The letter was in response to an HHS proposal that the federal privacy rule be changed so that state mental health authorities could transmit information about individuals declared mentally unfit to the National Instant Criminal Background Check System (NICS). The NICS was created by the Brady Act and ensures that guns are not sold to those prohibited by law from buying them, including felons, those convicted of domestic violence, and individuals involuntarily committed to a mental institution or found to be a danger or unable to manage their affairs due to a mental health condition.
The debate involves a plan by the Department of Health and Human Services to amend a federal privacy rule. The amendment would expressly allow state mental-health authorities to transmit records of anyone who has been declared mentally unfit by a court or other authority to the National Instant Criminal Background Check System, or NICS, maintained by the Federal Bureau of Investigation.
“APA thinks responsibility for transmitting the identities of individuals subject to the mental health prohibitor to NICS should rest with the justice system,” wrote APA Medical Director and CEO James H. Scully, Jr., M.D., in the May 28 letter addressed to the HHS Office for Civil Rights (OCR). “As non-HIPAA-covered entities, the courts are in the best position to transmit the identities of individuals subject to the mental health prohibitor to NICS.”
Scully cautioned OCR not to construe support of NICS reporting by the justice system as support for eroding existing HIPAA privacy protections afforded to patients who are not subject to the federal mental health prohibitor. “An individual’s confidence in the privacy he or she will be afforded when seeking medical care, particularly mental health care, often singularly determines whether or not that individual will agree to receive health care treatment,” he wrote. Read APA's letter to OCR here.
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