Comments from Access Living on the HIPAA Privacy Rule and the National Instant Criminal Background Check System

June 5, 2013

U.S. Department of Health and Human Services
Office for Civil Rights
Attention: HIPAA Privacy Rule and NICS
Hubert H. Humphrey Building
Room 509F
200 Independence Avenue S.W.
Washington, DC 20201

Comments from Access Living of Metropolitan Chicago on the HIPAA Privacy Rule and the National Instant Criminal Background Check System

Access Living appreciates this opportunity to provide comments on the proposed rule issued by the Department of Health and Human Services that would relax HIPAA privacy requirements with respect to the reporting of people with mental illness to the “National Instant Criminal Background Check System.” Established in 1980, Access Living is the Center for Independent Living for the Chicago metropolitan area. We are committed to our mission of fostering an inclusive society that enables Chicagoans with disabilities to live independent, fully-engaged, and self-directed lives. We serve as a cross-disability advocacy organization, and our consumers include people who live with mental illness.

We address Question 12 in the Proposed Rule. In effect, what are the implications of loosening HIPAA privacy guarantees to allow the identities of consumers of mental health services to be reported to the National Instant Criminal Background Check System? For the reasons set forth below, we oppose the proposed rule. The rule not only embodies the false assumptions and presumptions about mental illness and violence giving rise in the first place to the “mental health prohibitor” but would exacerbate the resulting stigma by removing privacy guarantees in HIPAA for individuals so identified, needlessly violating their civil rights.

1. There is no proven causal nexus between mental illness and violence

The American public, saturated with images of violent acts portrayed in the media as having been committed by people with mental illness, has come to associate mental illness with impulsivity, unpredictability, dangerousness, and violent crime. In fact, the majority of peer-reviewed research shows, at most, only a weak association between mental illness and violence in the community. Epidemiological studies in the community have found that the vast majority of people with serious mental illnesses do not commit violent acts toward others and that the vast majority of violent acts are not attributable to mental illness.

Countering the public perception that people with serious mental illness in the community rather than in institutional settings are responsible for much violent crime, a very recent study by the Judge David L. Bazelon Center for Mental Health Law examined the correlation between the availability of psychiatric hospital beds within states and firearm murder rates in those states. It found a “strikingly low” (indeed, not even statistically significant) correlation. “Low per capita numbers of public psychiatric hospital beds in states were not associated with higher rates of murder by firearms, and states with relatively greater numbers of beds were not associated with lower firearm murder rates.” Information from 2007 showed a zero correlation between available psychiatric beds and firearm murders.

In fact, persons with mental illness are far more likely to be at risk for becoming victims of violence. People with severe mental illness are 2.5 times more likely to be attacked, raped, or mugged. People with schizophrenia who live in the community are at least 14 times more likely to be victims of a violent crime than to be arrested for one.

2. Using the “mental health prohibitor” as the basis for otherwise unlawful
disclosure under HIPAA compounds the original error and stigma.

Sadly, the “mental health prohibitor” reflects at legislative and policy levels the same inaccurate and stigmatic public images fostered by media accounts and refuted by countless reputable studies. The prohibitor includes not merely proven dangerous behavior but, in effect, “status offenses.” Absent any evidence of dangerousness, its overbreadth reaches people who are involuntarily committed to a psychiatric facility, people who have been adjudicated incompetent to stand trial or not guilty by reason of insanity, and people adjudicated to have a serious mental condition rendering them incapable of managing their own affairs. A presumption of dangerousness in any of these instances is unwarranted, as proven by the numerous studies cited above. It would have made far more sense to compile a list of people with no mental illness but with impulse control disorder, rage attacks, and anger management issues as a meaningful “prohibitor” requiring background checks.

Taking this stigmatic assumption another step, the proposed rule would allow disclosure of the identity of individuals falling within the “mental health prohibitor” and remove HIPAA and confidentiality protections that continue to cover other individuals. Allowing the inaccurate and unfounded “mental health prohibitor” to identify a class of individuals whose privacy rights are violated serves only to exacerbate the harm and stigma already visited upon those individuals.

The salutary aspects of maintaining confidentiality around medical information are numerous:
Encouraging patients to fully disclose information knowing that it will not be divulged fosters more accurate diagnoses and more effective treatment.
Patients who are already facing health conditions and decisions should not be saddled with the additional fear that they will be harmed by disclosure of confidential information.
Undermining faith in the confidentiality of medical information can, and does, lead some patients to delay or forgo medical care.
Respecting the patient’s wish to protect confidential disclosures is a way to respect that patient’s individual dignity and choice.

A public safety disclosure option already exists. The duty to maintain confidentiality may ethically be breached where a patient threatens bodily harm to him- or herself or another person.
Undermining all of these benefits simply because an individual has been given the status of serious mental illness is intolerable. We therefore oppose the proposed rule.

We thank you for this opportunity to comment on this important matter.

Very truly yours,

Marilyn Martin
Health Access Policy Analyst
Access Living, Chicago