (OCR) at https://federalregister.gov/a/2015-33181. In an announcement posted by OCR, the agency emphasized that this rule is narrowly drawn and applies only to a limited category of covered entities:
The new modification is carefully and narrowly tailored to preserve the patient-provider relationship and ensure that individuals are not discouraged from seeking voluntary treatment. This rule applies only to a small subset of HIPAA covered entities that either make the mental health determinations that disqualify individuals from having firearms or are designated by their States to report this information to NICS – and it allows such entities to report only limited identifying, non-clinical information to the NICS.
The rule does not apply to most treating providers and does not allow reporting of diagnostic, clinical, or other mental health treatment information. [emphasis added]
OCR emphasizes that individuals who seek help for mental health conditions and/or receives mental health services are not automatically legally prohibited from having a firearm, and that nothing in the final rule changes that.
The rule only applies to state agencies or other agencies that are designated by the state to report, or which collects information for purposes of reporting, on behalf of the state, to the NICS; or a court, board, commission, or other lawful authority that makes the commitment or adjudication that causes an individual to lose the right to possess firearms under existing federal law. It authorizes such agencies to disclose the information only to NICS or an entity designated by the state to report, or which collects information for purposes of reporting, on behalf of the State, to NICS, and permits disclosure of only such limited demographic and certain other information needed for purposes of NICS reporting. It expressly prohibits disclosure of diagnostic or clinical information for such purposes.
In light of the heightened emotions surrounding any government action relating to firearms, especially as it may involve mental health and HIPAA, it is likely that misunderstandings, exaggerations, misinformation (or even intentional disinformation) about this limited change will circulate through social media and similar channels. Healthcare providers and other covered entities should be aware that the rule changes nothing except for certain state agencies and their agents.