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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.





Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







January 28, 2016


 Health and Welfare Law Alert




New HIPAA Privacy Rule Allows Disclosures of PHI for Firearms Background Checks 





The U.S. Department of Health and Human Services ("HHS") has issued a final rule that amends the HIPAA Privacy Rule to allow certain covered entities to disclose to the National Instant Criminal Background Check System ("NICS"), without consent, the identities of individuals who are prohibited by law from possessing or receiving firearms because of mental health issues.



Background.  HIPAA governs how covered entities (i.e., health plans, health care clearinghouses and health care providers) may use and disclose protected health information ("PHI").  PHI includes individually identifiable health information (e.g., names, social security numbers and addresses) when such information is connected to health data.  In general, covered entities may only use and disclose PHI without an individual's prior authorization if such disclosure is expressly permitted under the HIPAA Privacy Rule.



Current Federal law prohibits certain individuals from receiving or possessing firearms.  Specifically, this prohibition applies to individuals who have been: (i) involuntarily committed to a mental health institution, (ii) found incompetent to stand trial or not guilty by reason of insanity, or (iii) otherwise determined by a court, board, or other legal authority to be a danger to themselves or others or unable to manage their own affairs as a result of significant subnormal intelligence, or mental illness, incompetency, condition or disease. 



Final Rule.  Under the final rule:


  • Limits who may disclose.  Only covered entities that order involuntary commitments or make other relevant adjudications that subject individuals to the Federal mental health prohibition may disclose to the NICS.
  • Limits who may receive PHI.  Covered entities may only make disclosures to the NICS or one of its designated repositories. 


NOTE:  Covered entities may not make disclosures for other law enforcement purposes or to other law enforcement agencies unless another Privacy Rule provision permits the disclosure.


  • Limits what information is disclosed.  Disclosures made under the final rule are limited to the information necessary for NICS reporting (e.g., name, date of birth, gender, identity of the submitting entity, and the applicable prohibition code(s)). 


NOTE:  Covered entities may not disclose the underlying diagnoses or treatment records.




It is important that covered entities understand what the final rule does not do.  Specifically, the final rule does not:


  • apply to most covered entities.  The final rule only applies to those covered entities with authority to make adjudications or commitment decisions that subject an individual to the Federal mental health prohibition.
  • create an obligation to disclose.
  • change who is subject to the mental health prohibition for firearms.





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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.