HIPAA-proof: Attorney General confirms legality of mental health check rules

In the past few weeks, opponents of Ohio's new concealed handgun licensure law have been attempting to claim that a year-old Federal privacy law governing medical records (HIPAA) made it impossible to complete the background checks prescribed in House Bill 12 for CHL applicants.

We told you weeks ago, and now the Ohio Attorney General has now confirmed it: they've been making much ado about nothing.

April 2, 2004
Canton Repository

COLUMBUS — Proposed rules for mental health background checks of people who want to carry concealed weapons could cause problems for treatment centers that must keep certain records private, a hospital organization’s lawyer said Friday.

The state, however, says the information needed could be acquired through the courts, which are not subject to the same restrictions.

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The law allowing people to carry hidden guns, which takes effect Thursday, bars permits for people committed to mental health treatment centers by courts or committed against their will by family or guardians. A judge must approve all such commitments.

The names of people fitting those criteria would have to be reported to the state for mental health checks for concealed weapons permits, under rules proposed Friday. The rules specify that a person involuntarily committed to a mental hospital only for observation is exempt from the ban.

Karen Cincione, a lawyer representing the Ohio Council of Behavioral Healthcare Providers, said the rules may differ with federal disclosure rules. Mental health centers, in particular, could have problems releasing information on their patients, she said.

Cincione is concerned some provisions in the rules would violate federal patient privacy laws, she said. The laws generally prevent hospitals from releasing patient information without the patient’s consent. The law provides exceptions if the information is necessary to obtain treatment or payment for insurers or hospitals.

“However, none of those exceptions appear to be applicable to permit community health agencies to make the disclosures required by the proposed rule,” Cincione said.

Attorneys in Petro’s office took the privacy laws into consideration when they drafted the rules for the background checks, said Jonathan Fulkerson, an assistant attorney general.

“We have tried to incorporate as much as we can from the folks in the field who are the experts,” Fulkerson said. “The rule mirrors the privacy statute.”

Probate judges’ records are public, including the names of people involuntarily committed for treatment of mental illness, said Judge Charles Hogue, president of the Ohio Association of Probate Judges.

“The probate courts see no problem reporting that to the attorney general or to anybody,” said Hogue, juvenile probate judge for Ashtabula County. However, the medical records of people committed by a court are sealed, he said.

Petro’s proposal to require judges and mental hospitals to forward that information was sent to a legislative agency that sets rules for pending laws. It likely will be heard on April 26.

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Could Ms. Cincione really be this incompetent or unfamilar with the laws which apply so heavily to her job as legal counsel to the Ohio Council of Behavioral Healthcare Providers?

Even the Ohio Hospital Association (which has proven it is no friend to Ohio's law-abiding citizens) is distributing a letter to its members (.pdf), advising that it is legal to release the records (and ONLY the records) AG Petro is requesting under HB12.