Abstract
The Health Insurance Portability and Accountability Act (HIPAA) is nearly synonymous with patient privacy. In contrast, the National Instant Criminal Background Check System (NICS), a provision of the Gun Control Act of 1968, demands the disclosure of information about individuals, including mental-health information, that may prohibit their purchase of firearms.
These two statutes raise the following question: what if NICS requires or recommends the reporting of information protected by HIPAA? In the wake of recent gun violence by mentally disabled individuals, governmental and nongovernmental organizations have questioned whether HIPAA's privacy provisions have stultified national gun-control measures by prohibiting the reporting of mental health information. In early 2014, the Department of Health and Human Services responded to these concerns by proposing a rule that would grant an exception to HIPAA's privacy protection to allow the reporting of relevant mental-health records to NICS.
This Note questions whether there is an insurmountable conflict between HIPAA and the Gun Control Act that warrants the proposed exception. It analyzes the NICS-reporting practices of certain states to explain how existing federal NICS-reporting laws can be used to clarify federal NICS-submission standards and argues that the proposed rule is legally trivial.
Citation
Stephanie E. Pearl,
HIPAA: Caught in the Cross Fire,
64 Duke Law Journal
559-604
(2014)
Available at: https://scholarship.law.duke.edu/dlj/vol64/iss3/4