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HHS Details ‘Red Flag Law’ HIPAA Exemptions

Advocate Masthead

ACP supports ERPO laws and the physician's role in providing information about a patient's health concerning an ERPO request

Jan. 21, 2022 (ACP)—The U.S. Department of Health and Human Services recently clarified the physician's role in extreme risk protection order (ERPO) or “red flag laws” when they involve protected health information—a move that the American College of Physicians supports.

The new guidance states that health care professionals can provide information about a patient's health concerning a request they receive about an ERPO without violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule in certain circumstances. This action places internists on the front lines when it comes to preventing firearm-related injury, suicide and danger from intimate partner violence.

“The recent guidance from the Office for Civil Rights (OCR) clarifies that HIPAA allows physicians and other clinicians to disclose protected medical information without a patient's permission in limited circumstances as part of an application for an extreme risk protection order,” said Renee Butkus, ACP director of health policy. “This guidance will allow physicians and other clinicians to support ERPOs while complying with HIPAA.”

Under the new guidance, doctors can disclose information to support an ERPO application in several circumstances, including when the disclosure is required by law, when it is in response to an order of a court or administrative tribunal, and/or when it is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.

“HIPAA should not be a barrier to communication for law enforcement, concerned family members, health care providers, and others when they see an individual in crisis,” OCR Director Lisa J. Pino said in a news release. “[This] guidance helps clarify legal requirements and to better support individuals in crisis.”

ERPOs provide a proactive way to temporarily restrict a person from accessing firearms when they are at risk for hurting themselves or others, Butkus explained.

Depending on the state, family members or law enforcement can go to court and seek an order that would allow police to remove guns from an individual's home and restrict their ability to purchase firearms if that individual poses a threat to himself/herself or others, Butkus explained. These orders generally require affidavits from witnesses or the petitioners who support the application, and sometimes, it involves the disclosure of protected health information from a medical professional.

“If the judge agrees that this person is a threat, guns would be temporarily removed from the home of the individual—for as few as several weeks to up to a year—and in some jurisdictions, physicians and other clinicians are able to petition courts themselves,” Butkus said.

Nearly all existing ERPO laws allow for physician input to aid the court's decision, she said. As of January 2022, 19 states and the District of Columbia have implemented red flag laws.

“It is important that physicians know the status of ERPO legislation in their state and what roles they may be called on to play in ERPO implementation,” Butkus said.

ERPOs are part of a multipronged effort to reduce firearm violence. “There has been a great deal of momentum on the state level to reduce firearms-related injuries and deaths, including through legislative initiatives, and ERPOs could help reduce suicides and homicides,” Butkus said. “The climate for commonsense laws to prevent injuries and deaths from firearms is more favorable in many states than it has been in the past.”

More Information

ACP has developed a toolkit for chapters to help advance gun safety legislation in their states, including ERPOs along with other commonsense measures.

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Back to the January 21, 2022 issue of ACP Advocate