Mental Illness, HIPPA and NICS

Health and Human Services Seeking Comments Before Modifying HIPPA Rules Concerning Mental Illness Reporting to Background Check System

National Instant Criminal Background Check System (NICS)

The NICS is a computerized system for determining eligibility to purchase a firearm in the United States. Federal Firearms License holders use the NICS to determine if they are able to sell a firearm to a prospective purchaser.  The program was created as a result of the Brady Handgun Violence Prevention Act of 1993 and is administered by the FBI.  Firearm sales can only be made if the buyer is not prohibited from buying a firearm under the Gun Control Act of 1968.

The sources of information in NICS

The information in NICS is obtained from the National Crime Information Center (NCIC) and the Interstate Identification Index (III).  NICS Index also contains information that may not be in the NCIC or the III systems. Information is gathered from local, state, tribal, and federal agencies of persons prohibited from obtaining firearms.

Reasons to prohibit purchases 

According to the FBI, Section 922(g) of the Gun Control Act prohibits shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm which has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:

• Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year
• Is under indictment for a crime punishable by imprisonment for a term exceeding one year
• Is a fugitive from justice
• Is an unlawful user of or addicted to any controlled substance
• Has been adjudicated as a mental defective or committed to a mental institution
• Is an alien illegally or unlaw-fully in the United States or who has been admitted to the United States under a nonimmigrant visa.
• Has been discharged from the Armed Forces under dishonorable conditions
• Having been a citizen of the United States, has renounced U.S. citizenship
• Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner
• Has been convicted in any court of a misdemeanor crime of domestic violence

http://www.healthandfitnessvault.net/

Mental Health Exclusion

The NICS Section receives telephone calls from mental health institutions, psychiatrists, police departments, and family members requesting placement of individuals into the NICS Index. Frequently, these are emergency situations and require immediate attention. Any documentation justifying a valid entry into the NICS Index must be available to the originating agencies.

HHS seeks to clarify HIPPA rules related to reporting

Health and Human Services published a Notice of Proposed Rulemaking (NPRM) on January 7, 2014, to remove unnecessary legal barriers under the HIPAA Privacy Rule that may prevent states from reporting certain information to the National Instant Criminal Background Check System (NICS). The NICS helps to ensure that guns are not sold to those prohibited by law from having them, including felons, those convicted of domestic violence, and individuals involuntarily committed to a mental institution. However, the background check system is only as effective as the information that is available to it.

The goal is to remove barriers

On April 23, 2013, the Department published an Advance Notice of Proposed Rulemaking (ANPRM) requesting the public’s input on how HIPAA may affect some states’ ability to report to the NICS and ways in which these barriers could be addressed without discouraging individuals from seeking mental health services.  Over 2,000 comments were received from individuals, state agencies, health care providers, professional organizations, consumer advocacy groups, and other stakeholders.  After considering the public comments received, the Department developed a NPRM, which proposes to modify the HIPAA Privacy Rule to permit certain HIPAA-covered entities to disclose to the NICS the identities of persons prohibited by federal law from possessing or receiving a firearm for reasons related to mental health.

Would grant permission, not requirement, to submit minimum necessary

The proposal would give states and certain covered entities added flexibility to ensure accurate but limited information is reported to the NICS, which would not include clinical, diagnostic, or other mental health information.  Instead, certain covered entities would be permitted to disclose the minimum necessary identifying information about individuals who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.  Importantly, the proposed permission focuses on those entities performing relevant commitments, adjudications, or data repository functions.  The proposed modifications would merely permit, and not require, covered entities to report to the NICS.  In addition, the proposed rule would not change the existing permitted uses and disclosures of protected health information under the HIPAA Privacy Rule.  The deadline for comment is March 10, 2014.

Cited Sources: http://www.fbi.gov/about-us/cjis/nics/general-information/nics-index

and 

http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/NICS/

Due Diligence by Investigators

Expand your understanding of the deal by looking at your target from a different viewpoint

Steady pace of deals foreseen

A new year and predictions come out like snowflakes in January.  The mergers and acquisitions crowd is no different.  A recent poll in published in M&A magazine sponsored by KPMG predicted a “solid” 2014 as far as deal activity was concerned.  The poll asked the respondents several questions related to what they felt were critical drivers for deal creation and deal success in the coming year.  One of the items that kept popping up was the value of having solid Due Diligence as part of the deal.    

Define what you mean

Due Diligence can mean a lot of things depending upon who you ask as the concept can be applied across disciplines.  Accounting comes to mind.  As does finance and banking.  Several firms claim to have the right mix of research that covers all angles.  While this may be true, many other qualified outfits are out there who are specialized in specific types of research they can contribute to the overall research of the deal.  And because not all deals are the same, picking and choosing the right vendor to supply you with the information needed should be part of overall Due Diligence strategy.

Breaking down Due Diligence

For certain, CSI is not an accounting firm, nor do we possess the skill set required to analyze financial statements, investments and tax returns.  But we do offer something that enhances the overall value of Due Diligence. Investigative Research can cover a lot of ground but to simplify, the basic services are background checks and asset identification.  These items are not always considered as part of the Due Diligence equation but adding them can certainly fill critical gaps.  This information provides necessary insight into the business, its principles and their private and public lives.  And while not all bad information leads to a deal breaking apart, it certainly puts the deal makers in a better position to make decisions.

See your target in a different light

gideongartner.com

Public record research coupled with social media investigations have helped many clients understand the types of people they may be working with as deals unfold.  This information can apply to cultural integration of two merging companies to ensuring critical personnel are leading the type of lifestyle befitting their employment. Further, identification of assets held by company owners may go a long way to explaining balance sheet anomalies.

But merely gathering this information into a report is not enough.  If this research is part of a Due Diligence plan, it is important that the information gathered is organized and presented in a context that demonstrates an understanding that goes beyond the regurgitation of mere fact.  If the output ends up being confusing and imprecise, then that hinders the deal maker’s ability focus on the deal and mitigates the value of the research. Not good.

Focus on the deal; trust the research to the experts

If considering expanding the reach of Due Diligence research beyond financial statements, consider the following:

1. Even though there is a vast amount of information on the internet, don’t fool yourself into thinking you are capable of conducting background and social media research on your own.  Just because information is out there does not make you an investigator who knows ins and outs of the craft.  
2. Research into someone’s background can be quite extensive.  Set parameters with your researcher prior to engaging these services to ensure a focused outcome.
3. While you may have parameters set, investigative research may reveal leads which you may find worthy of exploring further.  If these arise, take additional time to consider expanding the research if the outcomes may be beneficial.    
4. Seek out a researcher with experience with M&A. Knowing the language of the deal makes explaining your needs that much easier. 
5. Demand a report that fits your needs.  If you want more information, less information, a summary, analysis or recommendations, ask for it.