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Health Provider Implications In New Gun Control Executive Orders

By: Ronald W. Chapman II

President Obama’s recent executive action regarding gun control is likely to spark some confusion among health care providers – particularly, the three actions taken related to mental health. The first action requires the Social Security Administration to begin rulemaking procedures to report individuals who are receiving benefits because of mental impairment, or have been found legally incompetent by the Department of Justice. The second action proposes a letter informing health care providers that no law prevents them from reporting threats of violence to the police. The third action interprets the Privacy Rule, issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as expressly permitting covered entities to provide the National Instant Criminal Background Check System (NICS) information about individuals who are impaired and do not qualify to own a firearm.

Currently, Federal Law bars the possession or acquisition of firearms by anyone who “has been adjudicated as mentally defective or has been committed to any mental institution.” The keyword here is adjudication. 18 U.S.C. §§ 922(d)(4), (g)(4). This requires a determination by a court, board, commission, or other lawful authority, that the person in question is mentally impaired and is a danger to himself/herself or others, or lacks the mental capacity to contract or manage his/her own affairs. 27 CFR § 478.11.

Thus, those that qualify under the definition above and are currently receiving social security assistance will be reported to NICS and will no longer be able to receive firearms. This is all well and good, and merely enforces execution of an existing law.

The second and third actions have a greater implication, however. The second and third actions are designed to encourage mental health providers and other health care workers to report threats of violence by patients to the police. We are all aware that the physician/patient confidentiality and psychotherapist privilege are sacred, and that any breach of this privilege must be well thought-out, researched, and supported by the law in order to prevent licensing, civil, or even criminal backlash. This begs the question: When can I report a threat of violence to the police? Although an exhaustive case-by-case analysis is beyond the scope of this article, it will attempt to provide you with some of the basic rules as a general guideline.

The HIPAA Privacy Rule permits a covered entity to disclose PHI (Protected Health Information), including psychotherapy notes, when the covered entity has a good-faith belief that the disclosure (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others, and (2) is given to a person(s) who is reasonably able to prevent or lessen the threat. This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat, or others, who the covered entity has a good-faith belief can mitigate the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. See, 45 CFR § 164.512(j)(1)(i).

Even with the HIPAA exception, you must still adhere to your State Law regarding disclosure. This article will discuss two states: Michigan and Florida.

In Michigan, the duty to warn is mandatory. Mich. Comp. Laws §330.1946, requires that a health care provider give warning of any threat of physical violence against a reasonably identifiable third person, in which the health care recipient has the apparent intent and ability to carry out that threat in the foreseeable future. This duty is discharged by hospitalization of the patient, communication to the third person, or to local law enforcement. If the patient is a minor, you can warn the custodial parent or guardian; there is immunity from liability for disclosure in such instances.

By contrast, in Florida, the duty to warn is permissive. Fla. Stat. § 394.4615, declares that information from a clinical record may be released when the patient has declared an intention to harm other persons. This statute provides immunity for reporting in good-faith.

As you can imagine, providers get into trouble in the grey area of the statute. Determining an individual’s intent and mental state at the time of the threat is nearly impossible, and the risks of an erroneous report are high.

Imagine a patient of yours, a high school student suffering from bi-polar disorder, who during a session says he was bullied at school. “I could just kill Billy Smith,” he says. “The other day I thought about bringing a gun to school to show him whose boss.” Would this be reportable in Michigan? Potentially, it seems to hit the required elements of the Michigan and Florida statutes.

So, let us say you decide to report. The patient is a minor, so you could report to his parents. You call his father and indicate your concern, but the father brushes it off and says, “My son would never do that,” and, “he’s probably just blowing off a little steam!” Technically, you have discharged your duty, though your conscious is likely to not yet be clear. Whether or not to report to the police is a very difficult decision and the risks are great.

On the other hand, if you fail to report and something happens, you could have prevented a terrible situation. You will also likely face licensing and/or criminal action under the Michigan statute that requires reporting. You also risk exposure to civil liability for your failure to report.

Clearly, escalated pressure on health care providers induced by this executive action will increase the scrutiny of decisions made by health care providers. More now than ever, health care providers must know the law, and must be able to properly apply the Federal Law and State Law to understand their reporting obligations. As always, contact the Chapman Law Group for legal assistance when faced with these important questions.